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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New Book on Federal Standards of Review
West has published a new book on federal standards of appellate review: H. Edwards and L. Elliot, Edwards and Elliott’s Federal Courts – Standards of Review: Appellate Court Review of District Court Decisions and Agency Actions (West 2007). Here’s the description from the book’s page at the West website: This sophisticated but easy to understand exposition of the standards of review offers an invaluable resource for law students, law clerks, and practitioners. Decisions of the U.S. Courts of Appeals invariably are shaped by the applicable standards of review. “Fill[ing] a huge gap in the literature,” Standards of Review masterfully explains the standards controlling appellate review of district court decisions and…
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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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A Group Passionate about Changes to Publication/Citation Rules
I had occasion to do some research recently into the fight for changes in the rules for publication and the California ban on citation of unpublished California opinions (Cal. Rules of Court, rule 8.1115) and ran across The Committee for the Rule of Law. According to its mission statement, it “seeks to revive full publication of all decisions of the United States Court of Appeals and the Court of Appeal of California in official reports and to eliminate all rules of court prohibiting the citation of approximately 90% of all decisions of our appellate courts to any court for any purpose.” The name of the group and the passion with…
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Petition by One Parent in Juvenile Proceedings Does not Give other Parent Standing to Appeal Resulting Order
Rooting for the mother of your children to win her petition for modification isn’t enough to give you standing to appeal the ensuing order denying modification. Thus, in In re D.S., case no. C055069 (3d Dist. Oct. 31, 2007), the court of appeal dismisses the father’s appeal from the order denying the mother’s petition for modification. Appellant father appealed both from the order denying mother’s petition for modification and from the order terminating his and the mother’s parental rights. But he never joined in the petition, which the court denied as untimely. Since he did not join in the petition, he is not aggrieved by its denial, which had no…
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“Forfeiture” vs. “Waiver” of Issues on Appeal
The Court of Appeal in People v. Campos, case no. B191256 (2d Dist. Nov. 14, 2007) points out in a footnote the difference between “forfeiture” of one’s right to raise an issue on appeal and a “waiver” of that right: While the People use the term “waiver” in reference to defendants’ failures to preserve their instructional claims for appeal because they did not raise them in the court below, the correct term which we use in this opinion is “‘forfeiture.’” “‘Waiver’” is the express relinquishment of a known right whereas “‘forfeiture’” is the failure to object or to invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 880,…
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Not Every Procedural Error is Jurisdictional
I know that sounds self-evident. But a jurisdictional challenge is your last hope on appeal if you’re relying on procedural irregularities that you let pass without objection. That’s because a jurisdictional defect can be raised any time in the course of the proceedings, so a party on appeal does not have to worry about having waived it. But the appellant in In re Angel S., case no. C054446 (3d Dist. Oct. 23, 2007, modified and ordered published Nov. 13, 2007) isn’t able to pull it off. The appellant in Angel S. had her probate guardianship of her 2-year-old great niece terminated after the girl suffered severe head injuries in appellant’s…
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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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Beware the Statute of Frauds
As I think many lawyers are, I am constantly amazed at the relationships people are willing to enter into on little more than a handshake. As every first-year law student knows, the Statute of Frauds can prevent the enforcement of a certain contracts not in writing, and in Elias Real Estate, LLC v. Tseng, case no. B192857 (2d Dist. Oct. 25, 2007), it rears its ugly head and gives us a rare example of reversal due (in part) to insufficiency of the evidence. If your looking for a company you can trust then I highly recommend Mission real estate. The four defendant Tseng brothers own some real property as tenants…
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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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Failure to Brief and the Bounds of Discretion
Two interesting, though not new, appellate angles in Nakamura v. Parker, case no. A115626 (1st Dist. Oct. 22, 2007). It’s an appeal from the summary denial of a temporary restraining order sought under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.), which had the effect of dismissing the appellant’s entire action. First Issue: Respondent did not file a brief in the appeal. Automatic reversal, right? Wrong. While many people — at least among those who don’t practice in appeals — assume that failure to file a respondent’s brief will mean an automatic win for the appellant, that’s not the case. Appeals are all about reviewing for error.…
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Consumer Attorneys Sue Supreme Court over Case Publication Rules
Newport Beach personal injury firm Bisnar | Chase announced on its California Injury Blog that it has filed suit against the California Supreme Court and a district of the Court of Appeal. While not 100% clear from the post, it appears that the firm is representing a personal injury client who alleges his due process and equal protection rights were violated by the Court of Appeal’s failure to publish its decision reversing a judgment after jury verdict in his favor against Southern California Edison. Specifically, it appears the Court of Appeal — presuming I tracked down the right decision on Westlaw — reversed the award because it found as a…
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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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Life Estates and Proposition 13
Since Proposition 13 (passed by initiative in 1978) changed the property tax system in California from one based on current assessed value to one based on assessed value at the time of acquisition, the issue of whether a change in title is a change in ownership for purposes of Proposition 13 haunts every transaction, as it can mean a huge increase in property taxes. In Steinhart v. County of Los Angeles, case no. B190957 (2d Dist. Sept. 28, 2007), the Court of Appeal faced the issue of “whether Steinhart’s acquisition of a life estate in real property upon the death of her sister constituted a change of ownership so as…
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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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Skilling’s 58,922-Word Brief Accepted by Fifth Circuit
The WSJ.com Law Blog reports that the Fifth Circuit has granted former CEO executive Jeff Skilling’s request to file an overlength brief. WSJ.com has posted the Fifth Circuit’s order, which allows Skilling to file his brief of 58,922 words — 44, 922 words over the normal limit, or more than 4 times the maximum length provided by the rules — and grants permission for the government to do the same. My round-up of coverage on Skilling’s request several weeks ago, including links to substantive analyses of his arguments, appears here.
