• Announcements,  Legal Writing,  Summary Judgment,  Summary Judgment and Summary Adjudication,  Waiver of Issues

    SB 470 codifies Reid v. Google, Inc., provides that objections to summary judgment evidence are preserved for appeal

    August 11, 2015

    On Monday, according to this article at The Recorder, Governor Brown signed SB 470, amending Code of Civil Procedure section 437c, which governs procedure for motions for summary judgment and summary adjudication. For appellate practitioners, the significance of the bill lies in its codification of Reid v. Google, Inc. (2010) 50 Cal.4th 512. Reid held that objections to evidence submitted in support of a motion for summary judgment are preserved for appeal even if the trial court fails to rule on the objections. Prior to Reid, the courts were split on whether such objections were preserved. I’m unaware of any lingering controversy over the issue since Reid, but it is nonetheless satisfying to see its holding codified.…

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  • Appellate Procedure,  Judicial Notice,  Waiver of Issues

    No judicial notice for a law of physics, but for a different reason than you might expect

    June 24, 2015

    I had to take the “high track” physics courses as part of my electrical engineering major curriculum at Canoe U. In fact, I liked my physics classes more than my engineering classes, and regret to this day I did not major in physics. So the discussion in Bermudez v. Ciolek, case no. G049510 (2d Dist., June 22, 2015), in which the court refuses to take judicial notice of a law of physics, caught my eye. Bermudez is an automobile accident case, in which defendant Ciolek was the driver of a car that collided with a second car driven by defendant Heacox, which in turn struck plaintiff, who was on the…

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  • Standard of Review,  Summary Judgment,  Waiver of Issues

    Appellate lessons abound in case involving a creative but dubious argument on how a tentative ruling should affect appellate review

    October 7, 2013

    Last year, I wrote about a dubious but creative argument by a respondent that a party’s submission to a tentative ruling on a motion forfeited that party’s right to challenge the motion ruling on appeal. As you might remember, that went nowhere. The latest creative (and dubious) use on appeal of a tentative ruling — again unsuccessful — comes in Meddock v. County of Yolo, case no. C070262 (3d Dist., filed Sept. 10, 2013, ordered published October 4, 2013). Meddock appealed from a summary judgment for the defendant. His argument on how the tentative ruling on the defendant’s summary judgment motion should play into the appellate court’s analysis, and the…

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  • Appellate Jurisdiction,  Briefing,  Waiver of Issues

    Just what are you appealing from, anyway?

    June 20, 2012

    Over at The Ninth Circuit Blog of Appeals, I posted today about an appellant who tried to use a federal appeal from a post-judgment order as a vehicle to attack the underlying judgment, which had been entered five years earlier. On the very same day, the Sixth District published Marriage of Sameer, case no. H035957 (6th Dist., June 19, 2012), in which the appellant tried a similar tactic in California state court. You won’t be shocked to learn it doesn’t work there, either. In February 2008, the court entered a judgment on the stipulation of the parties, in which wife would receive spousal support with scheduled steps down in amount,…

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  • Appellate Procedure,  Waiver of Issues

    Submission to tentative ruling on motion does not forfeit arguments on appeal

    March 2, 2012

    For the procedural argument raised by the respondent in Mundy v. Lenc., no.  B227962 (2d. Dist. Feb. 29, 2012), I don’t know whether to give the respondent credit for creativity or jeers for an obviously wrong argument. Either way, she lost on the procedural point (but managed to defend on the merits partially in any event). At issue was whether the appellant was barred from challenging the trial court’s orders on two motions, either under the doctrine of invited error or the doctrine of waiver,  because the appellant had submitted to the trial court’s tentative ruling on each motion. The Court of Appeal reaches — what is to me, at…

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  • Appellate Jurisdiction,  Trade Secrets,  Waiver of Issues

    Manufacturing appellate jurisdiction over a discovery ruling

    March 19, 2009

    When I read Brescia v. Angelin, case no. B204003 (2d Dist. Mar. 17, 2009), I was reminded about how Saturday Night Live once ran one a commercial parody for a product with the advertising slogan “It’s a dessert topping! It’s a floor wax!  It’s two products in one!” How do I make that connection? Because when I was done reading the case, I thought, “It’s a dismissal after sustaining a demurrer! It’s a discovery ruling! It’s two rulings in one!” And so did the court of appeal, though it didn’t say it in so many words. Brescia cross-complained against respondents for trade secret misappropriation.  Code of Civil Procedure section 2019.210 requires a…

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  • Judgment,  Waiver of Issues

