It’s hard not to be a pessimist when filing a petition for writ of mandate. Getting past a summary denial is always tough. But it’s pretty easy In re Copley Press, case no. 07-72143 (9th Cir. Mar. 4, 2008), where the Ninth holds that it has appellate jurisdiction to review the order. Thus, the court converts the writ proceedings into an appeal, then decides it on the merits. The order at issue is an order unsealing documents related to a plea agreement. The order rather obviously meets both criteria for review under the collateral order doctrine because it “conclusively decides an issue” and “it is effectively unreviewable on appeal from…
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Something Fishy about the “Smell Test” and the Standard of Review
A couple of interesting dissents filed today in a denial of rehearing en banc in United States v. Jenkins, case no. 06-50049 (9th Cir. Mar. 4, 2008). I blogged about the panel decision in this post because the decision resolved an open issue on the standard of review to apply when reviewing an order dismissing an indictment for prosecutorial vindictiveness. My post referred readers to California Appellate Report for Professor Martin’s write-up of the merits. Judge O’Scannlain, joined by five other judges, dissents from the order denying rehearing en banc, and Chief Judge Kozinski writes a second — and very brief — dissent to highlight Judge O’Scannlain’s criticism of the…
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Notice to One of Multiple Attorneys Suffices to Trigger Deadline to Appeal
It’s not that uncommon to see a party represented in a lawsuit by more than one law office. That party often requests service of documents be made on all of its attorneys. Notwithstanding such a request, the court of appeal holds in Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008) that the mailing of notice of entry of judgment to just one of multiple firms representing a party triggers the deadline for that party to file its notice of appeal. Adaimy claimed the notice of entry of the order denying his new trial motion was ineffective, thus giving him 180 days from the date of entry of…
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Comedy Club Finds Out there’s Nothing Funny about Appellate Jurisdiction
Even when an appeal arises from a trademark dispute between two parties in the comedy trade, appellate jurisdiction is serious business, as the appellant learns in Comedy Club, Inc. v. Improv West Associates, case no. 05-55739 (9th Cir. Sep. 7, 2007, amended Jan. 23, 2008). In this trademark license dispute in which the district court dismissed all claims in its order compelling arbitration, the appellant had 180 days to file its notice of appeal because the district court did not enter judgment on this appealable order. (Fed. R. App. P. 4(a)(7)(A)(ii).) But the appellant waited 287 days, until the arbitration was concluded and the arbitration award was confirmed, to do…
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More on Appealable Denials of Summary Judgment
Wow, who’d have thought two cases in two days involving interlocutory appeals from denial of summary judgment premised on qualified immunity grounds? Bingue v. Prunchak, case no. 05-16388 (9th Cir. Jan. 15, 2008) actually came out a day earlier than the case in my immediately prior post, but I’m catching up in reverse chronological order, so I saw it second. Anyway, in my first post on the topic, I reminded you that one exception to the general rule against interlocutory appeals is that an order denying summary judgment sought on qualified immunity grounds may be appealed. In Bingue, the plaintiff complained that the court could not review the denial of…
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Appeal from a Denial of Summary Judgment?
Can’t do it, right? Petition for a writ of mandate, instead. Right? Not so fast, as we are reminded by today’s decision in KRL v. Aquaro, case no. 06-16282 (9th Cir. Jan. 16, 2008). The case is an appeal from the denial of summary judgment that was sought on qualified immunity grounds, and the court notes that interlocutory appeal is allowed in such cases. The rule dates back to Mitchell v. Forsyth, 472 U.S. 511 (1985), which applied as its starting point the general rule that a decision of a district court is appealable if it falls within “that small class which finally determine claims of right separable from, and…
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Mootness with a Local Angle
Feldman v. Bomar, case no. 06-55675 (9th Cir. Jan. 10, 2008) caught my eye because of its local angle (full disclosure: I may also know one of the appellants; I know a fellow Boat School-er named Bob Puddicombe, but I have no idea if it’s the same guy). The case involves a challenge to an environmental action regarding Santa Cruz Island, one of the five islands in the Channel Islands chain just off our coast here in Ventura (links to sites about the Channel Islands National Park, one of the appellees, are here, here and here; the link to Santa Cruz Island is from one of these sites). As luck…
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Challenge to Post-Plea Sentencing Procedure does not Require Certificate of Probable Cause
After being found mentally competent to stand trial, Rodney Oglesby pleaded guilty to committing domestic violence, aggravated assault and — worst of all, or at least co-equal with his other crimes, at least according to PETA — killing a kitten. The competency finding was based, per the stipulation of the parties, on just one of the psychiatric reports. The other psychiatrist opined he was incompetent. Oglesby fought his court-appointed attorney every step of the way. He asked for, and was denied, new counsel, then accepted a plea deal offered by the People, in which his lawyer refused to join. In fact, his lawyer insisted that Oglesby was not competent. He…
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Post-Arbitration Petition Attorney Fee Order is Appealable
In Otay River Constructors v. San Diego Expressway, case no. D049612 (4th Dist. Jan. 7, 2008), the Court of Appeal holds that an order denying an award of contractual attorney fees to a party who succeeded in defeating a petition for arbitration in an action brought solely for that purpose is appealable. The court reasoned that where an action is brought solely to enforce a contractual arbitration provision, then a defendant’s defeat of that petition is effectively a final judgment because it disposes of the only issue before the court, even if further litigation is contemplated. Thus, an order denying an award of attorney fees to the party who successfully…
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My Article in Santa Barbara Lawyer
I am finally able to provide a copy of my article published in the September 2007 issue of Santa Barbara Lawyer. The article, which grew out of this blog post, is an examination of the historical and existing rules regarding the appealability of an order denying a statutory motion under Code of Civil Procedure section 663 to vacate the judgment and enter new judgment. It also proposes a resolution of the confused law on that issue. (Just in case the Supreme Court was looking for my advice.) I know, I know. Geeksville. The magazine still is not available online, but I scanned the article and have posted it for download.…
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Is a Sentence within the Range Stipulated in a Plea Agreement Appealable?
