I think you’d have a hard time finding any attorney who enjoys the process of written discovery. The process is unpleasant, especially when dealing with a stubborn party or counsel. The costs can be staggering. It gets even more unpleasant when disputes arise. Depositions (as opposed to written discovery) can be fun, but the fun goes away once a dispute arises. You may be able to ease the pain somewhat by consulting the Resolving Discovery Disputes blog run by Foster City attorney Katherine Gallo. I ran across it the other day and, after reading the post I had found in my internet search, kept reading post after post, finding them…
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Affirming on appeal on an alternate ground – the rule as applied to section 473(b) motions for relief
Sometimes, the trial judge’s reasoning underlying a judgment is so obviously wrong that it seems to present a “slam dunk” appeal. But the rules of appellate review favor the judgment below, and that slam dunk (really, there is no such thing on appeal) can turn out to be a miss. The appellants in Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) learned this the hard way. The appellants were defendants who successfully moved for an entry of dismissal after the plaintiff failed to file an amended complaint following an order sustaining demurrers with leave to amend. The plaintiff filed a motion under Code of Civil Procedure section 473(b) to set aside the…
- 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
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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Don’t treat one superior court judge as the reviewing court for another
Writs and appeals are sometimes not the only routes (or even the preferred routes) to relief from an adverse order or judgment. Motions for reconsideration, post-trial motions for new trial or to vacate the judgment, and motions to set aside a judgment all have the possibility of getting you a “reversal” of sorts without ever leaving the superior court. I’ve written before about how a superior court judge may change a prior interim ruling on his own motion, even when the decision to do so is triggered by a faulty motion for reconsideration. The chief limitation on this practice is that, in most cases, one judge on a superior court…
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Judgment assignees better be careful
Last month’s decision in Cal-Western Business Services, Inc. v. Corning Capital Group, case no. B241714 (2d Dist., November 6, 2013) makes for some interesting reading and a cautionary tale for those who purchase assignments of judgments. Corning Capital found itself on the losing end of a money judgment. The original judgment creditor assigned the judgment to Pacific West One Corp., who then assigned it to the unfortunate Cal-Western. Why unfortunate? Because Pacific West One’s corporate status was suspended at the time it gave the assignment and was never revived, and the trial court held that as a result, Cal-Western lacked capacity to enforce the judgment against Corning Capital. The Court…
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Uniform Trade Secret Act preemption error results in reversal — and some lessons on review of orders granting summary adjudication
I have a feeling that the plaintiff’s attorney in Angelica Textile Services, Inc. v. Park, case no. D062405 (4th Dist., October 15, 2013), didn’t lament too much the loss of a jury trial on the plaintiff’s claim for trade secret misappropriation, even though on the surface, it looked like plaintiff’s last gasp following the dismissal of plaintiff’s other claims for breach of contract, unfair competition, breach of fiduciary duty, interference with business relations, and conversion, all of which related to conduct that involved the alleged trade secrets. After all, plaintiff had an ace up his appellate sleeve. The merits The claims were all related to the conduct of the plaintiff…
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Appellate lessons abound in case involving a creative but dubious argument on how a tentative ruling should affect appellate review
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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Falling on your 473(b) sword only gets you so far
Oddly enough, this point is made in a case where no one actually fell on their sword. The title of this post comes from my nickname for the mandatory relief provision in Code of Civil Procedure section 473, subdivision (b) (my emphasis): Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry…
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What does “abuse of discretion” mean in your case?
Sometimes, it seems that defining an “abuse of discretion” is like nailing jello to the wall (maybe worse, since the latter is difficult, but not impossible). There are many nuances to the standard, which can depend on the statute being applied, the basis for the abuse of discretion, and the particular procedural posture of the case. The last of these variables is what helps the appellant overcome this highly deferential standard of review and have the default judgment against it lifted in Fasuyi v. Permatetex, Inc. case no. A117760 (1st Dist. Oct. 15, 2008). Permatex made a motion under Code of Civil Procedure section 473 to vacate the default judgment against…
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Don’t Forget, Appellants: The Record is Your Burden, Too
Everyone knows, or should know, that part of the appellant’s burden of demonstrating prejudicial error is to present a record that adequately demonstrates the error. If you’re arguing the court erred in granting summary judgment, you’d think it would be pretty obvious to include all the moving papers, including the moving party’s statement of undisputed material facts (Code Civ. Proc. § 437c, subd. (b)(1)). The appellant in Gunn v Mariners Church, Inc., case no. G038445 (4th Dist. Sept. 2, 2008, ordered published Sept. 30, 2008), failed to include the moving party’ separate statement, with potentially dire consequences, but catches a break from an accommodating court: Critical to our review of…