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Vindictive Prosecution Dismissal Gets De Novo Review
If you had been stopped twice at the U.S. – Mexican border trying to smuggle in illegal immigrants, told the customs officer both times that you had been paid to drive the vehicle across the border — and in one case admitted that you knew the compensation was for alien smuggling — and you weren’t prosecuted in either instance, you might figure that when you are prosecuted — this time, for trying to bring marijuana across the border — you’re better off explaining that you thought you were smuggling aliens instead of marijuana. That’s exactly how Sharon Ann Jenkins testified in her own defense at trial. While the jury was…
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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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FRAP 4(a)(7)’s 150-day Period Sets Time of Entry of Judgment, not Time to Appeal
Sometimes, the rules seem rather tangled. But go through them slowly, and they usually all “come together.” Such is the case in Menken v. Emm, case no. 05-164637 (9th Cir. Sept. 19, 2007), in which the appellees argued that the notice of appeal was not timely. The district court granted a motion to dismiss for lack of personal jurisdiction but never entered a separate order. The issue thus became when the 30-day deadline for filing the notice of appeal was triggered. The analysis is rather straightforward. The date of entry of a judgment triggers a 30-day deadline to appeal from it. (Fed. R. App. P. (“FRAP”) 4(a)(1).) For this purpose,…
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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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Failure to Address Contrary Authority Again Draws Fire
Last week, we saw a government lawyer scolded by the Ninth Circuit for making an argument directly contrary to controlling authority without even trying to argue around that authority and without even citing it. This week, it’s the California Court of Appeal’s turn, in a slightly different context. Yesterday, Tom Caso at The Opening Brief posted about Batt v. City and County of San Francisco, case no. A114633 (1st Dist. Sept. 12, 2007), in which he says the court “suggested it was unethical for an attorney to fail to address in your brief cases that, even if not directly on point, ‘clearly are pertinent to any meaningful discussion of the…
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Availability of Electronically Filed Briefs in U. S. Supreme Court
SCOTUSBlog has information regarding the upcoming online availability of briefs filed electronically with the U.S. Supreme Court.
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Peremptory Challenges to Appellate Justices and Posting of Draft Appellate Opinions
Don’t get too excited! The title of this post does not reflect changes to the Code of Civil Procedure. Instead, the title summarizes two of Nine Ideas for Improving the Administration of Justice offered by Los Angeles attorney Edwin B. Stegman in his guest column in the September 2007 California Bar Journal. Specifically, Stegman suggests the following: 3. We desperately need a CCP §170.6-type peremptory challenge of incompetent and unreasonable appellate justices and divisions. *** 7. Before oral argument, attorneys should be permitted to review research attorneys’ notes and appellate draft opinions. There is no advantage to secrecy. In some courts, research attorneys make the decisions. Sometimes they make mistakes.…
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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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Roundup: Skilling’s Brief
Former Enron executive Jeffrey Skilling’s brief in the appeal of his criminal conviction states in support of his request for oral argument that his prosecution was “perhaps the most prominent and publicized white-collar case ever prosecuted.” One might guess he felt that way from the length of his opening brief: 237 pages and roughly 60,000 words. The blog posts I’ve seen on this credit WSJ.com’s Law Blog post as the first. It includes a link to the brief and credit’s Skilling’s lawyers for “some nice rhetorical touches,” two of which it quotes. While that post offers some bullet-point analysis of the arguments made in the brief, those truly interested (but…
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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…