A lawyer has a right to appeal a sanctions award against the lawyer even if that lawyer is not a party to the underlying lawsuit. It is equally undisputed that a timely notice of appeal is a jurisdictional requirement. So what happens when a lawyer who wishes to appeal from an order directing the lawyer to pay monetary sanctions files a notice of appeal listing only the lawyer’s client as the appellant? In K.J. v. Los Angeles Unified School District (Jan. 30, 2020, S241057), ___ P.3d.___, the California Supreme Court holds that such a notice of appeal is adequate to confer appellate jurisdiction where the respondent is not misled regarding the nature of the appeal: [W]hen it is clear from…
-
-
Should a respondent always move to strike a defective appellant’s opening brief?
A brief must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) A party may move to strike the adverse party’s brief if it fails to comply with this or other requirements of rule 8.204. (Rule 8.204(e)(2).) A leading practice guide advocates that a respondent should immediately file a motion to strike an appellant’s opening brief, that is “so defective that it appears likely the appellate court will order it stricken in whole or in part [.]” (Eisenberg, Cal. Prac. Guide: Civil Appeals & Writs (The Rutter Group…
-
Long-derided Clemmer v. Hartford Insurance Co. clarified by Supreme Court: an order denying a motion to vacate under Code of Civil Procedure section 663 is appealable
In 2007, I wrote about the questionable rule of Clemmer v. Hartford Insurance Co. (1978) 28 Cal.3d 865, which concluded that an order denying a motion to vacate made under Code of Civil Procedure section 663 (a “section 663 motion to vacate”) is not appealable: Probably no Supreme Court opinion has been more ignored by the Courts of Appeal than Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865. In Clemmer, the Supreme Court concluded, without explanation, that an order denying a motion made pursuant to Code of Civil Procedure section 663 to vacate the judgment and enter a new judgment is not appealable and dismissed the appeal. Because it…
-
The patience of the Court of Appeal has its limits
I wrote the other day about one aspect of Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) (its illustration of the rule that a court of appeal may affirm on an alternate ground supported by the record), but there is a second lesson to glean from the case, regarding the limits of the appellate courts’ patience with counsel’s untimely submissions. In general, deadlines for appellate briefs are easily extended. One usually sees the limits of an appellate court’s patience in an order granting an extension, with the admonition NO FURTHER EXTENSIONS. Even that may not be the end of the court’s patience. If you miss that deadline, there’s always California Rules…
-
Affirming on appeal on an alternate ground – the rule as applied to section 473(b) motions for relief
Sometimes, the trial judge’s reasoning underlying a judgment is so obviously wrong that it seems to present a “slam dunk” appeal. But the rules of appellate review favor the judgment below, and that slam dunk (really, there is no such thing on appeal) can turn out to be a miss. The appellants in Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) learned this the hard way. The appellants were defendants who successfully moved for an entry of dismissal after the plaintiff failed to file an amended complaint following an order sustaining demurrers with leave to amend. The plaintiff filed a motion under Code of Civil Procedure section 473(b) to set aside the…
-
The twists and turns of precedent
Lawyers, and especially appellate lawyers, talk about “precedent” all the time, but do we regularly consider the rationale behind the rules of precedent and stare decisis? Mary Whisner does. Whisner is a reference librarian at the University of Washington College of Law, and sets forth some of her views in a paper called Exploring Precedent, brought to us courtesy of the Legal Writing Institute and the Social Science Research Network. Here’s the abstract: Legal researchers have many powerful tools for finding cases: Full-text searching with different interfaces from different providers, annotated statutes, digests, and a wide variety of secondary sources. But there are areas where even experienced researchers are puzzled: When will…
-
To the Court of Appeal, there is no such thing as a “wrongly decided” Supreme Court case
Last week, I wrote about Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), describing how the appellant there benefited from a Supreme Court decision (Iskanian) that came out after the judgment from which the appellant appealed, and which so squarely addressed the issue on appeal that the Court of Appeal spent only a paragraph on its substantive discussion of the case. Given that controlling authority and the rules of stare decisis, under which a California Supreme Court opinion binds all lower courts in the state, what could the respondent — or any similarly situated respondent — do? First, a respondent can look for ways to challenge the appealability of the judgment, as the Miranda respondent…
-
The lack of a reporter’s transcript can kill your appeal
Jameson v. Desta, case no. D066793 (4th Dist. Oct. 20, 2015) is a grim reminder of the impact made by the court’s budget crisis, which resulted in the loss of many court-employed court reporters, requiring that parties provide their own court reporters for trial at their expense. The trial in this case went unreported, and that was enough to keep the plaintiff from prevailing on appeal. But before I get to how that came about, let me briefly describe the history of the case, for it makes the result all that much more heartbreaking for the plaintiff. Plaintiff sued a prison doctor for malpractice. The doctor obtained a judgment on procedural grounds, plaintiff appealed,…
