In Bookout v. Nielsen, case no. G037727 (4th Dist. August 31, 2007), the Court of Appeal was faced for the first time with the question of the proper standard of review on appeal from an Elder Abuse Act protective order. (Welf. & Inst. Code, § 15657.03.) Citing to the statutory language that allows an Elder Abuse Act protective order to issue upon proof “to the satisfaction of the court,” and noting that the Domestic Violence Protection Act contains identical language for the standard for issuing the order, the Court of Appeal adopts the standard of review applicable to appeals of DVPA protective orders: abuse of discretion. Of course, the factual…
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- 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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Ninth Circuit: Anticipated Attorney Fees on Appeal Can be Considered in Calculation of Appeal Cost Bond — Sometimes
In Azizian v. Wilkinson, case no. 05-15847 (August 23, 2007), the Ninth Circuit faced, for the first time, an issue on which other circuits have split: “whether, or under what circumstances, appellate attorney’s fees are ‘costs on appeal’ that a district court may require an appellant to secure in a bond ordered under Federal Rule of Appellate Procedure 7.” It provides its conclusion at the outset of the opinion: We conclude that a district court may require an appellant to secure appellate attorney’s fees in a Rule 7 bond, but only if an applicable fee-shifting statute includes them in its definition of recoverable costs, and only if the appellee is…
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Review for Abuse of Discretion Impossible when Record Fails to Disclose Reasons for Decision
Gomez v. Gonzales, case no. 06-70941 (9th Cir. August 22, 2007) demonstrates how the abuse of discretion standard of review can be undermined by a weak record. The weak record in this case results in remand instead of a decision on the merits. The Board of Immigration Appeals denied a motion by the Garcias for leave to file a late brief. The grant or denial of such a motion is within the BIA’s discretion. Here, however, the BIA’s order offered no “reasoned explanation” for its denial of the motion: Denying the Garcias’ motion, the BIA conclusorily reasoned: “We find the reason stated by the respondents insufficient for us to accept…
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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…
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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 Procedure, California Procedure, California Supreme Court, Federal Courts, Federal Procedure, Ninth Circuit, Standard of Review
Adult Bookstore Case Results in Certified Question to State Supreme Court
Under rule 8.548(a), California Rules of Court, a Federal Court of Appeals, the U.S. Supreme Court, or the court of last resort of another state may ask the California Supreme Court to answer a question of California law where “(1) The decision could determine the outcome of a matter pending in the requesting court; and (2) There is no controlling precedent.” Most lawyers are already familiar with this procedure, at least in principle. What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026 (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to…
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Court of Appeal Adopts Abuse of Discreton Standard for Review of Family Code Section 2107 Sanctions Award
In Marriage of Feldman, case no. D047896 (4th Dist. July 20, 2007, certified for publication August 7, 2007), the Court of Appeal upholds a whopping $250,000 in sanctions and $140,000 in attorney fees against a husband who failed to disclose material assets in the course of divorce proceedings. The sanctions were awarded pursuant to Family Code section 2107, subdivision (c) and Family Code section 271, subdivision (a). Section 271 sanction orders are reviewed for abuse of discretion, but the court had no precedent for the standard of review to apply to awards under Section 2107, subdivision (c). The court determines that abuse of discretion applies here as well, since “the…
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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…
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More on U.S. v. Larson
A few days ago, I blogged about the odd reasoning behind the en banc Ninth Circuit’s purported resolution in United States v. Larson of a 3-way intra-circuit split over the applicable standard of review in Confrontation Clause cases. Here’s some other blog coverage. While my post concentrated on the intra-circuit split, Split Circuits gives you coverage of the split among the federal circuits on the same issue. California Appellate Report comments on the odd 4-4-7 split vote of the en banc panel that results in one of the 4-judge opinions being the opinion of the court. Larson is Ninth Circuit Blog’s Case o’ the Week, where the federal defenders’ blog…
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En Banc Ninth Circuit Resolves Intra-Circuit Split on Standard of Review in Confrontation Clause Challenges
In United States v. Larson, case no. 05-30076 (August 1, 2007), an en banc Ninth Circuit court resolves a 3-way intra-circuit split on the standard of review to apply in Confrontation Clause challenges. Citing one line of Ninth Circuit cases applying de novo review, another reviewing for abuse of discretion, and a third applying a “combination” of these two standards, the courts states that it is adopting the last of these, but its analysis seems less than clear to this reader . . .
- 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…
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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.
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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…
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Stare Decisis and the “Wrongly Decided” Controlling Case
Yesterday, I posted about a mild barb at the trial court delivered by the Court of Appeal in Cuccia v. Superior Court, case no. B197278 (July 16, 2007). This post concerns the summary the Court of Appeal gave for how a California trial court should handle controlling precedent that it feels was wrongly decided. A trial court has no choice in such a situation but to follow the case. But “the trial court should make a record articulating why it believes the binding opinion is erroneous and should be revisited by the appellate court which is free to either disagree with or overrule the opinion.” The court stresses that this…
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Making the Record with Anger Draws Discipline
The Legal Profession Blog brings us an example of disrespect for the court that is crystal clear, unlike the “french fry” comment that caught so many people’s attention at the end of May and again last month. At the hearing on a continuance motion, a criminal defense lawyer, who had signed his papers “Indignantly submitted,” insisted that he would “jam these pleadings down the throat of the record as much as I feel I need to.” Not the recommended approach, to say the least. Check out the post at Legal Profession Blog for the consequences of this conduct.
