• California Court of Appeal,  California Courts,  e-Filing,  Legal Technology

    TrueFiling comes to the Second District Court of Appeal

    Perhaps the title of this post should be the other way around: The Second District Court of Appeal comes to TrueFiling. Although the The Second District has had e-filing for some document sin place for several years, it appears to be the last appellate court in the state to embrace e-filing of everything via TrueFiling. With the upgrade come some new formatting requirements that were previously only suggestions. Electronically filed documents must now include electronic bookmarks to “to each heading, subheading and component of the document, such as the table of contents, table of authorities, petition, verification, points and authorities, declaration, certificate of word count, certificate of interested entities or persons, and…

  • California Court of Appeal,  California Courts,  Courts,  Judges

    Four added to pool of prospective First District Justices

    The Recorder reports on three judges Governor Brown has asked to have evaluated for vacancies on the First District Court of Appeal. Brown has asked the State Bar’s Commission on Judicial Nominees Evaluation to vet San Francisco Superior Court Judge Marla Miller, Contra Costa County Superior Court Judge Diana Becton and ACLU staff attorney Linda Lye for openings on the San Francisco-based appellate court. Therese Stewart of the San Francisco city attorney’s office is also being evaluated by the commission. Of course, everything will remain up in the air for a while. Submission of a name to the commission usually indicates serious interest on the governor’s part, though there are…

  • California Court of Appeal,  California Courts,  California Supreme Court

    Some Highlights from the 2013 Court Statistics Report

    Would you like to know how busy Court of Appeal justices are? Maybe you’re curious instead about the odds of getting that writ petition you’re considering heard on the merits. Those curious about court statistics have a friend in the Judicial Council of California, which publishes annual statistical reports and has release its 2013 Court Statistics Report: Statewide Caseload Trends 2002–2003 through 2011–2012 (available as a PDF and in an MP3 audio format). The report covers data through the close of fiscal year 2012. (All references to years are to fiscal years.) I finally got a chance to look at it over the weekend, and here are a few of…

  • California Court of Appeal,  California Courts,  California Supreme Court,  Judges

    Riverside Appeals Court goes 3-for-3 with the Supremes

    That’s one of the interesting things you can learn from the chart that accompanies a front page article in yesterday’s Daily Journal. District 4, Division 2, sitting in Riverside, is one of only two divisions to have a perfect record on the review of its decisions by the California Supreme Court in the last twelve months. The other is First District, Division 1, which had only one case reviewed. Three divisions had no decisions reviewed by the Supreme Court in that period. While Division 2 in Riverside was batting a thousand, their Fourth District colleagues in Division 3 (Santa Ana), batted .ooo, getting reversed on all five cases reviewed from…

  • Appeals,  California Court of Appeal,  Legal Education

    Big city justices roll into Napa

    The First District Court of Appeal convened yesterday in Napa to hear two criminal cases at a public auditorium before about 400 high school students. The justices also treated the students to a Q&A session. Given that most people’s exposure to the law through the entertainment media nearly always involves a trial, this session strikes me as an excellent opportunity to educate the public about appeals. After all that exposure to movie-version trials, one suspects that the typical student, unless adequately briefed on the proceedings beforehand, would walk away from an appellate hearing saying to himself, “That’s it?” I’m curious whether that sentiment came out during the Q&A or in…

  • California Court of Appeal,  California Courts,  California Procedure,  Stare Decisis

    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…

  • California Court of Appeal,  California Courts,  California Supreme Court,  Death Penalty

    Death Penalty Appeals to Shift from Supreme Court to Court of Appeal?

    Monday’s announcement that the Supreme Court is seeking a constitutional amendment to have death penalty appeals heard in the Courts of Appeal (press release here) has predictably triggered blog coverage. Legal Pad calls the announcement a “bombshell,” poses several questions regarding the potential impact of such an amendment, and seeks answers from their readers. Crime & Consequences questions whether the proposed summary affirmance procedure for the Supreme Court to affirm Court of Appeal dispositions is functionally any different from discretionary review. The first comment on the post questions the propriety of justices “publicly lobbying to modify their jurisdiction” because practitioners who appear before them will be hesitant to publicly oppose…

  • Appeals,  Appellate Procedure,  California Court of Appeal,  California Supreme Court

    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…

  • California Court of Appeal,  California Supreme Court,  Judges

    2007 Annual Report on Judicial Branch

    This press release (PDF dowload) from the Judicial Council of California announces the release of its 2007 Annual Report (PDF Download). [The report is] a summary of the judicial branch’s significant progress and challenges in improving court administration and equal access for all Californians.  *** The report highlights the branch’s efforts, in cooperation with the legislative and executive branches of state government, to improve service to the public and describes key trends in court caseloads and workloads.

