• Appellate Jurisdiction,  Appellate Procedure,  Labor & Employment,  Ninth Circuit,  Writ Review

    Ninth Circuit: No Appeal from Order Denying Issuance of Notice of FLSA Collective Action

    The collateral order exception to the final judgment rule allows a circuit court to exercise its jurisdiction, even in the absence of an appealable final judgment, if the order appealed from meets certain prerequisites.  Providing a good lesson in the Ninth Circuit’s application of the exception is today’s opinion in McElmurry v. U.S. Bank Nat’l Assoc., case no. 05-36407 (August 8, 2007), in which the plaintiffs, seeking unpaid overtime pay, appealed from an order denying their motion to issue notice of a collective action under the FLSA. The Ninth Circuit explains the prerequisites for application of the exception (citations omitted): Jurisdiction exists in only a “small class” of cases that…

  • Appellate Jurisdiction,  Appellate Procedure,  California Procedure,  Family Law

    No Substitute for Certificate of Probable Cause to Appeal from Order on Bifurcated Family Law Issue

    Dissolution matters are often bifurcated.  Ordinarily, a party must await final judgment before appealing.  However, Family Code section 2025 provides a means of appealing an order on a bifurcated issue in the appropriate circumstance: “Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. Certification by the court shall be in accordance with rules promulgated by the Judicial…

  • Appellate Jurisdiction,  Appellate Procedure,  Criminal Procedure,  Federal Courts,  Ninth Circuit,  Waiver of Issues

    Defendant’s Waiver of Right to Appeal Does Not Deprive Ninth Circuit of Appellate Jurisdiction

    Ninth Circuit Blog has a pretty good write-up on last Wednesday’s Ninth Circuit en banc decision in United States v. Castillo, case no. 05-30401 (July 25, 2007), in which the court vacates the panel opinion and holds that it has jurisdiction to hear a criminal defendant’s appeal based on a pre-plea motion where the defendant waived appeal of pre-plea issues as part of his guilty plea.  Federal Rules of Criminal Procedure cannot expand or contract subject matter jurisdiction, and it cannot be waived. In my observation, the tendency to confuse jurisdiction with procedure is way too common.  I recently posted, for example, about confusion between forum selection and jurisdiction in…

  • Appellate Jurisdiction,  Appellate Procedure,  California Court of Appeal,  California Procedure,  California Supreme Court,  Notice of Appeal

    Will the Supreme Court Revisit Clemmer v. Hartford Insurance Company?

    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 reached this conclusion without explanation, despite precedent to the contrary, and because the dismissal had no procedural effect (the issues raised were heard on appeal from the underlying judgment), this conclusion in Clemmer has been characterized as dictum and has generally not been followed. See…

  • Appellate Jurisdiction,  Appellate Procedure,  Waiver of Issues

    Can a Trial Court Require Parties to Waive Appellate Review?

    Howard Bashman is prompted to explore this question in his Law.com column this week because the trial court in a civil case he is handling on appeal insists that it required the parties to waive their rights to appeal as a condition of the court’s ruling on the merits of their dispute.  Bashman contends the waiver never occurred, then comments on whether such a waiver would be enforceable in any event.

  • Appellate Jurisdiction,  Appellate Procedure,  California Procedure,  Legal Writing

    Appeals from Bifurcated Actions — and Writing about the Issue Well

    In Kinney v. Overton, case no. G037146 (July 17, 2007), Justice Moore of the Fourth District Court of Appeal uses a “slay the dragon” metaphor to describe the limitations of review of judgments arising from bifurcated portions of a larger case (footnote and citations omitted): A residential subdivision in Laguna Beach is plagued with litigation involving a morass of legal issues and a plethora of parties — both public and private. The litigation was commenced by Three Arch Bay District against the City of Laguna Beach, Charles Kinney (Kinney) and numerous other parties.  Kinney, a homeowner in the subdivision and a lawyer, filed a cross-complaint and a number of amended…

  • Appellate Jurisdiction,  Appellate Procedure,  California Procedure,  Notice of Appeal

    Another Premature Appeal Saved — Should it Be?

    The Appellate Practitioner brings to our attention the Sixth District Court of Appeal’s decision in Sisemore v. Master Financial, Inc., case no. H029138 (June 12, 2007), in which the court “saves” a premature appeal. Sisemore appealed from an order sustaining a demurrer to her complaint without leave to amend. The court saves the premature appeal by construing the order to incorporate a judgment of dismissal. This is an accepted practice. Might this practice be challenged someday? It wouldn’t be the first time the California Supreme Court has been called upon to review the appropriateness of “saving” an appeal.

