• Appellate Jurisdiction,  Appellate Procedure,  Criminal Procedure,  Jurisdiction,  Prop 47 Reductions,  Wende Review

    Third District Court of Appeal creates a “quagmire” regarding Prop 47 sentence reductions

    September 30, 2015

    You don’t have to take my word for it. The court uses the word “quagmire” in yesterday’s decision in People v. Scarbrough, case no. C075414 (3d. Dist. Sept. 29, 2015), in which it holds that a trial court lacks jurisdiction to recall and reduce sentences under Proposition 47 when the judgment for those crimes is on appeal. First, a brief reminder of what the California electorate voted into law last November. Prop 47 reclassifies certain crimes from felonies to misdemeanors and provides that persons convicted of felonies that are now classified as misdemeanors may “petition for a recall of sentence” to request resentencing under the new standards. You can imagine there are quite…

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  • Criminal Procedure,  Dismissal (Criminal),  Jurisdiction

    The implications on appeal of “clarified” trial court orders

    September 29, 2015

    It drives me crazy when an adverse party asks the trial court to “clarify” a recent ruling. Too often, such a request is not a request for clarification at all, but instead an effort to expand the scope of the order or otherwise change its meaning. Funny how these requests for “clarification” are brought up after an attorney realizes he neglected to make an argument, ask for a specific form of relief, or prejudiced his client’s interest by an admission in court. Such was the case in In re Christopher B., case no. C077467 (3rd Dist. Sept. 28, 2015), a “Murphy conservatorship” proceeding. (Welf. &  Inst. Code, §§ 5000, et seq., 5008, subd. (h)(1)(B), 5361;…

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  • Jurisdiction,  New Trials

    The deadline for filing the memorandum and affidavits in support of a motion for new trial is not jurisdictional

    July 10, 2015

    Some parties try to make jurisdictional issues out of non-jurisdictional ones. You can hardly blame them, given the fatal nature of jurisdictional defects. One recent attempt — but ultimately an unsuccessful one — was in Kabran v. Sharp Memorial Hospital (2015) 236 Cal.App.4th 1294, in which the appellant (Sharp) claimed that the trial court lacked jurisdiction to grant a new trial. That’s a somewhat surprising contention, seeing as how the respondent timely filed her notice of intention to move for a new trial (Code Civ. Proc., § 659, subd. (a)) and the court granted the motion within the 60-day jurisdictional deadline (Code Civ. Proc., § 660) on a ground stated in…

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  • Appellate Procedure,  Dismissal,  Jurisdiction,  Sanctions

    How the nature of your appellate challenge can affect whether your appeal is dismissed for failure to obey trial court orders

    June 30, 2015

    The disentitlement doctrine allows a court of appeal to dismiss an appeal as a sanction for the appellant’s refusal to comply with trial court orders that remain in force while the appeal is pending. The lesson to be learned from today’s decision in Ironridge Global IV, Ltd. v. ScripsAmerica, Inc., case no. B256198 (2d Dist., June 30, 2015) comes from its discussion of how the right kind of appellate challenge to a trial court order — specifically, a jurisdictional challenge — can serve as a defense to the imposition of a dismissal sanction under the disentitlement doctrine. Unfortunately for the defendant-appellant in Ironbridge, calling a challenge a jurisdictional one does not…

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  • Jurisdiction

    The Court of Appeal and the Supreme Court as courts of first resort?

