In a decision being closely watched by many, the California Supreme Court holds today in Olson v. Automobile Club of Southern California, case no. S143999 (Feb. 28, 2008), that Code of Civil Procedure section 1021.5, the state’s “private attorney general” statute, does not authorize a court to award expert witness fees in addition to the attorney fees explicitly authorized by the statute. As the court notes, the statute explicitly authorizes an award of “attorney fees” and is silent about expert witness fees. Which should have made for an easy decision. Yet the court is compelled to delve behind the plain language of the statute. The decision is a good primer…
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Self-Represented Attorney May Not Recover Fees on Anti-SLAPP Motion
In Taheri Law Group v. Neil C. Evans, case no. B192828 (2d Dist. Feb. 26, 2008), the Court of Appeal holds that the attorney fee provision in the anti-SLAPP statute (Code Civ. Proc., § 425.16) does not entitle a self-represented attorney to recover fees for bringing a successful anti-SLAPP motion. This is merely an extension of the similar holding in Trope v. Katz (1995) 11 Cal.4th 274, which held that a self-represented attorney could not recover fees under a contractual fee provision. The Taheri court makes clear that an attorney-client relationship is necessary before fees may be recovered. The identical issue of anti-SLAPP attorney fees was treated in much greater…
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Parolee May Get Private Counseling without Waiving Privilege
Where parole is conditioned on the parolee receiving psycotherapy (in this case, because of the sexual nature of the offense), and the parolee retains a private therapist in addition to using state-provided therapy, is the parolee required to waive the psychotherapist-patient privilege regarding the private therapist in order to remain on parole? The state in In re Corona, case no. B197023 (2d Dist. Feb. 20, 2008) insisted that the parolee must waive the privilege. The Court of Appeal says otherwise. The court found that Corona should be commended, rather than threatened, for seeking additional therapy, at least absent the state’s ability to identify a “nefarious reason” that he did so.…
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O.J.’s Jurisdictional Challenge Goes Nowhere
Does a court need to have personal jurisdiction over a judgment debtor at the time it renews a judgment in order for that renewal to be valid? In Goldman v. Simpson, case no. B200082 (2d Dist. Feb. 20, 2008), O.J. Simpson moved to vacate the renewal of the judgment against him on the ground it was void for lack of personal jurisdiction because he resided in Florida at the time the court renewed the judgment. He appealed from the denial of the motion to vacate. The Court of Appeal affirms. Code of Civil Procedure section 683.170, subdivision (a) provides in part that “[t]he renewal of a judgment pursuant to this…
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Treated Like Cattle
The recent, highly publicized recall of more than 143 million pounds of beef may make Animal Legal Defense Fund v. Mendes, case no. F052009 (5th Dist. Feb. 15, 2008) more relevant to some people than it otherwise would have been. It’s a suit brought by the Fund against a calf rancher, alleging violation of Penal Code section 597t for confining animals without an “adequate exercise area.” Plaintiffs also include consumers who allege violation of the unfair competition statutes. The consumers “reasonably presumed” that dairy products they purchased were produced from animals kept in compliance with the law and alleged that they lost money by purchasing dairy products that were illegally…
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Collateral Estoppel and the Exhaustion Doctrine
Must a whistleblower whose claim is denied at the administrative level exhaust his judicial remedies by petitioning for mandamus in the Superior Court before he may file a civil suit under the Whistleblower Act? That was the apparent question in CALPERS v. Superior Court, case no. C054168 (3d Dist. Feb. 15, 2008), where CALPERS contended that its demurrer to the civil suit should have been upheld because the plaintiff, whose whistleblower administrative claim had been denied by the State Personnel Board, did not challenge the SPB executive officer’s findings by petitioning for mandamus. The answer is, “it depends.” That’s because the issue isn’t so much whether the statute requires exhaustion…
- Appellate Procedure, Attorney Fees, California Procedure, Post-Trial Practice, Standard of Review, Statutory Construction
Review of “Private Attorney General” Fee Awards
Kimberly Kralowec at The Appellate Practitioner points out a case from earlier this month, Roybal v. Governing Board of the Salinas City Elementary School District, case no. H030596 (Jan. 11, 2008, ordered published Feb. 6, 2008), in which the Court of Appeal neatly summarizes the proper standards of review to apply when reviewing attorney fee awards made pursuant to California’s “private attorney general” statute, Code of Civil Procedure section 1021.5. The case recognizes the Supreme Court’s 2006 departure from the one-size-fits-all “abuse of discretion” standard in recognition that some awards may be due more deferential review in light of their fact-intensive nature, while those revolving around legal issues like statutory…