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Peremptory Challenge to Judge After Remand Has Its Limits
Virtually every civil litigator knows about the procedure afforded by Code of Civil Procedure section 170.6 for disqualification of the judge assigned to the case. Commonly called “papering the judge,” the requirements of the section are so meager that such challenges are also referred to as “peremptory” challenges, though not technically so (to my mind), and my guess is that any civil litigator who has practiced for more than a few years has invoked section 170.6 at least once. Maybe you didn’t know that this disqualification procedure is available even after reversal on appeal. Subdivision (a)(2) of section 170.6 provides A motion under this paragraph may be made following reversal…
- Appellate Procedure, California Procedure, Discovery, Mandamus/Prohibition, Standard of Review, Writ Practice
An Important Discovery Ruling Overcomes a Deferential Standard of Review
For a prospective appellant (or, as in the case profiled here, the prospective writ petitioner), the “abuse of discretion” standard of review can be daunting, and may even convince the party that the pursuit of an appeal or writ is not worthwhile. Not only does it set a high bar for reversal, but it can be very difficult to define within the circumstances of a case. (I’ve written before about the somewhat hazy nature of the “abuse of discretion” standard of review.) Against this backdrop, Alch v. Superior Court, case no. B203726 (2d Dist. Aug 14, 2008) presents a very interesting discussion of the standard as it introduces its decision…
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“A Sadistic Urge to Torment Lawyers”
Image via Wikipedia I always assume that all of the rules of procedure will be strictly construed against me, and that opposing counsel will be allowed to get away with murder. To me, it’s the smart way to practice: dot your I’s and cross your T’s. In Whitehead v. Habig, case no. G037991 (4th Dist. May 28, 2008, ordered published June 5, 2008), the appellants had appealed a summary adjudication and default judgment on the remaining claims. In opposing the summary adjudication motion, the appellants never filed their own separate statement of undisputed and disputed material facts (Code Civ. Proc., § 437c, subd. (b)(3); Cal. Rules of Court, rule 3.1350(e));…
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A Judgment that Nobody Noticed Sinks an Appeal
How can the parties and the court all miss the fact that the court entered a judgment? Well, when the document that operates as such isn’t labeled “judgment,” I guess one can occasionally slip by . . . to the appellant’s great misfortune in Melbostad v. Fisher, case no. A119514 (July 23, 2008, ordered published Aug. 4, 2008), in which the court of appeal dismisses the appellant’s challenge to a fee award as untimely. In Melbostad, the trial court granted defendant’s special motion to strike under California’s anti-SLAPP statute (Code of Civil Procedure section 425.16) and entered an order dismissing the complaint “with prejudice.” It subsequently granted a motion for fees brought by…
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Flexibility on Appellate Jurisdiction
“Jurisdiction” and “flexibility” are terms that don’t really go together . . . most of the time. But I’ve taken note before of the willingness of California appellate courts to “save” appeals through various devices, such as a generous construction of the notice of appeal, or treating an appeal from a non-appealable order as a writ petition. In fact, these devices are used to save appeals from plainly non-appealable orders. They can also be employed where appellate jurisdiction — or lack of it— is less than clear, as in People v. Segura, case no. S148536 (Aug. 4, 2008), where the Supreme Court avoids deciding the issue by treating the appeal as…
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Why Did the Supreme Court Punt on a Jurisdictional Issue?
Regular readers know I am a jurisdiction geek, and today I get to sink my teeth into a jurisdictional oddity. Well, not a jurisdictional oddity so much as the odd behavior of the Supreme Court with respect to a jurisdictional question. I’ll get to the Supreme Court in a minute. First, a brief rundown on the issue from the case that led me to raise the question in the title to this post. In State of California ex rel Department of Pesticide Regulation v. Pet Food Express Limited, case no. C057156 (3d Dist. July 31, 2008), the court of appeal holds that an order enforcing an administrative subpoena is appealable.…
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Keep Appealing Orders Denying Post-Conviction Motions on Jurisdictional Grounds
People v. Picklesimer, case no. C056385 (3d Dist. July 2, 2008) reminds me of one of those time travel conundrums. You know, the ones that go something like (to pick a grisly example), “If you go back in time and kill your mother before she even gets pregnant with you, how can you ever exist so that you can go back in time and kill her?” In Picklesimer, the court of appeal dismisses an appeal because the appeal is taken from an order denying the defendant’s post-conviction motion for relief from the sex offender registration requirements, which the trial court denied on the ground that it lacked jurisdiction to grant…
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Appeal That Fee Award
I don’t usually review unpublished decisions for material for this blog. But unpublished decisions, even if they don’t create new law, can have some interesting points. (Just ask Bisnar | Chase.) California Attorney’s Fees has a good post, based on an unpublished decision filed last Monday, reminding everyone to appeal separately from a fee award in addition to any appeal from the judgment. The appellant in the case filed an untimely notice of appeal from the judgment that did not include an appeal from the subsequent fee award, then filed an untimely notice of appeal from the fee award. Result: untimely appeal, no jurisdiction, appeal dismissed.
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Who Knows Why Some Parties Appeal?