    June 4, 2014

    Well, this is unusual. We usually refer to the Court of Appeal and Supreme Court as “reviewing courts” because they review the decisions of lower courts. But yesterday’s decision in Disenhouse v. Peevey, case no. D063799 (4th Dist. June 3, 2014) discloses a rare instance in which either of these courts is the court of first resort. The Public Utilities Commission allegedly refused to allow the plaintiff to attend a commission meeting because of plaintiff’s affiliation with the Sierra Club. She sued in superior court to enjoin the meeting, on the ground that her exclusion violated the Bagley-Keene Open Meeting Act, then filed an ex parte application for a mandatory…

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  • Appellate Jurisdiction,  Jurisdiction

    Fee-shifting on appeal from Berman Hearing is not applicable in dismissal for untimely appeal

    July 31, 2012

    I haven’t written about procedure on appeal from a “Berman hearing” — a wage claim heard by the Labor Commissioner — in a long time. Last Friday’s case of Arias v. Kardoulias, case no. B234263 (2d. Dist. July 27, 2012), gives me the opportunity to do so again because of the procedural question it raises, and also provides an opportunity to point out that not all appeals are the same. You’ve read time and time again on this blog that appeals are very different from trials, but an appeal from a Berman hearing is not. An appeal from a Berman hearing is a trial, heard by the superior court (trial…

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  • Jurisdiction

    Service of Summons via Social Media

    April 8, 2009

    Sometimes, a defendant manages to dodge service of summons quite skillfully.  A colleague of mine once resorted to serving a  defendant with summons at the defendant’s daughter’s wedding because the defendant had successfully dodged many prior service attempts. Now, an Australian court has authorized service of summons by notifying the defendant via Facebook (sidebar note at p. 10 of this PDF). And why not? If it hasn’t already happened here, it probably will eventually. California law (Code Civ. Proc., § 415.50) already allows for service of summons by publication in newspapers in certain cases when a plaintiff shows that “the party to be served cannot with reasonable diligence be served in another…

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  • Jurisdiction

    In re B.S.

    March 18, 2009

    I know the title of this post implies that you’re about to read some complaint about an illogical decision.  After all, I doubt there’s a litigator alive who hasn’t received an adverse ruling or verdict and thought, “What a load of B.S.!”  (By the way, if you ever do feel that way, it’s time to call me.)  And that’s the way I was going to write this post, until I looked at the substance of the decision and got hooked, as I usually do, by a jurisdictional question. In re B.S., case no. E045748 (4th Dist. Mar. 17, 2009) is a case of alleged jurisdictional conflict between two divisions of a superior…

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  • Jurisdiction,  Legal Writing

    Judicial Opinion Shortcuts: Skipping the Substance of the Argument

    October 2, 2008

    Sometimes, a judicial opinion leaves you wondering what a party contended on appeal.  That’s always a little frustrating.  OK, not always, but when it involves a pet interest (in my case, jurisdiction), it leaves one wanting more. Such is the case with White v. Mayflower Transit, case no. 07-55528 (9th Cir. Sept. 12, 2008), in which the court writes that the pro se appellant contended that the district court lacked removal jurisdiction over the case.  But they don’t explain the substance of the appellant’s argument.  They merely explain how the facts of the case demonstrate the applicability of a federal statute that grants exclusive jurisdiction to the federal courts.  Pretty cut-and-dried. Why…

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  • Appellate Jurisdiction,  Appellate Procedure,  California Procedure,  Jurisdiction

    Flexibility on Appellate Jurisdiction

    August 5, 2008

    “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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  • California Procedure,  Jurisdiction

    Producer’s Lawsuit Crashes

    March 26, 2008

    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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  • ADR,  Jurisdiction

    Federal Question Jurisdiction and the Federal Arbitration Act

    March 26, 2008

    Anyone who reads this blog regularly knows I am a jurisdiction geek, so a post about Federal Question Jurisdiction and the Federal Arbitration Act at Civil Procedure Prof Blog caught my eye. The post links to an article on the topic at Social Science Research Network (SSRN). UPDATE (3/26/08):  Texas Appellate Law Blog has an interesting post up on the related issue of whether parties can contract for judicial review of arbitration decisions under the FAA.