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Preserving Evidentiary Objections for Appeal from a Summary Judgment
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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Scope of Decision by Reviewing Court Can Limit Preclusive Effect of Trial Court Ruling
In Zevnik v. Superior Court, case no. B201105 (2d Dist. Jan 18, 2008), the Court of Appeal continues a string of recent cases holding (contrary to older cases) that where a trial court relies on alternative grounds, each sufficient to uphold its decision, and appellate review follows, only the ground relied on by the appellate court has collateral estoppel (issue preclusion) effect. In Zevnik, the petitioners were lawyers sued for malpractice and breach of fiduciary duty arising out of a conflict of interest in representing multiple clients in prior litigation. Petitioners sought preclusive effect for the trial court’s findings on a disqualification motion in the prior litigation, in which the…
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I Hate Motions for Reconsideration
Another good post from Professor Martin yesterday, this time concerning In Re Marriage of Barthold (1st Dist. Jan. 15, 2008). The court summarizes its holding in the initial paragraphs: The California Supreme Court held, in Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois), that even when Code of Civil Procedure section 1008 (section 1008) precludes a party from moving for reconsideration, a trial court has inherent authority to correct an erroneous ruling on its own motion. In this marital dissolution case, the trial judge denied a post-judgment motion filed by the wife. She promptly filed a motion for reconsideration. The trial judge determined that the motion did not…
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Court of Appeal Takes On Dispositive Motions in Limine
I’ve told you about one or two of my lingusitic peeves before. In Amtower v. Photon Dynamics, Inc., case no. H030386 (6th Dist. Jan. 17, 2008), the Court of Appeal takes on one of my peeves about procedure, and I’m glad to see it. Just prior to trial, the defendant moved in limine to exclude all evidence on one of plaintiff’s claims (the “section 11 claim”) on the ground that the claim was barred by the statute of limitations. The trial court granted the motion. After a jury trial and judgment for defendant on the remaining claims, plaintiff argued on appeal that “the trial court’s use of an in limine…
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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…
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Challenge to Post-Plea Sentencing Procedure does not Require Certificate of Probable Cause
After being found mentally competent to stand trial, Rodney Oglesby pleaded guilty to committing domestic violence, aggravated assault and — worst of all, or at least co-equal with his other crimes, at least according to PETA — killing a kitten. The competency finding was based, per the stipulation of the parties, on just one of the psychiatric reports. The other psychiatrist opined he was incompetent. Oglesby fought his court-appointed attorney every step of the way. He asked for, and was denied, new counsel, then accepted a plea deal offered by the People, in which his lawyer refused to join. In fact, his lawyer insisted that Oglesby was not competent. He…
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Compare and Contrast: Virginia and California
Waaaaaayy outside our usual jurisdiction, but California appellate lawyers may be interested in reading this post by “S. COTUS” at Appellate Law & Practice, which in turn links to this post at the SW Virginia Law Blog about the en banc Virginia Court of Appeals opinion in Moore v. Commonwealth. If I read these posts correctly, and they accurately portray the case, the posts demonstrate a wildly different approach to appellate jurisdiction in Virginia than in California, for which we should probably all (well, at least those of us representing appellants, and all appellants in pro per) breathe a sigh of relief. The court dismisses the appeal because the “petition…
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Easing Back into Things with Some Reminders from the Judicial Council
OK, I’m going to ease back into posting here with some easy ones. The California Courts website now has up-to-date versions (i.e., the versions effective as of January 1, 2008) of the following posted: Judicial Council Forms. This is a nice list, as it is only of the forms that have changes or been added, and the page includes a link to download all of the changed and new forms in a single zip file with one click. This list includes two forms for appeals, APP-003 — Appellant’s Notice Designating Record on Appeal (Unlimited Civil Case) and APP-008 — Certificate of Interested Entities or Persons. The latter is a brand…
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California’s 90-Day Rule
The California Constitution (Article VI, sec. 19) prohibits a judge from drawing pay “while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.” A one-page “barrister’s tips” column by Ben Shatz at page 11 of this month’s Los Angeles Lawyer (in PDF format here) gives some nifty background on how this rule is enforced and how it can affect proceedings, including decisions to vacate submission and the scheduling of oral argument.
