The standard for demonstrating a probability of success on a claim that a party seeks to dismiss on anti-SLAPP grounds has defied any clear definition. In Booker v. Rountree, case no. G038083 (4th Dist. Oct. 4, 2007), the court finds the standard is met under a quasi-summary judgment analysis — it is enough that the parties’ declarations gave competing versions of the facts and that Booker’s version, if believed, would lead to success. First, the facts. Two wheelchair-bound plaintiffs — Gunther and Rountree — filed separate lawsuits against Booker for violations of the Unruh Act relating to inaccessibility of Booker’s restaurant to persons in wheelchairs. Both were represented by the…
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Court of Appeal to the Rescue Again
My case law blogging has been weighted heavily toward substantive legal developments this week because I haven’t seen anything really procedurally interesting. Then along comes County of Orange v. Superior Court, case no. G037562 (4th Dist. Oct. 3, 2007) to make my week. The County appealed from an order for genetic testing to determine paternity pursuant to Family Code section 7575. While the appeal was pending, the County filed “a petition for a writ of mandate, prohibition, or other appropriate relief and requested an immediate stay of the trial court proceedings.” The court of appeal treated the petition as one for supersedeas, and granted relief (i.e., stayed enforcement of the…
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Legal Malpractice Tolling Decided by Supremes
It’s always nice to see a split of authority resolved. Code of Civil Procedure section 340.6 provides that the limitations period for legal malpractice against “an attorney” is tolled while “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” Before yesterday’s Supreme Court decision (just its second this month) in Beal Bank, SSB v. Arter & Hadden, LLP, case no. S141131(Sept. 27, 2007), the court of appeal had split on the question of whether the statute of limitations for legal malpractice is tolled against the former firm of an attorney who continues to represent the client after leaving…
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What Makes a Necessarily Included Offense?
In People v. Murphy, case no. C046923 (3d Dist. August 29, 2007, modified Sept. 25, 2007), the defendant contended that she was “improperly convicted for both selling the cocaine rock in count one and possessing that same rock for sale in count two, a necessarily included offense.” The record showed that the defendant was actually accused of possessing two cocaine rocks and did not show upon which rock the jury founded the conviction on the count for possession for sale. The court concludes the conviction on multiple counts was proper because the applicable test — whether the statutory elements of the greater offense include all of the statutory elements of…
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CALCRIM No. 226 Survives Appellate Challenge
In People v. Wamer, case no. F051027 (5th Dist. Sept. 12, 2007), the Court of Appeal holds that CALCRIM No. 226 does not impermissibly lighten the prosecutor’s burden of proof. Wamer, convicted of murder, contended that the last paragraph of the instruction lightened the prosecutor’s burden by its use of the words in bold italics in the below excerpt (emphasis added), the last paragraph of the instruction: If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept…
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Mother Ordered to In-Patient Drug Rehabilitation has Standing to Appeal, but Her Kids Don’t
The mother of three minor children is determined to be incapable of providing regular care and supervision for them. (Welf. & Inst. Code, § 300.) The children are placed with their maternal grandmother, with supervised visits from the mother. The juvenile court orders the mother to complete an in-patient drug treatment program as part of the disposition care plan of Austin women’s drug and alcohol treatment, and leaves all prior orders in effect, including the children’s placement and supervised visits from the mother. Do the children have standing to appeal? In In re Neil D., case no. B195487 (2d Dist. August 28, 2007, ordered published Sept. 17, 2007), the Court…
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You Might Be an Appellate Lawyer and Not Even Know it
At least, that’s one lesson you can take away from Lee v. Blue Shield of California, case no. B190441 (2d Dist. Sept. 7, 2007). Lee alleged that Blue Shield wrongfully suspended him from its network of medical providers for medical incompetence and then illegally terminated his provider contract for failing to cooperate in the administrative process. His suit alleged tort, contract, and declaratory relief theories. The trial court sustained a demurrer brought on the ground that Lee did not exhaust his administrative remedies because the hearing process (commonly called an “809 hearing” because it is set out at Business and Professions Code sections 809-809.9) was terminated by Blue Shield for…
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Attorneys Can Bind Parties to Change of Jurisdiction under UIFSA
Is a stipulation to a change of jurisdiction from another state to California under the Uniform Interstate Family Support Act effective if it is signed only by the parties’ attorneys and not by the parties themselves? In Knabe v. Brister, case no. C053225 (3d Dist. Sept. 6, 2007), the Court of Appeal says it is. Family Code section 4960, subdivision (a)(2), part of California’s implementation of the UIFSA, requires (among other things) that before a California court can modify a child support order issued in another state, “all of the parties who are individuals have filed written consents in the issuing tribunal for a tribunal of this state to modify…
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Challenging Voidable Judgments
A short lesson in the difference between void judgments and valid but voidable ones is provided in Baron v. Fire Insurance Exchange, case no. H029830 (6th Dist. Sept. 4, 2007). While I think the court’s decision not to avoid the “valid but voidable” order in this case is the correct one, I am a bit surprised by its rationale. Two partners to a venture concerning the insured real property arbitrated a dispute between them. During the arbitration, the property suffered a fire. The insured partner submitted an insurance claim, and the arbitration award included the appointment of a receiver to take possession of the property and any insurance proceeds, including settlement proceeds from…
