As my first substantive post on this blog pointed out, determining whether a bankruptcy order is appealable can be tricky. 28 U.S.C. § 158(d) gives the Courts of Appeals jurisdiction over appeals from “final decisions, judgments, orders, and decrees entered” either by the district courts or the Bankruptcy Appellate Panel. In In re AFI Holding, Inc., case no. 06-56621 (9th Cir. June 17, 2008), the Ninth faces for the first time the issue of whether an order removing a trustee in an ongoing bankruptcy case is appealable, and, joining several other circuits, concludes that it is because it conclusively resolves a “discrete issue”: Although the bankruptcy proceedings may continue, and here, in fact they…
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- Appellate Procedure, Criminal Procedure, Standing to Appeal, Statutory Construction, Waiver of Issues
Court has No Duty During Recommitment Proceedings to Consider Suitability for Outpatient Treatment
In People v. Rish, case no. B198727 (2d Dist. June 16, 2008), Rish appealed from from an order recommitting him to the California Department of Mental Health for treatment as a mentally disordered offender pursuant to Penal Code section 2972. He claimed that the trial court erred by failing to consider whether he was suitable for outpatient treatment, even though he did not raise this alternative in the trial court. The Court of Appeal determines that Rish waived the issue by failing to raise it. As a matter of statutory construction, Section 2972, subdivision (d) does not impose a duty on the court to evaluate suitability for outpatient treatment sua sponte. The court reached the…
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What Happens When a Criminal Defendant Dies While His Case is Pending Before the Supreme Court?
Image via Wikipedia In People v. Arriaga, case no. S149898 (June 2, 2008), the Supreme Court explains the general scheme in a footnote: After oral argument in this case, we were informed that defendant Arriaga died on March 14, 2008. Although defendant’s death will abate his appeal (see e.g., In re Sheena K. (2007) 40 Cal.4th 875, 879; People v. Anzalone (1999) 19 Cal.4th 1074, 1076; People v. Dail (1943) 22 Cal.2d 642, 659), we exercise our inherent authority to retain this case for an opinion in order to resolve the recurring conflict in the Courts of Appeal regarding whether prohibited firearm enhancements should be stayed or stricken under…
- Appellate Jurisdiction, Appellate Procedure, Criminal Procedure, Federal Procedure, Plea Bargains, Sentencing, Waiver of Issues
Waiver of Appeal Rights in Plea Agreements
Plea agreements often waive the right to appeal, but they aren’t always what they seem, especially when it comes to how they define the scope of the waiver. For a lesson in how to determine whether a defendant has waived the right to bring a particular appeal, check out United States v. Cope, case no. 06-50441 (9th Cir. June 4, 2008). Cope pled guilty to a single count of possession of child pornography and was sentenced to 120 months imprisonment and lifetime supervised release. His plea agreement stated that he waived appeal of his sentence so long as it met three criteria. On appeal, he challenged the length of his…
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Tips from Appellate Court Research Attorneys
Donna Bader at Appeal to Reason shares some briefing pointers offered by a couple of attorneys from her local appellate court. I was glad to see a practice of mine validated: “Wondering whether to include citations to the record in the argument, rather than just the Statement of Facts? Yes, please do.” There’s plenty more.
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California Supreme Court Rejects De Novo Review of Recusal Determinations
In two cases with a local angle – both originating in neighboring Santa Barbara County and thus reaching the Supreme Court through our local Court of Appeal (Second District, Division Six) – the Supreme Court reaffirms that recusal motion determinations are reviewed only for abuse of discretion. It rejects the justifications offered by the Court of appeal for heightened review in cases of “first impression,” capital cases, or the reviewing court’s “independent interest” in “policing conflicts of interest and addressing potential errors at the earliest opportunity” In Haraguchi v. Superior Court (People), case no. S148207 (May 12, 2008), the Santa Barbara County deputy district attorney assigned to prosecute the accused…
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Red Light for Jurisdiction
Most lawyers are familiar with the general rule that a trial court loses jurisdiction to act in a case upon the filing of a notice of appeal. There are actually a surprising number of exceptions to that rule . . . but the amended judgment in People v. Bhakta, case no. B190437 (2d Dist. May 6, 2008) is not one of them. This was a public nuisance case brought by the People against the owners of a downtown motel under the “Red Light Abatement Law” to abate prostitution activity at the motel. The court entered a permanent injunction, and by stipulation the People were given an extended time to apply…
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Ninth Circuit Amends Garcia on Appellate Jurisdiction
According to Ninth Circuit Blog, the Ninth Circuit “came to its jurisdictional senses” with its amended opinion in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007, amended Apr. 17, 2008). While I might have said that a little more gently, I agree with the sentiment. I covered the relevant holding regarding appellate jurisdiction in my original coverage: 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 made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines…
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An Easy Cure for Citation Anxiety
Legal Writing Prof Blog links to a paper called Reducing Citation Anxiety, which is presumably intended to put one’s mind at ease regarding citation format in their legal writing. I won’t have time to look at it, but I already have a way of overcoming that anxiety: I keep a copy of The California Style Manual close by as I draft.
