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…
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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…
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Judicial Council Soliciting Comments on Proposal for Electronic Submission of Appellate Briefs to Supreme Court
Parties to an appeal are currently required to serve the Supreme Court with four copies of the briefs they file in the Court of Appeal. A proposed change to rule 8.212, California Rules of Court, would allow the parties to submit a single electronic copy to the Supreme Court instead. Good idea, and the technical requirements in the proposed rule seem to make sense. The California Judicial Council is seeking comments on the proposed rule change. Go here for a link to the proposed changes, a link for the on-line submission of comments, and information for submitting comments by mail. The deadline for submissions is July 13, 2007.
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Judicial Council Soliciting Comments on Proposed Changes to Rules for Appeals to Appellate Division of the Superior Court
The California Judicial Council is seeking comments on proposed changes to the rules governing appeals to the appellate division of the Superior Court, which hears appeals from limited civil cases and misdemeanors. I haven’t had a chance to look at the proposals yet, but here’s the description from the Judicial Council’s website: This proposal would completely revise all of the rules relating to the superior court appellate divisions to place the rules in a more logical order, reflect current practices, fill in gaps in the rules, eliminate outdated language, and update the remaining language so it is similar to the recently revised rules for the Courts of Appeal. A complete…
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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…
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Liberalized Standards for Publication of Appellate Opinions
Professor Martin jokingly pleaded with the Ninth Circuit and California Court of Appeal to “slow down last” week. The California Court of Appeal issued 32 decisions in a 3-day span starting on May 29. I know Professor Martin was reacting to a rather short-term spike, but could it be that the liberalized rule for publication, which only recently went into effect, is starting to show results? Since April 1, 2007, publication of appellate opinions has been subject to more liberal standards of publication under rule 8.1105(c). The changes are summarized by the advisory committee at p. 57 of its report. They: (a) Replace the presumption against publication with a presumption…
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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.
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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…
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The Proper Action When an Appeal is Mooted
Offering a concise lesson on when a moot federal appeal should be dismissed and when it shouldn’t is the Ninth Circuit’s decision in NASD Dispute Resolution, Inc. v. Judicial Council of the State of California, case no. 02-17413 (May 30, 2007). Fearing that new standards for California arbitrators imposed by the Judicial Council would make its arbitrations in California more difficult, NASD and the New York Stock Exchange sought a declaratory judgment that the California standards were preempted by federal securities laws, could not constitutionally be applied to the plaintiffs’ arbitration programs, and were not applicable to those programs as a matter of state law. The district court dismissed the…
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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 Procedure, California Court of Appeal, California Procedure, Judges, Legal Writing, Record on Appeal
Settled Statements, New Trials, and the Languishing Criminal Defendant
When a reporter’s transcript of proceedings is unavailable for appeal, the appeal may proceed by way of a “settled statement.” California Rules of Court, rule 8.130(h). Some pitfalls of this procedure are revealed in People v. Cervantes, no. B183412 (May 16, 2007). On Cervantes’s first appeal, the court reporter advised that a technical malfunction prevented her from transcribing the testimony of the sole prosecution witness. Nearly a year after his conviction, Cervantes moved for summary reversal and a retrial based on the absence of the transcript. The Court of Appeal denied the motion but remanded for the trial court to determine if a settled statement could be obtained. At the…
- 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…
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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…
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Is it Futile to Cite Federal District Court Opinions? (Updated)
At How Appealing, Howard Bashman gives us this post about citing to district court opinions. He quotes a Seventh Circuit opinion decided yesterday that admonishes lawyers not to cite district court opinions, because they “lack authoritative effect,” and instead to incorporate “into their own presentations” whatever persuasive rationale is offered in the opinion. Bashman appears to doubt lawyers will heed this advice: The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited. I think he’s right. And…
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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.