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  • California Procedure,  Judgment,  Jurisdiction

    O.J.’s Jurisdictional Challenge Goes Nowhere

    February 21, 2008

    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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  • Federal Procedure,  Jurisdiction,  Waiver of Issues

    Process Serving Gamesmanship

    December 12, 2007

    It sometimes surprises me that in this information age, we are still required to make personal service of sumons. But, absent special circumstances, we are.  Even when the defendant is overseas. Which was the situation in SEC v. Shaw, case no. 06-15204 (9th Cir. Dec. 11, 2007). The SEC had summons personally served on Shaw in England. Shaw defaulted, then waited more than three years to move to set aside the default judgment on the ground of lack of personal jurisdiction. The Ninth holds that a defendant with actual notice of the proceedings, as Shaw had, bears the burden of proving he was not served with summons. Shaw can’t make…

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  • Appellate Procedure,  Jurisdiction,  Waiver of Issues

    Failure to Exhaust Administrative Remedies is a Waivable Defense

    November 27, 2007

    At first glance, it might appear that the Court of Appeal in Mokler v. County of Orange, case no. G036029 (4th Dist. Nov. 26, 2007) did the unthinkable: hold that a defendant had waived a jurisdictional defect. Not so fast. The fact of the matter is that not all jurisdictional defects are created equally. Mokler provides a fairly good discussion of the difference between acts in the absence of fundamental jurisdiction — that is, acting in the absence of power to preside over the case — and acts in excess of jurisdiction, in which a court that has fundamental jurisdiction violates a restriction on the manner in which it can…

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  • Appellate Jurisdiction,  Appellate Procedure,  Federal Courts,  Federal Procedure,  Jurisdiction

    Appeal from Non-Appealable Order Does not Deprive District Court of Jurisdiction

    November 26, 2007

    Nasciemento v. Dummer, case no. 06-35062 (9th Cir. Nov. 21, 2007) presents a host of jurisdictional issues in a concise opinion. I recommend you read the entire opinion and will concentrate on just one of the issues here, since most of the principles in the opinion are well-established. Nasciemento purported to appeal from a non-appealable order of the Nevada district court that dismissed some, but not all, defendants and transfered the case to the Montana district court (the “transfer order”). After his appeal was dismissed, but nine days before the mandate issued, the Montana district court entered a discovery scheduling order. When the Montana court refused to extend time for…

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  • California Procedure,  Judgment,  Judgment,  Jurisdiction,  Summary Judgment,  Summary Judgment

    Potentially Void Judgment Reversed on the Merits

    November 19, 2007

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

    Not Every Procedural Error is Jurisdictional

    November 16, 2007

    I know that sounds self-evident. But a jurisdictional challenge is your last hope on appeal if you’re relying on procedural irregularities that you let pass without objection. That’s because a jurisdictional defect can be raised any time in the course of the proceedings, so a party on appeal does not have to worry about having waived it. But the appellant in In re Angel S., case no. C054446 (3d Dist. Oct. 23, 2007, modified and ordered published Nov. 13, 2007) isn’t able to pull it off. The appellant in Angel S. had her probate guardianship of her 2-year-old great niece terminated after the girl suffered severe head injuries in appellant’s…

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  • Jurisdiction

    Jurisdiction Not Interesting?

    October 17, 2007

    Professor Martin at California Appellate Report lauds Judge Bybee for his opinion in SEC v. Ross, case no. 05-35541 (9th Cir.  Oct. 15, 2007): It’s an erudite, comprehensive, and incredibly good opinion.  On a subject (here, jurisdiction and service of process) that’s nowhere near inherently exciting. Nowhere near inherently exciting?  Huh?  Then again, my favorite first-year law school class was Civil Procedure, so I’ve been a bit odd from the beginning. That said, I’m too busy at the moment to read this lengthy decision.  But I skimmed it, and here’s the first thing that jumped out at me:  Bustos, a pro se appellant, beats Allen Matkins and the SEC and…

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  • Appellate Procedure,  Federal Procedure,  Jurisdiction,  Notice of Appeal