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Supremes Deny Republication of Lockheed Litigation Cases
You might remember my post from early November about the dismissal of Supreme Court review of the Lockheed Litigation Cases. Review was dismissed because a majority of the justices recused themselves due to conflicts of interest created by their ownership of stock in one or more of the oil company defendants. The oil companies, who prevailed in the Court of Appeal, sought to have the Court of Appeal opinion republished. Wednesday, the three non-recused Supremes and one designated Court of Appeal Justice voted 4-0 to deny republication. Those justices that had recused themselves from review likewise recused themselves from the republication decision. I remain baffled by Chief Justice George’s rationale…
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Split of Authority re Mandatory Relief under CCP § 473(b)
The first time I read Code of Civil Procedure section 473(b) and the practice guides about it, it horrified me. There I was, a very young lawyer at a BigLaw firm, reading that the court must grant relief from a default if the attorney swears by affidavit that the default was due to the mistake, inadvertence, surprise, or neglect of the attorney. I thought that surely, from time to time, some attorney has relied on this provision, admitting fault, only to have the court deny relief because the relief sought did not fall within the mandatory provision of section 473(b). Shudder. But I never read about that actually happening until…
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Potentially Void Judgment Reversed on the Merits
Here’s a post I’ve been saving for a time where I’m too busy to spend much time on new content. I may get a post up later in the day, but in the meantime, I’ll get on my soapbox about why I think the Court of Appeal blew it on a jurisdictional question in Holland v. Union Pacific Railroad Co., case no. C052833 (3d Dist. July 30, 2007, certified for publication August 29, 2007). The case came up on appeal from a summary judgment granted on the ground that the plaintiff’s administrative complaint was untimely. The timeliness of the administrative complaint turned on whether the Department of Fair Employment and…
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Supreme Court Gets Rid of Conflicts by Dismissing Case
Laura Ernde, a staff writer at the Daily Journal, alerted me to her piece in yesterday’s edition of that paper about last week’s dismissal of the Lockheed Litigation Cases, case no. S132167. According to her article, this was one of the oldest matters on the court’s docket and the dismissal comes more than two years after briefing was complete. The dismissal apparently arises out of conflicts of interest. According to the article, four of the seven justices had recused themselves from these five consolidated toxic tort cases because they owned stock in at least one of the oil company defendants. The Supreme Court’s actual order is not posted as a…
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Recent Judicial Council Action on Appellate Issues
The Judicial Council approved several recommendations of the Appellate Advisory Panel on the Council’s “consent agenda” for its October 26, 2007 meeting. Those recommendations include rule amendments/additions regarding costs and sanctions, designation of the record on appeal, clarification regarding extensions of time to appeal, overlength briefs in capital cases, and citation format. See the agenda (available as a PDF download here) for details. If you’re interested in how the discussion items were actually debated at the meeting, the Council has made audio files of the meeting available, broken down by discussion item, here.