-
It is important to keep up with the law while your appeal is pending
Most lawyers I know — at both the trial level and the appellate level — keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisions published the day before. It is an important habit, because you never know when a great decision for your pending case is going to come up. For a great example, see Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), where the plaintiff/appellant gained the benefit of a Supreme Court decision that came out while his appeal was pending. The Supreme Court case, Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, required reversal of the judgment that…
- Appellate Jurisdiction, Appellate Procedure, Criminal Procedure, Jurisdiction, Prop 47 Reductions, Wende Review
Third District Court of Appeal creates a “quagmire” regarding Prop 47 sentence reductions
You don’t have to take my word for it. The court uses the word “quagmire” in yesterday’s decision in People v. Scarbrough, case no. C075414 (3d. Dist. Sept. 29, 2015), in which it holds that a trial court lacks jurisdiction to recall and reduce sentences under Proposition 47 when the judgment for those crimes is on appeal. First, a brief reminder of what the California electorate voted into law last November. Prop 47 reclassifies certain crimes from felonies to misdemeanors and provides that persons convicted of felonies that are now classified as misdemeanors may “petition for a recall of sentence” to request resentencing under the new standards. You can imagine there are quite…
-
The kitchen sink has no place on appeal
We’ve all heard of doctors lamenting the need to order lots of tests for the most mundane symptoms in order to protect themselves from malpractice lawsuits. Are lawyers exhibiting equivalent behavior? Last week, a post at the Lawyerist blog (Want To Destroy Your Case? Throw In The Kitchen Sink.) featured a federal district court decision adopting the recommendations of the magistrate judge to order sanctions all around in a sexual harassment lawsuit — i.e., all of the attorneys on both sides had monetary sanctions imposed against them. On the plaintiff’s side, the attorneys were sanctioned for what Lawyerist called “evidence-free sexual harassment and retaliation allegations.” On the defense side, the attorneys representing the…
-
No appeal from order vacating partial arbitration award
One of the frustrations for parties forced to arbitrate their claims rather than pursue them in court is the unavailability of a direct route of appeal from the arbitration award. Generally, the only way to get out from under an adverse award is to petition the superior court to vacate the award (Code Civ. Proc., § 1285 et seq.), and then only on very limited grounds such as fraud, corruption, or misconduct by the arbitrator, generally unrelated to the substantive merits of the decision. If you’re on the other side — i.e., you were the prevailing party in the arbitration — you can take some comfort from the fact that if the…
-
The Court of Appeal Time Machine – Interest Calculations on Modified Judgments
If you obtained a judgment against your former client for over $7.7 million, and had the court of appeal knock it down to around $1.7 million, and the trial court entered judgment in that reduced amount 14 months after the date of the original judgment, you would want interest to run on the judgment — even from the reduced amount — from the date of the original judgment, right? Of course you would. After all, 14 months of interest at a simple 10% on the $1.7 million amount is nearly $200,000. That’s not pocket change. (Well, not for me, anyway.) But in Chodos v. Borman, case no. B260326 (2d Dist. August 18, 2015),…
-
The standard of review on appeal regarding enforceability of arbitration clauses
As I’ve mentioned before, the standard of review is not always clear. One sometimes has to “drill down” past the obvious, and the “abuse of discretion” standard is full of nuance. The parties’ briefs may even fight over which is the correct standard of review to apply, or the cases may be split on the issue. Sometimes, where the standard is in dispute, it doesn’t matter, because the outcome is the same under either standard. There is no question as to what standard of review applies in yesterday’s decision in Carlson v. Home Team Pest Defense, Inc., case no. A142219 (1st Dist., August 17, 2015), but the case nonetheless has a lesson in…
-
Mandatory E-filing comes to the Third District Court of Appeal
Details here. The court has adopted a new Local Rule 5 covering e-filing procedures, which become effective September 14. It looks like documents need to be filed through the proprietary TrueFiling system. If you have an appeal pending in the third district now, make sure you register for the e-filing system promptly.
-
How hanging out with the wrong crowd might doom your appeal of your criminal conviction
Don’t be too alarmed at the title of this post. I’m not saying that the Court of Appeal will take the character of your known friends into account when deciding your appeal. I’m referring to convictions arising out allegations that members of a small group participated in a crime together. If there is no direct evidence that a particular defendant did any particular act, might being one of the group on the scene be enough to convict? That all depends on what the defendant did with the group and what the group did. In In re Kevin F. (People v. Kevin F.), case no. A140445 (1st Dist., August 10, 2015), the court…
-
Are records on appeal from the Los Angeles Superior Court about to get better?