  • Appellate Jurisdiction,  Appellate Procedure,  California Court of Appeal,  Discovery,  Writ Review

    An Appealable Discovery Order

    Most parties faced with an adverse discovery ruling have to grin and bear it.  Discovery orders are not generally appealable, and a writ petition is such a longshot that unless the ruling threatens a trade secret or similarly sensitive confidential information, the writ petition hardly seems worthwhile.  In H.B. Fuller Co. v Doe, case no. H030099 (May 31, 2007), California’s Sixth District Court of Appeal reminds us of a rare occasion when a discovery order is appealable.  Doe sought to quash a subpoena directed to an internet company.  The subpoena sought information that would identify the person (Doe) who posted Fuller’s confidential company information on internet message boards.  No lawsuit…

  • Appellate Jurisdiction,  Federal Procedure,  U.S. Supreme Court

    Claiborne Case Sparks Debate

    In Claiborne v. U.S., case no. No. 06–5618 (June 4, 2007), the U.S. Supreme Court decided that the death of the petitioning criminal defendant rendered the case moot, and thus it vacated the judgment of the Eighth Circuit Court of Appeals that had reversed the district court’s downward adjustment from the federal sentencing guidelines.  The order itself tells you nothing about the case, so I suggest you start with Kimberly A. Kralowec at The Appellate Practitioner, who provides a brief rundown, from which it makes sense next to check this SCOTUSBlog post from before the ruling, describing efforts by a similarly situated petitioner to save the Claiborne case despite its…

  • Appellate Jurisdiction,  California Court of Appeal

    Appellate Jurisdiction: Order Denying Motion to Vacate

    An order denying a motion to vacate usually isn’t appealable unless the motion is a statutory motion under Code of Civil Procedure section 663.  But in Carr v. Kamins, case no. B191247 (May 31, 2007), the California Court of Appeal reminds us of an exception. The plaintiff in this adverse possession suit served the defendants by publication, after which default and default judgment were entered.  Four years later, one of the defendants later moved to vacate the default judgment on the ground that plaintiff committed fraud in procuring the order for service by publication and that the default judgment was obtained in violation of her right to due process.  The…

  • Appeals,  Appellate Jurisdiction,  Appellate Procedure

    Some Appellate Law Reminders Coming Up

    Last week saw several published decisions with good discussions of appellate procedure and jurisdiction.  The most in-depth is the Ninth Circuit case I blogged about here, but there are several California decisions to note.  I finally got a chance to catch up on some of them over the weekend, and will post about them in the next few days. (They ought to remain good law for at least that long!) They are great reminders of some lesser-known rules applicable in unusual situations.

  • Appellate Jurisdiction,  Appellate Procedure,  Federal Procedure,  Ninth Circuit

    Ninth Circuit Panel Splits on Appellate Jurisdiction over Denial of FSIA Immunity Claimed via Res Judicata

    The Ninth Circuit tackles a question of appellate jurisdiction in Gupta v. Thai Airways International, case no. 04-56389 (May 30, 2007).  The riddle — which the majority overlooks until it responds to the dissent — arises from the intersection of res judicata and the “collateral order” exception to the final judgment rule. Thai Airways contended in its motion to dismiss for lack of subject matter jurisdiction in the district court that it was immune from suit under the Foreign Sovereign Immunities Act (the airline is 76% owned by the Thai government) .  The airline contended that an identical state court action brought by Gupta was res judicata on this issue…

  • Appellate Jurisdiction,  Appellate Procedure,  Federal Procedure

    Ninth Circuit Takes Appellate Jurisdiction over Pretrial Stay Orders

    A whole lot of insurance companies sue a whole lot of doctors and clinics. The insurers allege that the defendants gave away cash and vacation packages to lure patients into undergoing unnecessary procedures, for which defendants billed the plaintiff insurers, who paid millions on the claims. Several individual defendants are also facing criminal prosecution and move to stay the civil proceedings because discovery would implicate their Fifth Amendment rights. The clinics say they can’t put on an adequate defense if the action is stayed only as to the individuals facing prosecution, so they, too, ask for a stay of the proceedings. The district court obliges the stay requests — apparently…

  • Appellate Jurisdiction,  Appellate Procedure,  California Court of Appeal,  California Procedure,  Elections,  Writ Practice,  Writ Review

    Election Contest Not Appropriate for Writ Review

    In Nguyen v. Superior Court, case no. G038475 (May 14, 2007), the California Court of Appeal, Fourth District, holds that a losing candidate’s challenge to a ballot recount that reversed the results of a board of supervisors election “should be heard by the more deliberative and thorough process of appeal, rather than the hastier route of a petition of writ of mandate,” but leaves open the possibility of writ review in other election challenges.  In part, the court denies the writ because due deliberation and the procedural safeguards of appeal are especially important in a case that may result in the removal of an elected official that has already been…

  • Appellate Jurisdiction,  Appellate Procedure,  California Procedure,  Notice of Appeal

    California Notice of Appeal May be Filed on Behalf of Trust by Non-Attorney Trustee

    The Second District of the California Court of Appeal holds that a trustee may sign and file a notice of appeal on behalf of the trust even though the trustee may not represent the trust in court.  Indyway Investment v. Cooper, case no. B192944 (April 24, 2007).  The opinion first explains the rationale for why a trust may not appear in propria persona by a non-attorney trustee, then provides a range of  decisions in which notices of appeal were filed by non-attorney representatives and found valid based on a recognized “distinction between the capacity of a person acting in propria persona to sign and file a notice of appeal and…

  • Appellate Jurisdiction,  Appellate Procedure,  Bankruptcy,  Federal Procedure,  Ninth Circuit

    When is a Bankruptcy Court Order an Appealable Final Judgment?

    The Ninth Circuit gives a good summary of the rules applicable to this question in In re Brown, case no. 05-15605 (April 26, 2007). The court held that a minute order granting a creditor’s motion for summary judgment in an adversary action was an interim order that did not constitute a final judgment and thus did not trigger the time for debtor to appeal. The case gives excellent guidance for evaluating the language of an order and the procedural posture of the case as aids in determining appealability.