It’s always frustrating when you have to litigate over issues stemming from a court’s failure to do something that it should have done or even was required to do. Just ask the Oakland Raiders, who saw their new trial order reversed because the trial judge’s order did not satisfy the Code of Civil Procedure. The issue also arises in California courts where the trial court fails to rule on objections to evidence in the context of a summary judgment motion. The consequences of such failure have been discussed on a number of blogs recently, and The Appellate Practitioner has an excellent post regarding the Supreme Court’s recent grant of review…
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Preserving Evidentiary Objections for Appeal from a Summary Judgment
Last Friday, the California Supreme Court granted review in Reid v. Google, Inc., case no. S158965. The Supreme Court states the following as one of the issues for review: “Are evidentiary objections not expressly ruled on at the time of decision on a summary judgment motion preserved for appeal?” Until now, the answer has generally been “no.” That’s a rule that has always rankled me because securing a ruling can be out of the objecting party’s hands. No matter how much prodding one does, the court may fail to rule. Tom Caso at the Opening Brief pointed out this likelihood last October, when he covered a series of decisions creating a conflict…
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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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Does It Make a Difference to Have Your Client Present at Oral Argument?
Every glimpse into the collective minds of appellate justices usually helps, especially with regard to oral argument, but Donna Bader provides an interesting insight at Appeal to Reason that I’m not sure what to do with. Her observation: Once I questioned some justices about whether they look around the courtroom during oral argument to figure out who the parties [are]. If the attorney sits next to the clients, the answer is obvious. Sometimes, clients sit in the back, leaving the attorney alone to prepare for oral argument. Surprisingly, the justices admitted they had a certain curiosity as to who the participants were. More than that, there was also a curiosity…
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Toning Down the Snark
California Appellate Report notes an order from the Fourth District Court of Appeal yesterday in which it modified its original opinion by eliminating a snide comment about lawyering skills. As Professor Martin points out, this is an unusual amendment. Even more interesting to me: the order does not set out the entirety of the language to be deleted. Instead, it references the sentence to be deleted only by the beginning words in that sentence: “Lawyers should learn . . . .” Which gives you a hint that the excised language is a little snarky, and may even prompt the average reader to look up the original opinion. Which you won’t…
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Court of Appeal Takes On Dispositive Motions in Limine
I’ve told you about one or two of my lingusitic peeves before. In Amtower v. Photon Dynamics, Inc., case no. H030386 (6th Dist. Jan. 17, 2008), the Court of Appeal takes on one of my peeves about procedure, and I’m glad to see it. Just prior to trial, the defendant moved in limine to exclude all evidence on one of plaintiff’s claims (the “section 11 claim”) on the ground that the claim was barred by the statute of limitations. The trial court granted the motion. After a jury trial and judgment for defendant on the remaining claims, plaintiff argued on appeal that “the trial court’s use of an in limine…
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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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The Liberty of the Court of Appeal
Several months ago, I posted about a local court of appeal decision, Cuccia v. Superior Court, case no. B197278 (July 16, 2007), that chided the trial judge for not following the rules of stare decisis: The doctrine of stare decisis requires a trial court to follow an unambiguous published holding of the Court of Appeal, even if the trial court believes that the appellate opinion was erroneously decided. This, we had assumed, was fairly obvious to every trial court judge; that is, until now. The court went on to state that a trial court that disagrees with the precedent “should make a record articulating why it believes the binding opinion…
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SCOTUS on Stare Decisis
The Blog of Legal Times has a good summary of the discussion of stare decisis in Tuesday’s U. S. Supreme Court opinions in John R. Sand & Gravel Co. v. United States, case no. 06-1164 (Jan. 8, 2008), including what it sees as an unusual alignment of the justices. The catalyst for the discussion was whether a series of SCOTUS precedents dating back to the 1880s was effectively overruled by a 1990 SCOTUS decision. The competing opinions in John R. Sand & Gravel disagree on the impact of the 1990 decision, with the majority concluding that it did not overrule the earlier cases. I remember my legal writing professor emphasizing…
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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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Compare and Contrast: Virginia and California