The headline is not a dig at anyone at the Los Angeles Superior Court (LASC). It refers to the impact of the statewide court budget crunch, which led many courts to stop providing court reporters as a matter of course. Faced with having to engage court reporters on their own, some litigants were foregoing the expense, at risk of having records inadequate to prosecute their appeals. As a result, parties are appealing decisions without the reporter’s transcript that they would have been able to order under the old system. That can spell trouble for an appeal. Last Friday, the LASC announced that it is hiring court reporters. Actually, I can’t tell…
- Announcements, Legal Writing, Summary Judgment, Summary Judgment and Summary Adjudication, Waiver of Issues
SB 470 codifies Reid v. Google, Inc., provides that objections to summary judgment evidence are preserved for appeal
On Monday, according to this article at The Recorder, Governor Brown signed SB 470, amending Code of Civil Procedure section 437c, which governs procedure for motions for summary judgment and summary adjudication. For appellate practitioners, the significance of the bill lies in its codification of Reid v. Google, Inc. (2010) 50 Cal.4th 512. Reid held that objections to evidence submitted in support of a motion for summary judgment are preserved for appeal even if the trial court fails to rule on the objections. Prior to Reid, the courts were split on whether such objections were preserved. I’m unaware of any lingering controversy over the issue since Reid, but it is nonetheless satisfying to see its holding codified.…
-
Is your notice of appeal likely to generate settlement leverage?
Every so often, I get a prospective appellant who is convinced that filing his notice of appeal will intimidate his adversary, prompting him to “come to the table” to hammer out a deal. Good luck with that. It’s not that cases cannot settle on appeal. It’s that most of the time, the mere act of appealing or filing a writ petition does not generate much leverage because the odds are inherently against the success of the appeal. Consider that the reversal rate on appeals generally hovers between 20% and 25%. Would you be intimidated by those odds? That said, cases do settle on appeal, and some factors in a given…
-
California Supreme Court invites your comment on proposed changes to publication rules involving cases accepted for review
I expect that in this age of electronic research, most lawyers have experienced the frustration of finding the “perfect” case, only to learn it is unpublished and therefore could not be cited as precedent. (See rule 8.1115(a), Cal. Rules of Court.) Even in the “old days,” when research was limited to hard copy books, you could still find the perfect cases whisked out from under you, either because it was later disapproved or, more frustratingly, had been accepted for review by the Supreme Court, which has the effect of automatically de-publishing the case. (See rule 8.1105(e)(1), Cal. Rules of Court.) That may change. Yesterday, the Supreme Court posted for comment…
-
The appellate angle in Marriage of Davis
Family law attorneys are buzzing this week about Monday’s unanimous Supreme Court decision in Marriage of Davis, case no. S215050 (July 20, 2015). The Metropolitan News-Enterprise summed up the holding this way: “A married person cannot be considered separated, and thus permitted to keep his or her earnings as separate property, while continuing to live with his or her spouse[.]” The court itself referred to its ruling as a “bright-line” rule. Not so fast, folks. My friend Claudia Ribet has a column in today’s Daily Journal (link requires subscription) discussing the subtleties in the decision and concurring opinion, concluding that it may not even reduce litigation over the “separate and apart” issue…
-
Overcoming the abuse of discretion standard on appeal of an attorney fee award: what did the trial court actually do?