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New Evidence on Appeal?
Odd as it sounds, it is possible in exceptionally rare circumstances. And I do mean exceptionally rare, which is why you almost never see it addressed in the cases. In yesterday’s In re Valerie W., case no. D051056 (4th Dist., Apr. 4, 2008, ordered published Apr. 21, 2008), in which appellants sought reversal of judgments terminating their parental rights, the minors’ counsel asked the court of appeal to take post-judgment evidence, in the form of her declaration, pursuant to Code of Civil Procedure section 909. Section 909 is a little dense in form (it would benefit from being set forth in subdivisions), but worth reading in full (emphasis added): In…
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The Limits of Wende
Anyone who does criminal appellate work by appointment for indigent defendants is familiar with People v. Wende (1979) 25 Cal.3d 436. Wende requires the court of appeal to conduct an independent review of the record for error when appointed counsel files a brief representing that he or she has reviewed the record and found no arguable issues. At least, this review is required on the defendant’s first appeal as of right. People v. Dobson, case no. F053531 (5th Dist. Apr. 16, 2008) teaches the limits of Wende. Dobson was found not guilty by reason of insanity and committed to a state mental hospital. Six years later, he was released to…
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Preserve Your Sentencing Objections
In United States v. Grissom, case no. 06-10688 (9th Cir. Apr. 15, 2008), the Ninth Circuit reviews what it calls “novel circumstances” and looks beyond the form of a sentencing objection to determine whether the government had preserved the issue for appeal. Whether you view the analysis as a more lenient test or simply the application of the old test in new circumstances, it seems likely to lead to more sentencing appeals. Grissom pled guilty to one drug distribution count involving 49 grams of cocaine base in exchange for dismissal of the remaining two counts, which involved a total of 56 grams of cocaine base. The government contended that the trial court erred…
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Standards of Review, Please!
The appellate practice equivalent of the old real estate maxim “location, location, location” is probably “standard of review, standard of review, standard of review.” Most appellate opinions state very clearly the standard of review that they are applying to a given issue on appeal. In Warner Bros. Int’l v. Golden Channel, case no. 05-55374 (Apr. 15, 2008), the Ninth Circuit panel takes a shortcut. The appeal is from the judgment after a bench trial and the only reference the opinion makes to any standard of review is this: “In light of the findings of fact and words of the contract the parties signed, the conclusions of law (which are not…
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En Bancs on the Upswing under Chief Judge Kozinski
Image from Wikipedia In yesterday’s Daily Journal, Staff Reporter John Roemer has a front-page article about an apparent surge in en banc rehearings granted by the Ninth Circuit since Alex Kozinski became Chief Judge. (Full disclosure: yours truly is quoted in the article.) Are the two phenomena related? Not according to Judge Kozinski, whom the article quotes: “I’ve always been more en banc friendly than many of my colleagues,” he wrote in the e-mail. “But I frankly doubt that my being chief judge will have any effect on the process. I’ve had my share of successes as well as failures when calling for en banc review. “There are not –…
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Appealing from an Order of Dismissal
An order dismissing a complaint is not a “final decision,” so such an order is generally not appealable under 28 USC § 1291. A dismissal order may be appealable, however, when it appears that the district court intended the order to dispose of the action. What to make of the district court’s intent when its order dismissing a complaint does not specify whether or not leave to amend is granted? In Mendiondo v. Centinela Hospital, case no. 06-55981 (9th Cir. Apr. 1, 2008), the Ninth Circuit notes that failure to address amendment means that the court denied leave to amend. Accordingly, it infers that the district court intended the order…
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Appellate Surprises
Some points about appellate practice — even well-settled points — can come as surprises to those not well versed in it. Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008) consolidates several of them in a single case. I’m only going to spend a line or two on each one, without much elaboration. The point of the post is to disclose just a few traps trial attorneys can fall into, not to give detailed exposition on each point. My original post about the case concerned what some might consider a procedural oddity: a new trial motion where no trial ever occurred. A new trial motion is validly…
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Almost En Banc
There’s a very unusual course of events leading up to the innocuous order dismissing the appeal in Foulon v. Klayman & Toskes, case no. 05-35383 (9th Cir. Mar. 24, 2008). For details on this strange tale of the unrequested en banc hearing that almost was (yes, you read that right), check out California Appellate Report, where Professor Martin calls what happened “sufficiently rare that it took me quite a while to figure out even what happened.” Then see why Appellate Law & Practice refers to at least one step in the procedure as “judicial activism.”