UPDATE (4/23/08): The holding described in this post was changed by the court’s amended opinion of April 17, 2008). See my coverage. The Ninth Circuit rejects such a challenge in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007), at least where the plea agreement was not contingent on the sentencing guidelines and the only error asserted was a miscalculation of the guidelines or failure to properly consider the factors in Title 18 United States Code section 3553. The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements…
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Appeal from Non-Appealable Order Does not Deprive District Court of Jurisdiction
Nasciemento v. Dummer, case no. 06-35062 (9th Cir. Nov. 21, 2007) presents a host of jurisdictional issues in a concise opinion. I recommend you read the entire opinion and will concentrate on just one of the issues here, since most of the principles in the opinion are well-established. Nasciemento purported to appeal from a non-appealable order of the Nevada district court that dismissed some, but not all, defendants and transfered the case to the Montana district court (the “transfer order”). After his appeal was dismissed, but nine days before the mandate issued, the Montana district court entered a discovery scheduling order. When the Montana court refused to extend time for…
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Are Stipulated Judgments Appealable?
Well . . . yes and no. Or better yet, mostly no, and occasionally yes. And to discover the difference between those that are and those that aren’t, an excellent starting point is yesterday’s decision in Harrington-Wisely v. State of California, case no. B190431 (2d Dist. Nov. 20, 2007). Plaintiffs in this case alleged 10 causes of action for damages and one for injunctive relief, alleging that their constitutional rights were violated by overly intrusive x-ray technology (more about that later) used by the California Department of Corrections to search visitors at certain state penitentiaries. The CDC successfully moved for summary adjudication on the class damages claims on the ground…
- Appellate Jurisdiction, Appellate Procedure, Attorney Fees, Costs, Federal Courts, Federal Procedure, Removal
Appeal after Remand to State Court: Was Removal Reasonable?
The Ninth Circuit reminds us in Gardner v. MEGA Life & Health Ins. Co., case no. 06-55045 (9th Cir. Nov. 19, 2007), that even though no appeal lies from an order remanding a removed action to state court, the removing defendant may appeal an order to pay costs and fees imposed in connection with the remand under 28 U.S.C. § 1447(c). Here, it pays off. MEGA was ordered to pay costs and fees when the action was remanded. It claimed the only non-diverse defendant, an individual, had been fraudulently joined for the purpose of defeating diversity jurisdiction because the statute of limitations had run as to that defendant. Applying the…
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Appellate Jurisdiction of a Non-Final Order: Denial of Eleventh Amendment Immunity
Everyone knows the general rule that an appeal lies only from a final judgment. But there are rare exceptions. State of Alaska v. EEOC, case no. 07-70174 (9th Cir. Nov. 8, 2007) illustrates one of them. Plaintiffs were political appointees in the Alaska Governor’s Office who, after their discharge, filed claims with the EEOC against the Governor’s Office alleging various forms of harassment and/or discrimination. The Governor’s Office moved for summary judgment on Eleventh Amendment immunity. The Administrative Law Judge felt he lacked jurisdiction to decide the Eleventh Amendment issue and certified the question to the EEOC. The EEOC, holding that “an agency will not rule on the constitutionality of…
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Domestic Violence Case Provides Grounds for Review Despite Mootness
