For those of you wondering, yes, this is a resumption of a series of posts I wrote years ago on reluctance to engage appellate counsel. (You can read the whole series here.) I was reviewing that series this morning to develop some marketing ideas, and saw some ideas I want to develop further. My earlier posts cited many reasons that attorneys might not involve appellate counsel, but never really expanded on some of the reasons that clients might not do so. I listed such reasons early in the series, which I repeat here: “I can’t afford an appeal.” “An appellate lawyer will just try to talk me out of making…
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A novelist/academic’s views on persuasive writing
A lawyer in one of my LinkedIn groups alerted the group to an interesting article that gives a non-lawyer’s perspective on persuasive writing. Introducing the article, St. Louis attorney Daniel Schramm notes: When I was a law student, we were taught how “to write like a lawyer.” This article suggests lawyers would be better served if they follow the modern trend to make arguments simple and easy to read. At first, this did not make sense to me. “Writing like a lawyer” and “simple and easy to read” are not mutually exclusive concepts, and any lawyer who thinks they are is in big trouble. But after reading the article, I…
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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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Arbitration appeals part of new AAA rules
Southern California Appellate News reports that the American Arbitration Association has released optional rules that will allow appellate review within the arbitration process for arbitrations conducted under AAA rules. From the AAA press release: AAA President and CEO India Johnson explains that traditionally, an arbitration award is set aside by a court only where narrowly-designed statutory grounds exist. These new rules provide for an appeal within the arbitration process and are consistent with the objective of an expedited, cost-effective and just appellate arbitral process. Ms. Johnson states, “The appellate arbitral panel called for under the new rules applies a standard of review more expansive than that allowed by existing federal…
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A Chief’s-eye view of the California Supreme Court
Today marks the release of an interview-style memoir from former California Supreme Court Chief Justice Ronald George, Chief: The Quest for Justice in California. A front-page article in today’s Los Angeles Times gives you a glimpse into a few themes in the 822-page book. One: a court funding crisis — though not of the same magnitude as the one faced today — was never far off at any given time: When Ronald M. George served as chief justice of California, he pleaded annually with legislators for money to run the courts, warning the loss of funds would compromise justice. But he said he learned that some lawmakers took positions on the budget…
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The limits to switching gears on behalf of a minor on appeal
A pre-teen in a juvenile proceeding has counsel appointed for her in the trial court (the counsel is also appointed as her guardian ad litem). Her counsel argues at the dispositional hearing that the minor’s repeated hospitalizations are due to mother’s refusal to acknowledge the seriousness of the minor’s diabetes diagnosis or appropriately monitor her treatment, and the trial court removes the minor from her mother’s custody. The mother appeals, and appellate counsel is appointed for the minor. The minor did not appeal, and you would think the minor’s position is pretty well solidified at this point, right? Wrong. Or may, “it all depends.” On the appeal In re Felicity…
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Four added to pool of prospective First District Justices
The Recorder reports on three judges Governor Brown has asked to have evaluated for vacancies on the First District Court of Appeal. Brown has asked the State Bar’s Commission on Judicial Nominees Evaluation to vet San Francisco Superior Court Judge Marla Miller, Contra Costa County Superior Court Judge Diana Becton and ACLU staff attorney Linda Lye for openings on the San Francisco-based appellate court. Therese Stewart of the San Francisco city attorney’s office is also being evaluated by the commission. Of course, everything will remain up in the air for a while. Submission of a name to the commission usually indicates serious interest on the governor’s part, though there are…
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The secrets to using humor in the courtroom
There aren’t any. Well, maybe one: don’t do it. (Though, as you’ll see below, not everyone agrees.) On the “don’t do it” side is Litigator Rex. Via a post at Southern California Appellate News, I ran across Litigator Rex’s post counting down “Argument Misdemeanors – Five Ways to ruin your oral argument.” The countdown starts with this no-no: 5. Familiarity or humor. The judges are not your friends, they are an institution. While judges have their own personalities, foibles and attitudes on the bench, the role they play in the system demands a certain level of decorum. Charm, humor, or insouciance rarely work and often irritate the judges. This informality not only comes…
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Some appreciation for the appellate courts
The U.S. Chamber of Commerce’s Institute for Legal Reform has released a 158-page report called “The New Lawsuit Ecosystem: Trends, Targets and Players” (which I learned about through a piece at The Recorder giving a detailed summary of the report). The Institute succinctly describes the report this way: This report examines the developing “ecosystem” of the plaintiffs’ bar, including litigation trends, key lawyers and target industries. The report also looks beyond litigation to examine how the plaintiffs’ bar is attempting to influence public policy and implement a liability-expanding agenda. In addition, the report explores the growing alliance between the plaintiffs’ bar and some state attorneys general. What’s all that got to do…
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Judge’s disqualification results in new trial for failure to issue a statement of decision
Appeals based on a trial court’s refusal to issue a statement of decision require some soul searching. Usually, a successful appeal will merely result in the case being remanded to the trial court to issue a statement of decision, and the successful appellant may find himself no better off than he was before. But what if the judge that tried the case is not available to issue the statement of decision? In Wallis v. PHL Associates, Inc., case no. C066545 (3d Dist., October 17, 2013), you will find out. The judge who conducted the bench trial in Wallis was peremptorily disqualified after the bench trial. Since he was thus unavailable to…
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A standard of review that’s a mouthful
Appellate Attorney Jeanne Collachia is both witty and correct with this statement on her website: “Just like there are three things you need to know about real estate, there are three things you need to know about appeals — Standard of Review — Standard of Review — Standard of Review.” Naturally, I have stressed the standard of review too, with many posts at least touching on subtleties in the standard of review or disputes over which standard applies. Determining the applicable standard can sometimes be tricky. Sometimes, multiple standards apply, each applicable to a different stage of reasoning. Now, imagine you’re an accountant representing himself on a writ of administrative…