Sometimes a decision just makes no sense, at least to someone looking at it from the outside. Such is the case with Profit Concepts Management, Inc. v. Griffith, case no. G039077 (4th Dist. May 5, 2008). Oh, the merits make sense. California-based Profit Concepts sued former employee Griffith in California under an employment agreement that contained an attorney fee provision. But Griffith lived in Oklahoma and successfully moved to quash service for lack of personal jurisdiction. The trial court awarded Griffith contractual attorney fees as the prevailing party. Reasonable enough. The court rejects Profit Concept’s argument that because the lawsuit, which it had resumed in Oklahoma, left contract issues pending…
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The Limits of Wende
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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The Ninth Asks the California Supremes for Help
Kimberly Kralowec reports at The Appellate Practitioner: Within the past seven days, the Ninth Circuit has issued two orders asking the California Supreme Court to rule on controlling legal questions pursuant to California Rule of Court 8.548[.] *** Such orders are relatively rare, so it is rather unusual to see two issued within five days of each other. There is no overlap on the panels. Unusual, indeed. Professor Martin says the request in one of the cases is particularly polite and respectful. I’m sure the Ninth is hoping for a better response than they got last October!
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Appellate Surprises
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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Producer’s Lawsuit Crashes
Did you ever wonder while watching the Academy Awards presentation on TV just who gets to go up on stage and receive an award as a “producer” when a film wins for best picture? Wonder no more. The procedure for identifying producers entitled to share in the award is succinctly explained in Yari v. Producers Guild of America, Inc., case no. B196817 (2d Dist. Mar. 25, 2008)., in which Yari runs up against the limitations on judicial review of a private organization’s decision-making processes. Yari contended he should have received an award as a producer for the 2004 best film award winner Crash. The selection process involves both the Guild…
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Order or Judgment? It can make a big difference!
More wrangling over what triggers a deadline to appeal. Several weeks ago, I reported on Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008), in which the court of appeal held that serving just one of multiple attorneys representing a party with a notice of entry of an order denying a motion for new trial suffices to trigger the deadline to appeal. In this order modifying the opinion without change in the judgment and denying rehearing, the court tacks two paragraphs on to its original opinion that lead me to the question posed in the title of this post. Though the original opinion refers to an August 7,…
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Is Summary Judgment Unconstitutional?
That’s surely a heretical thought to many. And not one that would have popped into my head had reader Joe Norman not commented on my post regarding new trial motions following summary judgment by sending a link to an article by University of Cincinnati College of Law professor Suja Thomas entitled “Why Summary Judgment is Unconstitutional.” Before you laugh off that idea, you ought to read the abstract at that link. An excerpt: While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is…
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An Odd Request
Not from me. From the plaintiff homeowners association in Pacific Hills Homeowners Assn. v. Prun, case no. G038244 (4th Dist. Mar. 20, 2008). The plaintiff association prevailed at trial, getting an injunction requiring the defendant to comply with covenants, conditions and restrictions and architectural guidelines by modifying a structure on their property. So far so good, but the judgment also required the homeowners association to pay two-thirds of the cost, so long as certain conditions were met. So when the defendant appealed, the association cross-appealed, arguing that the court was wrong to make it responsible for costs in moving the gate. The association then asserted — apparently in its briefs,…
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A Dilemma for Some Defendants Who Seek to Arbitrate
It’s a long-held rule in California that a defendant sued on a contract may recover attorney fees pursuant to a provision in the contract even if the defendant prevails on a theory that he was not a party to the contract or that the contract is nonexistent, inapplicable, invalid or unenforceable. The rule exists in order to further the purpose of Civil Code section 1717, which is to make unilateral fee provisions reciprocal. If a defendant could not recover fees after successfully defending on these grounds, then the ability to recover fees would be limited to a prevailing plaintiff, which would frustrate the the public policy of mutuality underlying the…
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New Trial Motions after Summary Judgment
Can you move for a new trial when your case was disposed of by summary judgment? This question undoubtedly causes some degree of cognitive dissonance in many lawyers: a new trial when there was no trial? But the answer is “yes.” A reminder comes in the form of Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008). After United successfully moved for summary judgment, Doe moved for a new trial on the ground of “newly discovered evidence” that purportedly raised a triable issue of fact precluding summary judgment. Not that it ultimately did her any good. The court of appeal holds that the trial court abused its…
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Another Private AG Fees Case Headed for the Supremes?
Well, we just had one Supreme Court opinion on the private attorney general statute (about which I posted here), and at first, I suspected that the Third District Court of Appeal was trying to tee up another one for potential Supreme Court review in Marine Forests Society v. California Coastal Commission, case no. C052872 (3d Dist. Mar. 4, 2008). To my mind, its public policy implications are significant. At issue is the scope of the “catalyst” theory for recovering attorney fees under California’s “private attorney general” statute, Code of Civil Procedure section 1021.5. The catalyst rule provides that a party can recover fees under the statute even if it is…
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Notice to One of Multiple Attorneys Suffices to Trigger Deadline to Appeal
It’s not that uncommon to see a party represented in a lawsuit by more than one law office. That party often requests service of documents be made on all of its attorneys. Notwithstanding such a request, the court of appeal holds in Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008) that the mailing of notice of entry of judgment to just one of multiple firms representing a party triggers the deadline for that party to file its notice of appeal. Adaimy claimed the notice of entry of the order denying his new trial motion was ineffective, thus giving him 180 days from the date of entry of…