  • California Court of Appeal,  California Procedure,  Ethics,  Sanctions

    Study of Sanctions in Appellate Proceedings

    Ben Shatz, whom I’ve had the pleasure of meeting and corresponding with from time to time, has co-authored (with JoAnne Sweeny) an article recently published as “The Price of Frivolity: A Longitudinal Study of California Appellate Sanctions” (2007) 28 Whittier L.Rev. 1087. Here’s how the article describes itself in its introduction: This article attempts to fill that void [in literature regarding sanctions] by exploring the “5 W’s” — who, what, where, when and why — of California appellate sanctions by analyzing court of appeal sanctions awards from 2002 (the first year unreported cases were included in online search engines) through 2005.  More specifically, this article describes which courts award sanctions,…

  • 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…

  • California Court of Appeal,  Ninth Circuit,  Writ Review

    Writ Opinions

    When nearly 92% of all original proceedings in the California Court of Appeal are dismissed without written opinion (for fiscal year 2005-2006, the latest year for which statistics are provided in the 2007 Judicial Council report), it would be nice if the Court of Appeal would, in any given case, explain why that particular case made it past summary dismissal to review on the merits.  Too frequently, a writ opinion is silent on this question. I can’t offer empirical evidence, but my observation is that the Ninth Circuit addresses this issue explicitly much more consistently in its writ opinions.  This is probably because its decisions usually evaluate the Bauman factors,…

  • Appellate Procedure,  California Court of Appeal,  California Procedure,  Stare Decisis

    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…

  • Attorney Fees,  California Court of Appeal,  Contracts,  Post-Trial Practice

    Third Party Beneficiary to Contract May Invoke Attorney Fee Provision

    A few days ago, in my post “Of Walnut Trees and Attorney Fees,” I took issue with the Third District Court of Appeal’s holding that a party suing on a contract that it alleges does not include an attorney fee provision is not entitled to recover attorney fees notwithstanding that the defendant alleges that additional written terms of the contract contain an attorney fee provision.  Yesterday, a different panel of the Third District Court of Appeal and I agree on the attorney fee issue in Laduca v. Polyzos, case no. C050757 (July 16, 2007).  The issue is whether the property owner, as a third party beneficiary of the contract between…

  • California Court of Appeal,  California Procedure,  California Supreme Court

    2007 California Court Statistics Report Now Available

    The 2007 Court Statistics Report: Statewide Caseload Trends, 1996-1997 through 2005-2006 from the Judicial Council of California is now available for download here.  This 156-page report has all sorts of interesting statistics on activity in the courts.  What percentage of petitions for review are granted by the Supreme Court?  What percentage of writ petitions are summarily denied?  What percentage of appeals result in reversal?  How many traffic misdemeanor cases were filed in 2005-2006?  For answers to these and other questions over the most recent 10-year period for which statistics are available, download the report.

  • 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…

  • ADR,  Arbitration,  California Court of Appeal,  California Procedure

    American Express Waives Arbitration through Settlement Misrepresentations

    Remember that case in contracts class about whether promising to do something you were already going to do constituted consideration for a promise? The lawyers for American Express in the First District Court of Appeal case of Aviation Data, Inc. v. American Express Travel Related Services Co., Inc., case no. A111602 (July 6, 2007) apparently didn’t remember that day in contracts class.  So they promised during class action settlement negotiations to implement a computer program in exchange for a release of claims . . . even though AmEx had already been using the program for two years.  Then, as part of proceedings for court approval of the settlement, AmEx made…

  • California Court of Appeal,  Damages,  Personal Injury

    Discounted Third Party Purchase of Medical Account Doesn’t “Hanif-y” Plaintiff’s Recovery

    Mention Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 to a personal injury lawyer, and he’ll likely bristle.  Hanif, along with Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, held that an injured tort plaintiff may recover only the amount of medical expenses he or she paid or incurred, even if the reasonable value of those services is much higher.  Thus, a medical provider who writes down the bill or accepts a lesser amount from an insurer as payment in full effectively reduces the potential recovery of the plaintiff. Should the same rule apply if the medical provider sells the plaintiff’s account (including a lien against…