It turns out that the Court of Appeal decided two cases yesterday, despite their mootness, on the ground that the issues presented involved important public policies and were “capable of repetition yet evading review.” Both are family law cases. (I wrote about the first in the post immediately preceding this one.) In the second, Gonzalez v. Munoz, case no. B197860 (2d Dist. Oct. 24, 2007), the issue arises under the Domestic Violence Protection Act, and the Court of Appeal gives greater insight into its decision (footnotes omitted) to decide a moot case: As this Las Vegas family law attorney observed just last year, “It is rare for a Court of…
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Siblings are Siblings Regardless of Parental Rights Termination
Catherine’s parental rights to Jose were terminated by the court. A few years later, she gave birth to Miguel and Miguel sought sibling visitation with Jose. (Welf. & Inst. Code, § 388.) In In re Miguel A., case no. D050694 (4th Dist. Oct. 24, 2007), the trial court denied the petition for visitation on the ground that Miguel and Jose never concurrently shared a parent because of the termination of Catherine’s parental rights prior to Miguel’s birth, and thus they were not siblings. The Court of Appeal finds error as a matter of law. Since section 388, subdivision (b) permits sibling status to be proven by blood, adoption, or “affinity…
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Court of Appeal to the Rescue Again
My case law blogging has been weighted heavily toward substantive legal developments this week because I haven’t seen anything really procedurally interesting. Then along comes County of Orange v. Superior Court, case no. G037562 (4th Dist. Oct. 3, 2007) to make my week. The County appealed from an order for genetic testing to determine paternity pursuant to Family Code section 7575. While the appeal was pending, the County filed “a petition for a writ of mandate, prohibition, or other appropriate relief and requested an immediate stay of the trial court proceedings.” The court of appeal treated the petition as one for supersedeas, and granted relief (i.e., stayed enforcement of the…
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Harsh Immigration Dissent
Normally, as a lot of you have figured out by now, I’m a jurisdiction “junkie.” Jurisdiction fuels the disagreement in Ramadan v. Keisler, case no. 03-74351 (9th Cir. Sept. 28, 2007), and the jurisdictional question is interesting (it concerns the effects of the REAL ID act), but I haven’t had time to evaluate it yet. I hope to get to it. But what caught my eye immediately was the dissent from this denial of a rehearing en banc. Eight judges join Judge O’Scannlain’s dissent, which starts: In a feat of interpretive creativity, the Court in this case has transformed a discretionary determination of an Immigration Judge (“IJ”) into a question…
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An Attorney’s Individual Right to Appeal Court Criticism
This post at Split Circuits excerpts a recent Federal Circuit case noting a split among the circuits as to when an attorney in a federal case has a right to appeal separately from his or her client. That decision, Nisus Corp. v. Perma-Chink Systems, Inc., case no. 06-1592 (Fed. Cir. August 23, 2007) notes that while the Seventh Circuit requires the imposition of monetary sanctions before an attorney may appeal a court order critical of the attorney, other circuits, including the Ninth, “permit an attorney to appeal from a judicial order in which the court states that the attorney has engaged in professional misconduct, holding that such a declaration is…
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Order Enforcing Legislative Subpoena is Appealable
Taxes sure seem to be at the heart of a lot of disputes between citizens and their government. Such is the case in City of Santa Cruz v. Patel, case no. H030689 (6th Dist. Sept. 18, 2007), where wrangling over the right of the government to audit business records to ensure compliance with tax law leads to an opinion on the appealability of orders compelling compliance with legislative subpoenas. The City sent out a notice to hotel operators that it would be conducting audits to determine operators’ compliance with an occupancy tax ordinance under which hotel operators were required to collect a tax on lodging and remit the proceeds to…
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When is an Order not an Order on the Merits?