- Appellate Procedure, Attorney Fees, California Court of Appeal, California Procedure, Post-Trial Practice, Standard of Review
Of Walnut Trees and Attorney Fees
Two interesting and “bloggable” issues are raised and decided by the Third District Court of Appeal in Brittalia Ventures v. Stuke Nursery Co., Inc., case no. C0478374 (July 10, 2007). One regards the proper standard of review when the terms of a contract are disputed. The second, and more interesting, concerns post-trial motions for attorney fees. Brittalia purchased walnut trees from Stuke and later sued for breach of warranty and other causes of action based on allegations that many of the trees were either the wrong variety or diseased. There was no single, clearly identified written contract governing the sale. The parties had a course of dealing during which they…
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Amicus-Palooza
This article at Law.com discusses the unusually heavy participation of amici curiae in the pending Supreme Court case of North Coast Women’s Care Medical Group v. Superior Court (Benitez), case no. S142892. Forty organizations have filed amicus briefs, either individually or jointly. As one might expect, the issue is hot-button: were doctors within their rights to deny, on the basis of their religious beliefs, artificial insemination to a lesbian? Anyway, this got me to thinking . . . what is the record for the number of amicus briefs (or the number of amicus curiae, regardless of the number of actual briefs) in a California Supreme Court case? This case has…
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California Supremes on the Right to Rehearing on Unbriefed Issues
When is a party entitled to a rehearing from the Court of Appeal? One such case — where the decision is based on an issue the parties did not have an opportunity to brief — is codified at Government Code section 68081: Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. …
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Raiders Lose on Independent Review of Order Granting New Trial
Congratulations! The court has granted your motion for a new trial! Now, just pray the trial judge doesn’t screw it up. Yesterday’s Supreme Court opinion in The Oakland Raiders v. National Football League, case no. S132814 (July 2, 2007) demonstrates again that no winner of a new trial can have confidence in the order granting the new trial unless the court specifies its reasons in the order or files its specification of reasons within 10 days of the order, as required by Code of Civil Procedure section 657. In this case, the court’s failure to specify its reasons results in a different standard of review on appeal that effectively shifts…
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Waiving Issues in Arbitration
Keep a close watch on those arbitration arguments, especially as they relate to the scope of the arbitrator’s power as defined by the arbitration agreement. That’s the lesson of J.C. Gury Co. v. Nippon Carbide Industries (USA) Inc., case no. B194926 (June 29, 2007), in which the Second District Court of Appeal holds that Nippon waived the contractual limitation on the power of the arbitrator by its conduct during the arbitration, and thus may not petition to vacate the award on the ground the arbitrator exceeded his powers. The agreement stated that the arbitrator “shall not have the power to change, alter or modify” any term of the parties’ agreement. …
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Ninth Circuit Rules Amendments Available
Amendments to the Ninth Circuit rules went into effect on July 1, 2007. They are available for download as a PDF from the Ninth Circuit Court of Appeals website. It’s a handy file, with a chart of the changes and revised or added language clearly highlighted.
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Unitherm Precludes Plain Error Review, Too
Watch rule 50 of the Federal Rules of Civil Procedure! In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. (2006) 546 U.S. 394, the Supreme Court held that a party who fails to renew a Rule 50(a) pre-verdict motion for judgment as a matter of law by moving under Rule 50(b) post-verdict waives any review of the sufficiency of the evidence. Prior to Unitherm, an appellant in the Ninth Circuit likewise waived sufficiency of the evidence review in such circumstances, but the Court of Appeals could review for plain error on the face of the record that would result in a “manifest miscarriage of justice” if not corrected See Patel v.…
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The Doctrine of Implied Findings is Serious Business
Under the doctrine of implied findings, the Court of Appeal will presume that the trial court made all findings necessary to support the judgment. The only way for the appellant to avoid that presumption is to request a statement of decision pursuant to Code of Civil Procedure section 632, and then to object, pursuant to Code of Civil Procedure section 634 (either by objection prior to entry of judgment or by statutory motion for new trial or motion to vacate the judgment), to any statement that omits necessary findings or contains ambiguous findings. There is a lot that can be written about this process, but this post is limited to…
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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.
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Citations to Large, Multi-Volume Appellate Records
New Orleans appellate attorney Raymond Ward has a very logical post at the (new) legal writer explaining why an attorney should, even if not required by the rules, include volume numbers in citations to multi-volume appellate records. I know I would prefer to receive a brief that did this than one that does not.