    FRAP 4(a)(7)’s 150-day Period Sets Time of Entry of Judgment, not Time to Appeal

    September 20, 2007

    Sometimes, the rules seem rather tangled.  But go through them slowly, and they usually  all “come together.” Such is the case in Menken v. Emm, case no. 05-164637 (9th Cir. Sept. 19, 2007), in which the appellees argued that the notice of appeal was not timely.  The district court granted a motion to dismiss for lack of personal jurisdiction but never entered a separate order.  The issue thus became when the 30-day deadline for filing the notice of appeal was triggered. The analysis is rather straightforward. The date of entry of a judgment triggers a 30-day deadline to appeal from it.  (Fed. R. App. P. (“FRAP”) 4(a)(1).)  For this purpose,…

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  • Federal Courts,  Jurisdiction

    Ninth Circuit Holds that the Political Question Doctrine is a Jurisdictional Limitation

    September 18, 2007

    The Ninth Circuit holds that the political question inherent in Corrie v. Caterpillar, Inc., case no 05-36210 (9th Cir. Sept. 17, 2007) precludes the exercise of Article III jurisdiction.  Until Corrie, the Ninth Circuit has not clearly decided whether the political question doctrine is a jurisdictional limitation or merely a self-imposed prudential restraint. The court evaluates competing cases on the issue, and even finds that the six factors used in evaluating whether the case concerns a political question, enumerated in  Baker v. Carr, 369 U.S. 186 (1962), are themselves divided into jurisdictional and prudential considerations.  It reconciles this dichotomy by deciding that the doctrine’s prudential concerns can help define the…

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  • California Procedure,  Family Law,  Jurisdiction

    Attorneys Can Bind Parties to Change of Jurisdiction under UIFSA

    September 11, 2007

    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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  • California Procedure,  Judgment,  Jurisdiction

    Challenging Voidable Judgments

    September 5, 2007

    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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  • Constitutional Law,  First Amendment,  Jurisdiction

    Jurisdiction over Church Property Issues

    August 29, 2007

    When does a Southern Baptist church cease to be a Southern Baptist church?  I know that sounds like a set-up, but there’s no punchline here.  It’s a serious question, and it was at the heart of a dispute decided by the a Monterey County Superior Court. In Central Coast Baptist Assn. v. First Baptist Church of Los Lomas, case no. H029958 (6th Dist. August 23, 2007), a reversionary clause in First Baptist’s constitution provided that its assets would pass to Central Coast, a voluntary association of Baptist churches, in the event of a “dissolution or winding up” of First Baptist or if it should “cease to be a Southern Baptist…

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  • California Procedure,  California Supreme Court,  Contracts,  Jurisdiction

    Confusing Jurisdiction with Forum Selection

    June 29, 2007

    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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  • Federal Courts,  Jurisdiction,  Patent

    A Trip Down a “Dark Corridor”

    June 21, 2007

    In Linear Technology Corp v. Applied Materials, Inc., case no. H028343 (June 18, 2007), the Sixth District Court of Appeal offers a primer on determining whether a case is one “arising under any Act of Congress relating to patents” within the meaning of that language in Title 28 United States Code section 1338(a). Linear purchased equipment from the three defendants and was sued for patent infringement by a third party, with whom it settled.  Linear alleged its use of the equipment led to the patent infringement suit and sought indemnity from the sellers by suing them in state court on multiple causes of action.  The superior court dismissed the case…

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  • 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

    May 30, 2007

    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…

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  • Federal Courts,  Jurisdiction,  Ninth Circuit

    Claim Challenging Removal of Cross from County Seal Fails in Ninth Circuit

    May 16, 2007

    In 2004, under legal threat from the American Civil Liberties Union, Los Angeles County removed from its official seal an image of a cross (which shared the seal with the Roman goddess Pamona, engineering instruments, a Spanish galleon, a tuna, a cow, oil derricks, the Hollywood Bowl, and two stars representing the area’s motion picture and television industries).  It replaced the cross with a depiction of the first Spanish mission established in the county (which depiction did not include a cross), and made other changes to the seal.  Plaintiff Ernesto R. Vasquez, an employee of the County of Los Angeles, filed suit in federal court under 42 U.S.C. § 1983,…

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