When it trails the present hearing to another date, for one — at least if it purports to be an order terminating parental rights. Thus, the court of appeal dismisses an appeal from such an order in In re Q.D., case no. G038343 (4th Dist. Sept. 18, 2007). Mother appealed from a purported order terminating her parental rights. Mother, her attorney, and a Vietnamese translator were at the hearing on her behalf. Mother, through her counsel, waived her right to a contested hearing. Only after the court stated its findings and orders from the bench, including an order that parental rights be terminated, did Mother object. She claimed her waiver of a…
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Mother Ordered to In-Patient Drug Rehabilitation has Standing to Appeal, but Her Kids Don’t
The mother of three minor children is determined to be incapable of providing regular care and supervision for them. (Welf. & Inst. Code, § 300.) The children are placed with their maternal grandmother, with supervised visits from the mother. The juvenile court orders the mother to complete an in-patient drug treatment program as part of the disposition care plan of Austin women’s drug and alcohol treatment, and leaves all prior orders in effect, including the children’s placement and supervised visits from the mother. Do the children have standing to appeal? In In re Neil D., case no. B195487 (2d Dist. August 28, 2007, ordered published Sept. 17, 2007), the Court…
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Bankruptcy Court Order Enjoining Arbitration is Appealable
In Solidus Networks, Inc. v. Excel Innovations, Inc., case no. 06-17288 (9th Cir. Sept. 7, 2001), the Ninth Circuit holds that an injunction issued pursuant to 11 U.S.C. § 105(a) to stay arbitration to which the debtor is not a party is an appealable order. The court reasons that the injunction is effectively an extension of the automatic stay (11 U.S.C. § 362). Since the automatic stay itself is effectively an injunction issuing from the bankruptcy court,and orders denying or granting relief from the automatic stay are appealable, the Ninth saw “no reason to treat the instant injunction differently.” The court took up the jurisdictional issue on its own, demonstrating…
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Federal Vexatious Litigant Designation not Immediately Appealable
When a party and his attorney are sanctioned as vexatious litigants and ordered not to file additional complaints without court approval, must they immediately appeal from those orders (the “pre-filing orders”) or appeal instead from the subsequent entry of final judgment? That was the procedural question posed in Molski v. Evergreen Dynasty Corp., 05-56452 (9th Cir., Aug. 31, 2007). Evergreen moved to dismiss the appeals, contending that Molski and his lawyers’ joint notice of appeal, filed within 30 days of entry of the judgment, was filed more than 30 days after entry of their respective pre-filing orders. The Ninth says the appeals are timely. The order against the attorneys is…
- Appellate Jurisdiction, Appellate Procedure, Constitutional Law, Criminal Procedure, Double Jeopardy, Federal Procedure
Expansive Congressional Authorization for Government Appeals in Criminal Cases
In U.S. v. Stanton, case. no. 06-10519 (9th Cir. August 31, 2007), Stanton was convicted by a U. S. Magistrate Judge in a bench trial. He appealed to the District Court, which reversed his conviction. The government appealed from the District Court order. Stanton makes a two-pronged challenge to the government’s right to appeal. First, he contends that jurisdiction is lacking because the government may appeal only where authorized by Congress and the Criminal Appeals Act, 18 USC §3731, does not explicitly authorize the government to appeal from a district court order reversing a conviction entered by a magistrate and ordering an entry of acquittal. Right on both counts, says…
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Pre-Opinion Settlement Disclosed after Publication of Opinion Requires Vacation of Opinion and Dismissal for Mootness
On June 29, the Ninth Circuit reversed a preliminary injunction order that prohibited National Beverage Corporation “from selling or marketing its line of ‘Freek’ energy drinks in their current containers or containers confusingly similar to” the trade dress of plaintiff Hansen Beverage Company’s “Monster” energy drink. The decision gathered significant attention from blogs in the Ninth Circuit. Seattle Trademark Lawyer and IP Law Observer gave rather objective analyses. California Appellate Report and Appealing in Nevada were more opinionated about the result, appearing to come down on opposite sides. (Readers curious to see the packaging of the products can see the appendix to the opinion or, better yet, see the sharp…
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Mootness Requires Loss of Existing Controversy, Not Alternate Forum for Resolution of Issues on Appeal
“The ground has shifted considerably since the Marlins filed their original complaint for a declaration of rights.” If that sounds to you like a court about to examine whether that shifting ground has mooted the appeal, then you have a good ear. In Marlin v. AIMCO Venezia, case no. B188407 (2d Dist. August 16, 2007), tenants (or “Marlins”) filed a declaratory judgment action against their landlord for a declaration of their respective rights under the Ellis Act, which allows “landlords who comply with its terms to go out of the rental business by evicting their tenants and withdrawing all units from the market even if doing so would otherwise violate…
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Putative Class Members Lack Standing to Appeal after Dismissal of Uncertified Class Action
The appeal in Employers-Teamsters v. Watson Pharmaceuticals, case no. 04-56791 (9th Cir. August 16, 200) was from four consolidated actions brought by investment advisor Anchor Capital against Watson Pharmaceuticals, alleging violation of the securities laws. The trial court considered motions for the appointment of lead plaintiff pursuant to the Private Securities Litigation Reform Act (the “PSLRA”), 15 U.S.C. § 78u-4(a), including a motion from the appellants. Anchor Capital was appointed lead plaintiff. After Watson Pharmaceuticals successfully moved to dismiss on Rule 9(b) grounds (insufficiently specific pleading of fraud, Fed. R. Civ. P. 9(b)), the court granted Anchor Capital’s request to dismiss all four actions with prejudice. The appellants never filed…
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The Addition of Fees and Costs to a Judgment Does Not Restart The Clock on Time to Appeal from the Judgment
Torres v. City of San Diego, case no. D049111 (4th Dist. July 25, 2007, ordered published August 17, 2007), presents some curiously unique facts. The City of San Diego approved a resolution for the indemnification of pension board members against amounts incurred by them in actions relating to their scope of performance as board members. The board members later found themselves in need of indemnification — because of two lawsuits brought against them by the City! When their demand for indemnification under the resolution and under Government Code section 995 was refused, the members sued the city. The members prevailed on summary judgment, and the judgment entered on the motion…