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Enforcing a Foreign Judgment
You don’t always get three positions advocated on a single issue in a single appeal. On the subject of the statute of limitations for enforcing a foreign money judgment, that’s exactly what the Court of Appeal heard in Guimaraes v. Northrup Grumman, case no. B194205 (2d Dist. Oct. 30, 2007). For the position that the “catch-all” limitations period of Code of Civil Procedure section 343 applies, Northrup relied on a 116-year-old California Supreme Court case. Not usually a good sign. And despite prevailing in the trial court, Northrup loses on appeal. The court adopts Guimaraes’s position that the intervening enactment of the Uniform Foreign Money-Judgments Recognition Act (Code Civ. Proc.,…
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John Doe Arrest Warrant Based on DNA Satisfies Statute of Limitations
In People v. Robinson, case no. C044703 (3d Dist. Oct. 26, 2007), the court of appeal holds that a “John Doe” arrest warrant that describes the person to be seized by DNA profile suffices to “commence” a prosecution for purposes of the statute of limitations for a sexual offense. Penal Code Section 804, subdivision (d) provides that a felony prosecution is “commenced” when “[a]n arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.” (Emphasis added.) The DNA profile in this case satisfies the state and federal constitutional requirements that the warrant…
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Beware the Statute of Frauds
As I think many lawyers are, I am constantly amazed at the relationships people are willing to enter into on little more than a handshake. As every first-year law student knows, the Statute of Frauds can prevent the enforcement of a certain contracts not in writing, and in Elias Real Estate, LLC v. Tseng, case no. B192857 (2d Dist. Oct. 25, 2007), it rears its ugly head and gives us a rare example of reversal due (in part) to insufficiency of the evidence. If your looking for a company you can trust then I highly recommend Mission real estate. The four defendant Tseng brothers own some real property as tenants…
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Domestic Violence Case Provides Grounds for Review Despite Mootness
It turns out that the Court of Appeal decided two cases yesterday, despite their mootness, on the ground that the issues presented involved important public policies and were “capable of repetition yet evading review.” Both are family law cases. (I wrote about the first in the post immediately preceding this one.) In the second, Gonzalez v. Munoz, case no. B197860 (2d Dist. Oct. 24, 2007), the issue arises under the Domestic Violence Protection Act, and the Court of Appeal gives greater insight into its decision (footnotes omitted) to decide a moot case: As this Las Vegas family law attorney observed just last year, “It is rare for a Court of…
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Siblings are Siblings Regardless of Parental Rights Termination
Catherine’s parental rights to Jose were terminated by the court. A few years later, she gave birth to Miguel and Miguel sought sibling visitation with Jose. (Welf. & Inst. Code, § 388.) In In re Miguel A., case no. D050694 (4th Dist. Oct. 24, 2007), the trial court denied the petition for visitation on the ground that Miguel and Jose never concurrently shared a parent because of the termination of Catherine’s parental rights prior to Miguel’s birth, and thus they were not siblings. The Court of Appeal finds error as a matter of law. Since section 388, subdivision (b) permits sibling status to be proven by blood, adoption, or “affinity…
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Failure to Brief and the Bounds of Discretion
Two interesting, though not new, appellate angles in Nakamura v. Parker, case no. A115626 (1st Dist. Oct. 22, 2007). It’s an appeal from the summary denial of a temporary restraining order sought under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.), which had the effect of dismissing the appellant’s entire action. First Issue: Respondent did not file a brief in the appeal. Automatic reversal, right? Wrong. While many people — at least among those who don’t practice in appeals — assume that failure to file a respondent’s brief will mean an automatic win for the appellant, that’s not the case. Appeals are all about reviewing for error.…
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Relation Back Doctrine Applies in Trial Deadline Context
In Brumley v. FDCC California, Inc., case no. A114840 (1st Dist. Oct. 22, 2007), the Court of Appeal holds that the relation back doctrine applies to claims in an action when dismissal is sought on the ground that plaintiff(s) failed to bring the action to trial within 5 years of filing the original complaint. (Code of Civil Procedure sections 583.310, 583.360.) Thus, where the wife and children of the original plaintiff substituted in as plaintiffs for purposes of personal injury asbestos claims that survived his death and amended the complaint to include a TomKiley Law Group wrongful death claim, the 5-year deadline for bringing the wrongful death claim to trial ran…
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CALCRIM No. 3450 Survives Appellate Challenge
CALCRIM No. 3450 is a long instruction that that sets forth the defendant’s burden of proof on insanity. Its very length and comprehensiveness appear to be what saves it in People v. Thomas, case no. C052849 (3d Dist. Oct. 22, 2007). The instruction includes this paragraph: If you conclude that at times the defendant was legally sane and other times the defendant was insane, you must assume that he was legally sane when he committed the crime. Because virtually every mentally ill person has lucid moments, contended the defendant, this language in the instruction essentially directs a finding of sanity. According to defendant, the instruction “require[d] [the] jury to find…
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Privilege within the Company
Lawyer advises the CEO of his client on some litigation strategy. Privileged communication, obviously. CEO then meets with his VPs and shares the information with them. Privileged? I always thought it should be, and now I have the decision in Zurich American Ins. Co. v. Superior Court (Watts Industries, Inc.), case no. B194793 (2d Dist. Oct. 11, 2007) to back me up. The court holds that the trial court construed the attorney-client privilege too narrowly by exempting from discovery only those documents that “contain actual copies of letters or e-mail communications from outside counsel, or documents that have been created by counsel, or received by counsel, or that contain direct…