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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,…
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Mootness Requires Loss of Existing Controversy, Not Alternate Forum for Resolution of Issues on Appeal
“The ground has shifted considerably since the Marlins filed their original complaint for a declaration of rights.” If that sounds to you like a court about to examine whether that shifting ground has mooted the appeal, then you have a good ear. In Marlin v. AIMCO Venezia, case no. B188407 (2d Dist. August 16, 2007), tenants (or “Marlins”) filed a declaratory judgment action against their landlord for a declaration of their respective rights under the Ellis Act, which allows “landlords who comply with its terms to go out of the rental business by evicting their tenants and withdrawing all units from the market even if doing so would otherwise violate…
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Nonsuit after Opening Statement in Bench Trial
Lingenfelter v. County of Fresno, case no. F005021 (5th Dist. August 16, 2007) unknots a sticky procedural question: In the published portion of this opinion, we hold that a motion for nonsuit, pursuant to Code of Civil Procedure section 581c, subdivision (a), does lie in a trial by the court. We publish on this issue because the disagreement of our concurring colleague demonstrates that there is a conflict of authority. More specifically, the court holds that nonsuit is available in a bench trial immediately after the close of plaintiff’s opening statement. The court’s exercise in statutory interpretation of Section 581c is detailed. It examines not only Section 581c, but also…
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How Does a Court Write a Trade Secrets Opinion When It Can’t Disclose the Trade Secrets?
That was the difficult question facing the court in Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826. An excerpt from the opening paragraph of the opinion gives you an idea of the substantive issues facing the court (emphasis added): We hold that Code of Civil Procedure section 2019.210 (formerly Code of Civil Procedure section 2019, subdivision (d)), which provides that discovery relating to a trade secret may not commence until the trade secret is identified with “reasonable particularity,” is not limited in its application to a cause of action under the Uniform Trade Secrets Act (UTSA) (Civ. Code, §§ 3426-3426.11), for misappropriation of the trade secret, but…
- Appellate Procedure, California Procedure, California Supreme Court, Federal Courts, Federal Procedure, Ninth Circuit, Standard of Review
Adult Bookstore Case Results in Certified Question to State Supreme Court
Under rule 8.548(a), California Rules of Court, a Federal Court of Appeals, the U.S. Supreme Court, or the court of last resort of another state may ask the California Supreme Court to answer a question of California law where “(1) The decision could determine the outcome of a matter pending in the requesting court; and (2) There is no controlling precedent.” Most lawyers are already familiar with this procedure, at least in principle. What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026 (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to…
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Court of Appeal Adopts Abuse of Discreton Standard for Review of Family Code Section 2107 Sanctions Award
In Marriage of Feldman, case no. D047896 (4th Dist. July 20, 2007, certified for publication August 7, 2007), the Court of Appeal upholds a whopping $250,000 in sanctions and $140,000 in attorney fees against a husband who failed to disclose material assets in the course of divorce proceedings. The sanctions were awarded pursuant to Family Code section 2107, subdivision (c) and Family Code section 271, subdivision (a). Section 271 sanction orders are reviewed for abuse of discretion, but the court had no precedent for the standard of review to apply to awards under Section 2107, subdivision (c). The court determines that abuse of discretion applies here as well, since “the…
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No Substitute for Certificate of Probable Cause to Appeal from Order on Bifurcated Family Law Issue
Dissolution matters are often bifurcated. Ordinarily, a party must await final judgment before appealing. However, Family Code section 2025 provides a means of appealing an order on a bifurcated issue in the appropriate circumstance: “Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. Certification by the court shall be in accordance with rules promulgated by the Judicial…
- 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…
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Appeals from Bifurcated Actions — and Writing about the Issue Well
In Kinney v. Overton, case no. G037146 (July 17, 2007), Justice Moore of the Fourth District Court of Appeal uses a “slay the dragon” metaphor to describe the limitations of review of judgments arising from bifurcated portions of a larger case (footnote and citations omitted): A residential subdivision in Laguna Beach is plagued with litigation involving a morass of legal issues and a plethora of parties — both public and private. The litigation was commenced by Three Arch Bay District against the City of Laguna Beach, Charles Kinney (Kinney) and numerous other parties. Kinney, a homeowner in the subdivision and a lawyer, filed a cross-complaint and a number of amended…
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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…
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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…
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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…
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California Supremes on the Right to Rehearing on Unbriefed Issues
When is a party entitled to a rehearing from the Court of Appeal? One such case — where the decision is based on an issue the parties did not have an opportunity to brief — is codified at Government Code section 68081: Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. …
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New Judicial Council Forms Effective July 1, 2007
New and revised Judicial Council forms became effective on July 1, 2007. The list of new and revised forms is here. All of the Judicial Council forms are available for download here.