Respondents use the “abuse of discretion” standard for all it’s worth when defending against appeals, and they should. Often, it’s one heck of a shield. But there are limits to relying on this standard of review, and the Court of Appeal will reverse in appropriate circumstances. One such example is last week’s decision in McKenzie v. Ford Motor Co., case no. G049722 (4th Dist., July 10, 2015). Plaintiff rejected one settlement offer in this “lemon law” case, but settled a few months later. The settlement was entered as a judgment. It required Ford to buy back the “lemon” automobile and allowed the plaintiff the option of accepting payment of $15,000…
-
Don’t give up when your motion to dismiss an appeal is summarily denied
The term “summary denial” sounds pretty bad when you are the party seeking relief. It has an air of finality. Sheesh, not even a hearing on the merits! But a summary denial is not final in every context. This was recently pointed out in Ellis v. Ellis (2015) 235 Cal.App.4th 837, in which the respondent moved to dismiss the appeal as untimely. The court summarily denied the motion. After the appeal was fully briefed, however, the court advised the parties to be prepared to address the timeliness of the appeal at oral argument, heard argument, and ultimately granted the motion. While I am sure the respondent would have preferred such a ruling…
-
How the nature of your appellate challenge can affect whether your appeal is dismissed for failure to obey trial court orders
The disentitlement doctrine allows a court of appeal to dismiss an appeal as a sanction for the appellant’s refusal to comply with trial court orders that remain in force while the appeal is pending. The lesson to be learned from today’s decision in Ironridge Global IV, Ltd. v. ScripsAmerica, Inc., case no. B256198 (2d Dist., June 30, 2015) comes from its discussion of how the right kind of appellate challenge to a trial court order — specifically, a jurisdictional challenge — can serve as a defense to the imposition of a dismissal sanction under the disentitlement doctrine. Unfortunately for the defendant-appellant in Ironbridge, calling a challenge a jurisdictional one does not…
-
No judicial notice for a law of physics, but for a different reason than you might expect
I had to take the “high track” physics courses as part of my electrical engineering major curriculum at Canoe U. In fact, I liked my physics classes more than my engineering classes, and regret to this day I did not major in physics. So the discussion in Bermudez v. Ciolek, case no. G049510 (2d Dist., June 22, 2015), in which the court refuses to take judicial notice of a law of physics, caught my eye. Bermudez is an automobile accident case, in which defendant Ciolek was the driver of a car that collided with a second car driven by defendant Heacox, which in turn struck plaintiff, who was on the…
-
A break for some shipmates and a lesson on drilling down on the standard of review
As a graduate of the “Boat School” (or “Canoe U”), I went on alert as soon as I spotted a case in yesterday’s advance sheets regarding whether some local county employees’ time as U.S. Naval Academy Midshipmen (don’t call them “middies”) could enhance their county retirement credits. My shipmates came out on the winning end of things, and the opinion offers a lesson on appellate procedure. The issue in Lanquist v. Ventura County Employees’ Retirement Association (case no. B251179, 2d. Dist., March 16, 2015) is succinctly stated in the first paragraph of the opinion: Ventura County Employees’ Retirement Association (VCERA) permits employees to purchase retirement service credit for time spent…
-
Don’t lightly assume that you’ve extended your time to appeal with a post-trial motion
The parties in your case have stipulated to have their case tried before a temporary judge (pursuant to Cal. Const., art. VI, § 21) and filed all trial-related papers (trial briefs, closing briefs, and requests for statement of decision) directly with the temporary judge at his alternative dispute resolution service. So, where should you file your motion to vacate the judgment under Code of Civil Procedure sections 663 and 663a? The answer is: with the clerk of the superior court. (As all documents should be, pursuant to Cal. Rules of Court, rule 2.400(b).) The appellant in Gonzalez v. Aroura Loan Services, LLC, case no. B247366 (2d Dist., Nov. 17, 2014)…
-
Doesn’t anybody read the rules?
When is a brief written by a lay person likely to be of comparable quality to a brief written by lawyer for the other side in the same case? When both briefs stink: Brooks’s opening brief on appeal includes a statement of facts without any citation to the record. In the argument portion of the brief, references to facts are occasionally, but not consistently, supported by citations to the record. ECG’s respondent’s brief, which relies extensively upon facts developed at trial, does not include a single citation to the record. The failure to include citations to the record violates rule 8.204(a)(1)(C) of the California Rules of Court: Briefs must “[s]upport…
-
When winning is risky
Sometimes, an appeal doesn’t make sense to me. This can be true even if there are better-than-average odds of winning. When an appeal doesn’t make sense to me, I ask why the party wants to appeal. I’m sure that most of the time, the reaction is to think, “Isn’t it obvious? Because I lost!” But to my mind, that’s not always a good enough reason. As a matter of effective client relations, I get curious about motives when it seems to me, as an outsider, that a win on appeal would yield a negligible benefit or even risk making the appellant worse off. An example of the latter situation is…
-
Sometimes the standard of review is better than you might first think
Clients (and their lawyers) can be disheartened when they conclude that the ruling they want to challenge on appeal is subject to review for abuse of discretion — a standard of review that is indeed daunting. But keep in mind that rulings ordinarily subject to review for abuse of discretion may be subject to the much more appellant-friendly de novo (independent) standard of review, in which the court of appeal decides the issue without any deference to the trial court. The defendant-appellant in Children’s Hospital Central California v. Blue Cross of California, case no. F065603 (5th Dist. June 9, 2010) was able to take advantage of this situation. Blue Cross…