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The Tip of the Stare Decisis Iceberg
That’s how Ben Shatz describes his article on stare decisis at the Los Angeles County Bar Association website. It is a fast read and a great introduction to a doctrine that has far more wrinkles in it than most people think. Every lawyer who gets anywhere near a courtroom should read it. One of the points Ben raises is that there is no lateral stare decisis in the California Court of Appeal. One district is free to depart from a decision from another district, or even from prior decisions from other panels in the same district. As I pointed out in a recent post, you can take on adverse Court…
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The Unexplained Concurrence
Here’s an interesting Howard Bashman’s column that explores the phenomenon of third justices who “concur in the result” without further comment on the majority opinion. NOTE: Somehow this post got marked “private,” so I’m not sure it ever showed up on the blog before. But it’s possible it was posted for a while befopre it got marked “private,” in case you’re looking for an explanation for any deja vu you’re experiencing.)
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Order or Judgment? It can make a big difference!
More wrangling over what triggers a deadline to appeal. Several weeks ago, I reported on Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008), in which the court of appeal held that serving just one of multiple attorneys representing a party with a notice of entry of an order denying a motion for new trial suffices to trigger the deadline to appeal. In this order modifying the opinion without change in the judgment and denying rehearing, the court tacks two paragraphs on to its original opinion that lead me to the question posed in the title of this post. Though the original opinion refers to an August 7,…
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An Odd Request
Not from me. From the plaintiff homeowners association in Pacific Hills Homeowners Assn. v. Prun, case no. G038244 (4th Dist. Mar. 20, 2008). The plaintiff association prevailed at trial, getting an injunction requiring the defendant to comply with covenants, conditions and restrictions and architectural guidelines by modifying a structure on their property. So far so good, but the judgment also required the homeowners association to pay two-thirds of the cost, so long as certain conditions were met. So when the defendant appealed, the association cross-appealed, arguing that the court was wrong to make it responsible for costs in moving the gate. The association then asserted — apparently in its briefs,…
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Scope of Remand Limits District Court Authority
In United States v. Davis, case no. 06-10527 (9th Cir. Mar. 19, 2008), we have a case where the district court either didn’t realize its limitations or just didn’t read the mandate right. Whatever the cause, this case provides a succinct and to-the-point reminder of the point made in the title of this post. The Ninth originally remanded with instructions to strike a conviction and sentence on count four and for the court to determine if it would have imposed the same sentence if it had known that the sentencing guidelines were advisory rather than mandatory. The district court struck the conviction and sentence on count four, declared it would…
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E-Filing Briefs in the Supreme Court
Rule 8.212, California Rules of Court was amended effective January 1, 2008 to allow parties to serve the Supreme Court electronically in lieu of physical service of four hard copies of briefs filed in the court of appeal, but the Supreme Court website did not appear to provide the promised information for doing so. That’s changed. You can now go here to start the electronic filing process for your brief. I haven’t tried it out with an actual brief yet, but it looks pretty straightforward. I’ll be able to try it out in a week or two and will report on it then. Hat Tip: Jeffrey Lewis at Nota Bene.
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Surprised by Jurisdiction
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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The Scope of Plurality En Banc Decisions
In a post from the weekend cleverly titled to include “Ninth Makes Up its Mind on Inability to Make Up its Mind,” Ninth Circuit Blog performs a great public service by providing resources to help understand the scope of “fractured” en banc cases decided by plurality opinion. Definitely worth a read, especially if you are relying on such authority and want to “nail down” its strength and limitations. Ninth Circuit Blog’s post concludes that there’s advantage to be had from ambiguity: Come to think of it, if the federal judiciary is increasingly hostile to the rights of criminal (and particularly, indigent) defendants, maybe plurality decisions are good things. After all,…
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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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What the Heck IS “Abuse of Discretion,” Anyway?
The “abuse of discretion” standard can be a tricky thing. I’ve heard lawyers ridicule it as a formula for automatic affirmance of the trial court. That is, of course, off the mark. But the breadth of discretion has to be defined for effective appellate review, and even appellate courts sometimes struggle with this standard or mistake it for something it isn’t. (I wrote about the difficulty the Ninth Circuit had in one case last year here, witha related post here and an announcement of my article on the topic here.) I got to thinking about the complexity of the abuse of discretion standard again when I read a post last…
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To Adopt, or Not to Adopt
Professor Martin poses a tongue-in-cheek question regarding the Ninth Circuit’s work ethic.
- Appellate Procedure, Attorney Fees, California Procedure, Post-Trial Practice, Standard of Review, Statutory Construction
Review of “Private Attorney General” Fee Awards
Kimberly Kralowec at The Appellate Practitioner points out a case from earlier this month, Roybal v. Governing Board of the Salinas City Elementary School District, case no. H030596 (Jan. 11, 2008, ordered published Feb. 6, 2008), in which the Court of Appeal neatly summarizes the proper standards of review to apply when reviewing attorney fee awards made pursuant to California’s “private attorney general” statute, Code of Civil Procedure section 1021.5. The case recognizes the Supreme Court’s 2006 departure from the one-size-fits-all “abuse of discretion” standard in recognition that some awards may be due more deferential review in light of their fact-intensive nature, while those revolving around legal issues like statutory…