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Raiders Lose on Independent Review of Order Granting New Trial
Congratulations! The court has granted your motion for a new trial! Now, just pray the trial judge doesn’t screw it up. Yesterday’s Supreme Court opinion in The Oakland Raiders v. National Football League, case no. S132814 (July 2, 2007) demonstrates again that no winner of a new trial can have confidence in the order granting the new trial unless the court specifies its reasons in the order or files its specification of reasons within 10 days of the order, as required by Code of Civil Procedure section 657. In this case, the court’s failure to specify its reasons results in a different standard of review on appeal that effectively shifts…
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An Arbitrator with Chutzpah
It takes some cheek for an arbitrator to reform a collective bargaining memorandum of understanding (“MOU”) between a state agency and an employee bargaining unit when the MOU has already been approved by the legislature pursuant to the Dills Act. And its reversible error, of course. In Dept. of Personnel Administration v. Calif. Correctional Peace Officers Assn., case no. C051636 (June 29, 2007), the Third District Court of Appeal affirms the trial court’s order vacating the arbitration award. Such employment agreements must be submitted to and approved by the legislature. By reforming the agreement to conform to her findings regarding the parties’ intent, thus changing the provisions approved by the…
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Confusing Jurisdiction with Forum Selection
It’s common to see forum selection clauses in contracts. It’s also common to see such clauses purport to limit “jurisdiction” to the courts of a given state or even a specific county within the state. Nice try. No matter the skill of the lawyers, parties simply cannot strip a court of subject matter jurisdiction by private agreement, as we are reminded by the Third District Court of Appeal in Miller-Leigh, LLC v. Henson, case no. C051652 (June 28, 2007). The parties to a lease guaranty for leased property in Arizona included a provision stating that the guaranty was governed by Arizona law and that “Arizona is the proper jurisdiction for…
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Exclusionary Rule Beats the Criminal Rap — but not the Administrative One
A driver driving his own car is pulled over by a police officer who, because of outdated police records, believes the car is stolen. While detaining the driver during the check on the ownership of the vehicle, the officer notes signs of drinking and the driver admits to having been drinking. He is arrested and later blows a 0.12 breathalyzer. In his criminal prosecution, he moves to suppress all evidence obtained or seized in connection with the traffic stop. Easy call. Case dismissed. When the DMV holds an administrative review of his driving privileges, the driver makes the same motion. Denied, and driver’s license is suspended for a year. The…
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Another Premature Appeal Saved — Should it Be?
The Appellate Practitioner brings to our attention the Sixth District Court of Appeal’s decision in Sisemore v. Master Financial, Inc., case no. H029138 (June 12, 2007), in which the court “saves” a premature appeal. Sisemore appealed from an order sustaining a demurrer to her complaint without leave to amend. The court saves the premature appeal by construing the order to incorporate a judgment of dismissal. This is an accepted practice. Might this practice be challenged someday? It wouldn’t be the first time the California Supreme Court has been called upon to review the appropriateness of “saving” an appeal.
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Prop. 64 Knocks Out Unfair Competition Plaintiff Initially on Standing; Insufficient Substantive Allegations Finish Him Off
In Schulz v. Neovi Data Corp., case no. G033879 (June 15, 2007), a decision following remand from the California Supreme Court, the Fourth District Court of Appeal tackles the issue of whether plaintiff can amend his complaint to state a cause of action against online payment services Neovi, PayPal, Inc., PaySystems, Inc., and Ginix, Inc. for abetting an alleged unlawful “matrix scheme” run by EZExpo.com by allowing their payment services to be used by participants to make payments into the scheme. (This Wikipedia entry gives more background on matrix schemes and claims that EZExpo.com is widely believed to be the first such known scheme. The decision itself also describes the…