Waaaaaayy outside our usual jurisdiction, but California appellate lawyers may be interested in reading this post by “S. COTUS” at Appellate Law & Practice, which in turn links to this post at the SW Virginia Law Blog about the en banc Virginia Court of Appeals opinion in Moore v. Commonwealth. If I read these posts correctly, and they accurately portray the case, the posts demonstrate a wildly different approach to appellate jurisdiction in Virginia than in California, for which we should probably all (well, at least those of us representing appellants, and all appellants in pro per) breathe a sigh of relief. The court dismisses the appeal because the “petition…
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Easing Back into Things with Some Reminders from the Judicial Council
OK, I’m going to ease back into posting here with some easy ones. The California Courts website now has up-to-date versions (i.e., the versions effective as of January 1, 2008) of the following posted: Judicial Council Forms. This is a nice list, as it is only of the forms that have changes or been added, and the page includes a link to download all of the changed and new forms in a single zip file with one click. This list includes two forms for appeals, APP-003 — Appellant’s Notice Designating Record on Appeal (Unlimited Civil Case) and APP-008 — Certificate of Interested Entities or Persons. The latter is a brand…
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Review Granted Regarding “Suggestive” Palma Notice
A hat tip to Ben Shatz for promptly alerting me last week that the Supreme Court granted review in Brown, Winfield & Canzioneri, Inc. v, Superior Court (Great American Insurance Co.), case no. S156598. I haven’t posted until now because I’ve been mulling over the implications of the case — and I’ve been otherwise swamped. Review was granted on an interesting issue regarding writ practice — an area that is mysterious enough for many litigators even without the extra twist thrown in by the Court of Appeal in this case. This is a tough one to follow, as the Court of Appeal did not issue a decision. So, there’s nothing…
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California’s 90-Day Rule
The California Constitution (Article VI, sec. 19) prohibits a judge from drawing pay “while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.” A one-page “barrister’s tips” column by Ben Shatz at page 11 of this month’s Los Angeles Lawyer (in PDF format here) gives some nifty background on how this rule is enforced and how it can affect proceedings, including decisions to vacate submission and the scheduling of oral argument.
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Chutzpah on Appeal
“Chutzpah” is about the most polite word I could come up with for the appellant’s audacity in United States v. Moreland, case no. 05-30541 (9th Cir., Dec. 13, 2007). Moreland apparently swindled people out of $73 million, so I’m going to assume he had a little bit of money, legitimately earned, set aside for his defense. Yet he fought tooth and nail to proceed pro se, which is where all his problems started. The decision is covered very well, and in some detail, in this post at Decision of the Day, which begins: In my line of work, I see all kinds of appellate arguments: brilliantly creative, colossally stupid, and…
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Supremes Deny Republication of Lockheed Litigation Cases
You might remember my post from early November about the dismissal of Supreme Court review of the Lockheed Litigation Cases. Review was dismissed because a majority of the justices recused themselves due to conflicts of interest created by their ownership of stock in one or more of the oil company defendants. The oil companies, who prevailed in the Court of Appeal, sought to have the Court of Appeal opinion republished. Wednesday, the three non-recused Supremes and one designated Court of Appeal Justice voted 4-0 to deny republication. Those justices that had recused themselves from review likewise recused themselves from the republication decision. I remain baffled by Chief Justice George’s rationale…
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Process Serving Gamesmanship
It sometimes surprises me that in this information age, we are still required to make personal service of sumons. But, absent special circumstances, we are. Even when the defendant is overseas. Which was the situation in SEC v. Shaw, case no. 06-15204 (9th Cir. Dec. 11, 2007). The SEC had summons personally served on Shaw in England. Shaw defaulted, then waited more than three years to move to set aside the default judgment on the ground of lack of personal jurisdiction. The Ninth holds that a defendant with actual notice of the proceedings, as Shaw had, bears the burden of proving he was not served with summons. Shaw can’t make…
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Rare Frivolous Appeal Sanction Levied
A few months ago, I told you how a study by Ben Shatz and Joanne Sweeny in Whittier Law Review disclosed just how rarely sanctions are levied in the Court of Appeal. But “rarely” doesn’t mean “never,” and last Thursday was one of those rare occasions. Legal Pad covers the merits. California Appellate Report tries to get inside the heads of the sanctioned lawyers. The embarrassment must sting as much as the fine.