  • California Court of Appeal,  Legal Writing

    My Eyes Weren’t Deceiving Me After All

    So there I am, browsing the names of the opinions published yesterday, when I see it.  Can’t be right, I think.  I rub my eyes, look again.  Still there.  So I access the actual opinion, thinking that the name listing must be the result of some technical glitch.  Nope.  The names of the parties are on the opinion plain as day in NMSBPCSLDHB v. County of Fresno, case no. F050094 (June 26, 2007).  So I wonder whether the plaintiff is an “artist formerly known as” something else.  I’m so curious that I run a party name search in the Fifth District Court of Appeal and turn up several related cases…

  • Appellate Jurisdiction,  Appellate Procedure,  California Court of Appeal,  Discovery,  Writ Review

    An Appealable Discovery Order

    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…

  • Appellate Jurisdiction,  California Court of Appeal

    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…

  • Appellate Procedure,  California Court of Appeal

    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…

  • Anti-SLAPP,  Attorney Fees,  California Court of Appeal,  California Procedure,  Costs,  Jurisdiction

    Anti-SLAPP Attorney Fee and Costs Application is Timely any Time Prior to Final Judgment

    In Carpenter v. Jack in the Box Corp., case no. B188707 (May 25, 2007) the Second District Court of Appeal holds that an application for anti-SLAPP attorney fees and costs under Code of Civil Procedure section 425.16(c) by a plaintiff who prevails against an anti-SLAPP motion is timely so long as it is made before entry of final judgment in the action, even if it is not made until after resolution of the appeal of the order denying the anti-SLAPP motion. Carpenter brought an action for wrongful termination, defamation, and other tort and contract claims related to the termination of employment by Jack in the Box.  Jack in the Box…

  • California Court of Appeal,  Damages,  Landlord-Tenant

    Emotional Distress Damages for Statutory Habitability Action

    In McNairy v. C. K. Realty, case no. B178918 (May 22, 2007), the Second District Court of Appeal holds that tenants may recover emotional distress damages in an action under Civil Code section 1942.4 against their landlord for breach of statutory habitability standards. Reasoning that the term “actual damages” in the statute (since amended, but still allowing for “actual damages”) has a plain meaning that includes emotional distress damages, the court rejects the landlord’s contention that emotional distress damages in such actions will lead to windfall recoveries. The statute requires severe and prolonged habitability problems, which naturally lead to inconvenience: Generally, the residential tenant who has suffered a breach of…

  • 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(g). 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…

  • California Court of Appeal,  Motor Vehicles

    Helmetless Motorcyclist Equals Broken Taillight . . . Sort of

    I remember my motorcycling days fondly, and riding without a helmet was one of the greatest sensations of physical freedom I ever felt. Right up there with skydiving — maybe better. But I also think I was crazy to ride without a helmet. (I still think the skydiving made perfect sense.) Richard Quigley probably doesn’t think I was crazy.  He was cited nine times for riding his motorcycle without a helmet and contended that law enforcement officers were required to issue him “fix-it” tickets instead of regular citations because his lack of a helmet was an “infraction involving equipment” that required such treatment.  In Department of the California Highway Patrol…

  • 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…

  • California Court of Appeal,  Criminal Law,  Statutory Construction

    California Court Upholds Deadly Weapon Sentencing Enhancement for Animal Cruelty Conviction

    Division Four of the Second District Court of Appeal has just upheld a deadly weapon sentencing enhancement under Penal Code section 12022(b)(1) for a conviction of animal cruelty under Penal Code section 597(a). The court rejected the defendant’s contention that a deadly weapon enhancement could only apply to crimes against humans. Animal cruelty under section 597(a) is a felony, and section 12022(b)(1) only requires that the deadly or dangerous weapon have been used “in the commission of a felony or attempted felony.” In this matter of statutory construction, the court stated that “If we were to follow appellant’s interpretation, we would be required to insert the words ‘against a person’…

  • Anti-SLAPP,  California Court of Appeal,  California Procedure,  First Amendment

    California Anti-SLAPP Statute Does Not Protect Acts in Furtherance of Free Exercise of Religion

    When defendants were sued by their neighbors for nuisance arising from smoke and ash entering the neighbors’ properties from fires defendants regularly lit as part of religious rituals in their backyard, they filed a motion to dismiss under the anti-SLAPP statute (Code of Civil Procedure section 425.16). The Court of Appeal affirmed the trial court’s denial of the motion, rejecting the defendant’s contention that section 425.16 was intended to protect acts associated with the free exercise of religion. Section 425.16 “did not import wholesale the protections of the First Amendment.” The statute mentions only two of the rights enumerated in the First Amendment — freedom of speech and the right…