    The Judgment, the Whole Judgment, and Nothing But the Judgment

    October 25, 2008

    Sometimes, a judgment is a mixed bag. That’s how all the parties must have viewed the judgment in Satchmed Plaza Owners Assn. v. UWMC Hospital Corp., case no. G038119 (4th Dist. Oct. 23, 2008). The judgment enforced Satchmed’s right of first refusal with respect to 22 owned medical office units by requiring UWMC to offer them to Satchmed at a certain price. But the judgment did not require such an offer on 12 other units, which were leased. Unsurprisingly, perhaps, the judgment stated that there was no prevailing party. Mixed bags create competing incentives. Here, one incentive got the best of Satchmed. UWMC complied with the judgment by offering the…

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  • Appellate Procedure,  Waiver of Issues

    A Double Standard . . . of Review

    October 1, 2008

    An appropriate follow-up to last week’s post that discussed the pitfalls of the standard of review is United States v. Vega, case no. 07-50245 (9th Cir. Sept. 24, 2008). It illustrates a double standard that one wouldn’t ordinarily expect. In the district court, Vega challenged two conditions on the supervised release portion of his sentence.  On appeal, however, he argued that a third condition of his supervised release was also error. You might think he’d be out of luck entirely on that third condition, the general rule being that an argument cannot be made for the first time on appeal  But he’s not. Though Vega did not challenge the third condition…

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  • Appellate Procedure,  Attorney Fees,  Federal Procedure,  Preemption,  Waiver of Issues

    California Attorney Fee Recovery Preempted by ADA – and a Note on Missed Issues

    June 30, 2008

    It’s quite common for plaintiffs to sue under similar state and federal provisions.  The disabled plaintiffs who sued under both the federal Americans with Disabilities Act and the California Disabled Persons Act in Hubbard v. Sobreck LLC, case no. 06-56870 (9th Cir. June 27, 2008) did themselves a favor by doing so, as the court finds that the prevailing defendant’s right to attorney fees under the CDPA is preempted by the more stringent fee provision in the ADA. The ADA fee provision makes fees discretionary, but that has led to a practice of awarding fees to defendants only where the plaintiff’s case is frivolous.  The CDPA, on the other hand,…

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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

    June 16, 2008

    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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  • Appellate Jurisdiction,  Appellate Procedure,  Criminal Procedure,  Federal Procedure,  Plea Bargains,  Sentencing,  Waiver of Issues

    Waiver of Appeal Rights in Plea Agreements

    June 5, 2008

    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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  • Appellate Procedure,  Briefing,  California Procedure,  Standard of Review,  Waiver of Issues

    The Limits of Wende

    April 21, 2008

    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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  • Appellate Procedure,  Federal Procedure,  Waiver of Issues

    Preserve Your Sentencing Objections

    April 16, 2008

    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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  • Appellate Procedure,  New Trials,  Summary Judgment,  Waiver of Issues

    Appellate Surprises

    April 1, 2008

    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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  • California Procedure,  Evidence,  Summary Judgment,  Waiver of Issues

    Preserving Evidentiary Objections for Appeal from a Summary Judgment

    February 1, 2008

    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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  • Appeals,  Appellate Procedure,  Federal Procedure,  Waiver of Issues

    Chutzpah on Appeal

    December 15, 2007

    “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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  • Federal Procedure,  Jurisdiction,  Waiver of Issues

    Process Serving Gamesmanship

    December 12, 2007

    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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  • 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

    December 6, 2007

    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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  • Appellate Procedure,  Briefing,  Standard of Review,  Waiver of Issues

    Things You Don’t Want to Read about Your Work

    December 5, 2007

    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…

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  • Appellate Procedure,  Jurisdiction,  Waiver of Issues

    Failure to Exhaust Administrative Remedies is a Waivable Defense

    November 27, 2007

    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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  • Appellate Procedure,  Waiver of Issues

    “Forfeiture” vs. “Waiver” of Issues on Appeal

    November 16, 2007

    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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  • Appellate Procedure,  Jurisdiction,  Standing to Appeal,  Waiver of Issues

    Not Every Procedural Error is Jurisdictional

    November 16, 2007

    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,  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

    July 30, 2007

    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…

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  • Appellate Jurisdiction,  Appellate Procedure,  Waiver of Issues

    Can a Trial Court Require Parties to Waive Appellate Review?

    July 23, 2007

    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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  • ADR,  Appellate Procedure,  Arbitration,  Waiver of Issues

    Waiving Issues in Arbitration

    July 2, 2007

    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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  • Appellate Procedure,  Federal Procedure,  Post-Trial Practice,  Waiver of Issues

    Unitherm Precludes Plain Error Review, Too

    June 26, 2007

    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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