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The Record is Everything
Tom Caso has this post at The Opening Brief regarding a Ninth Circuit case last week in which Judge Kleinfeld laments his inability to follow his intuition and hold in favor of the government in an environmental case because of the government’s inability to actually support its case from the record. Its hard to tell from Judge Kleinfeld’s comments whether the government was hamstrung by its failure to preserve an adequate record or it merely failed to direct the court to those portions of the record that supported its position. Either way, it’s an embarrassment to have this type of deficiency pointed out by the court, and Tom uses the…
- Appellate Procedure, Constitutional Law, Criminal Procedure, Double Jeopardy, Standard of Review, Waiver of Issues
Double Jeopardy Argument Not Waived by Failure to Object to Multiplicitous Convictions and Sentences
In U.S. v. Zalapa, case no. 06-50487 (9th Cir. Dec. 5, 2007), the Ninth Circuit holds that a defendant can raise a double jeopardy challenge to his multiplicitous convictions and sentences on appeal even if he fails to object to them in the district court. Zapala was charged with two counts — possession of an unregistered machine gun and possession of an unregistered firearm with a barrel less than 16 inches long — under the same statute, 26 U.S.C. § 5861(d). Catch is, those counts were based on possession of the same gun. Zapala did not object to the indictment, pleaded guilty to all charges without a plea agreement, and…
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Things You Don’t Want to Read about Your Work
I’ve been working almost non-stop for the last 18 hours, and its 3 a.m. (so pardon any typo’s), so I’m not about to plow through the 82-pages of opinions in Schmidlin v. City of Palo Alto, case no. H026841 (6th Dist. Dec. 4, 2007). But I’m not too sleepy to browse through it, and I happened upon the “bloggable” portion. Or at least one of them. Its a case brought by a plaintiff who alleges various constitutional violations against city cops. The jury finds that the cops used excessive force, but did not unlawfully arrest the plaintiff or fabricate police reports. Both sides appealed. Issue 1: Sufficent evidence of excessive…
- Appellate Procedure, Articles by Greg May, Confrontation Clause, Constitutional Law, Criminal Procedure, Federal Procedure, Standard of Review
“Confronting Confrontation”
That’s the title given by the Los Angeles Daily Journal to my article, which it published in its November 19, 2007 issue, regarding U.S. v. Larson, the en banc Ninth Circuit’s confusing “resolution” of the perceived split of authority on the standard of review in Confrontation Clause challenges based on limitations on cross-examination. The article (PDF link) grew out of this blog post giving my initial impressions about the case on the day it was published. I followed up that post with another providing links to some other blog coverage of the case.
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Sufficient Merit to Proceed
When does an appeal or petition have “sufficient merit to proceed” so that a vexatious litigant subject to a pre-filing review order can move forward with it without counsel and without a certification of good faith from the district court? The Ninth realizes in In re Keith Thomas, case no. 01-80091 (9th Cir. Nov. 29, 2007) that it has never quite made it clear: Because our decisions pursuant to a pre-filing review order are rarely published, we have not yet clarified the standard for determining whether an appeal or petition has sufficient merit to proceed. We take the opportunity to do so now. The court examines standards in cases of…
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Follow the Rules – A Lesson from the Ninth
Today’s decision in Sekiya v. Gates, case no. 06-15887 (9th Cir. November 29, 2007) is a reminder that the dismissal sanction is lurking out there for any parties to an appeal that fail to follow the rules. The Ninth finds the appellant’s opening brief so deficient that it is “compelled to strike it in its entirety and dismiss the appeal.” The brief wasn’t merely “deficient.” It sounds like it did not resemble a brief at all. The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to…
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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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Failure to Exhaust Administrative Remedies is a Waivable Defense
At first glance, it might appear that the Court of Appeal in Mokler v. County of Orange, case no. G036029 (4th Dist. Nov. 26, 2007) did the unthinkable: hold that a defendant had waived a jurisdictional defect. Not so fast. The fact of the matter is that not all jurisdictional defects are created equally. Mokler provides a fairly good discussion of the difference between acts in the absence of fundamental jurisdiction — that is, acting in the absence of power to preside over the case — and acts in excess of jurisdiction, in which a court that has fundamental jurisdiction violates a restriction on the manner in which it can…
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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…