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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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Supreme Court reverses Kurwa v. Kislinger – there are limits to the manufacture of appellate jurisdiction
Even most non-appellate lawyers are familiar with the “one final judgment rule,” under which a judgment is not appealable unless it disposes of all of the claims between the parties to the appeal. Plaintiffs who have had some (but not all) claims dismissed after a demurrer or summary adjudication either have to defer appellate review of the ruling until the remaining claims have been resolved, or dismiss the remaining claims with prejudice so as to create a judgment that disposes of all claims and is thus appealable. (Of course, the plaintiff also has the option of petitioning for writ relief from the summary adjudication order.) In Kurwa v. Kislinger (2013)…
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Labor Commissioner’s Superior Court action pulls the rug out from under an employer’s writ petition
The recent decision in American Corporate Security, Inc. v. Labor Commissioner, case no. C070504 (3d Dist. Sept. 10, 2013, published Sept. 27, 2013) is an important demonstration of one of the obstacles to writ review of discriminatory discharge decisions of the Labor Commissioner under Labor Code section 98.7, subdivision (e).. When an employer seeks writ review of such a decision, the employer must show that it has “no other plain, speedy and adequate remedy.” That’s what is clearly depicted on the Labor Law Compliance Center federal labor posters distributed all over the country. This is what ACS alleged, having exhausted its route of administrative appeal (the Acting Director of the…
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“Normally, we would begin by . . . ” — departures from the usual analytical framework on appeal
Any time a Court of Appeal decision starts its analysis with “normally,” you should sit up and take notice. It gives you a hint that the case may suggest ways for you to depart slightly from the normal analytical framework when the right case presents itself. This time, the tip comes from Liberty Mutual Ins. Co. v. Brookfield Crystal Cove, LLC, case no. G046731 (4th Dist., August 28, 2013, modified September 26, 2013). The plaintiff was an insurer that sued a contractor in subrogation to recover costs for its insured’s relocation expenses incurred while repairs were being made to property damage resulting from construction defects. The contractor successfully demurred on…
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Some Highlights from the 2013 Court Statistics Report
Would you like to know how busy Court of Appeal justices are? Maybe you’re curious instead about the odds of getting that writ petition you’re considering heard on the merits. Those curious about court statistics have a friend in the Judicial Council of California, which publishes annual statistical reports and has release its 2013 Court Statistics Report: Statewide Caseload Trends 2002–2003 through 2011–2012 (available as a PDF and in an MP3 audio format). The report covers data through the close of fiscal year 2012. (All references to years are to fiscal years.) I finally got a chance to look at it over the weekend, and here are a few of…
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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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Riverside Appeals Court goes 3-for-3 with the Supremes
That’s one of the interesting things you can learn from the chart that accompanies a front page article in yesterday’s Daily Journal. District 4, Division 2, sitting in Riverside, is one of only two divisions to have a perfect record on the review of its decisions by the California Supreme Court in the last twelve months. The other is First District, Division 1, which had only one case reviewed. Three divisions had no decisions reviewed by the Supreme Court in that period. While Division 2 in Riverside was batting a thousand, their Fourth District colleagues in Division 3 (Santa Ana), batted .ooo, getting reversed on all five cases reviewed from…
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When it comes to the anti-SLAPP statute, there’s no such thing as “just a little” criminal extortion
The courts’ application of California’s “anti-SLAPP statute” — Code of Civil Procedure section 425.16 — has been heavily criticized as being too broad. Section 425.16 authorizes a “special motion to strike” one or more causes of action in a complaint. A defendant succeeds on such a motion if he can demonstrate that (1) the suit is a SLAPP — i.e., a Strategic Lawsuit Against Public Participation — because the causes of action are based on free speech on a public issue or on petitioning of the government and (2) that the plaintiff is not likely to prevail in the action. Witkin describes the type of lawsuits section 425.16 was designed…
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Even disobedience of trial courts in other states can get your California appeal dismissed
Last Thursday’s decision in Stoltenberg v. Ampton Investments Inc., case no. B235731 (2d. Dist. April 4, 2013) demonstrates the hazards of being unable to stay enforcement of a money judgment against you while your appeal is pending . . . and how much trouble you can get in for going too far in resisting those enforcement efforts. How much trouble? Well, is having your appeal dismissed enough trouble for ya? Ampton had the misfortune of losing at trial and having a judgment of more than $8 million dollars entered against it. Ampton appealed, but did not post a bond to stay enforcement of the judgment. When the plaintiffs registered the…
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What is the appellate “doghouse,” and why should you care?
No, I’m not talking about that imaginary place that your client puts you in if you lose the case. I’m talking about the mysterious “doghouse” references one sees when looking at the online docket of a California Supreme Court case. Take this snippet from the docket of a recently decided case, which shows that the record reached the Supreme Court on March 18, 2010: Now, it seems rather obvious from the above image that a doghouse is some measure of the volume of the record. And, if you have petitioned the Supreme Court for review, you can guesstimate the size of a doghouse based on how many doghouses the record…
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Don’t get snide on appeal
Snideness is never an attractive trait, but it is distressingly common in trial court. No offense to you trial lawyers out there, but I find snideness far less prevalent in appellate practice, and, on those occasions where it does raise its ugly head, the justices seem far more hostile to it than most trial judges are. Which brings me to a 2009 case that I ran across today, Nazir v. United Airlines (2009) 178 Cal.App.4th 243, in which plaintiff’s counsel, apparently from a solo or small office, squared up against an employment law powerhouse and not only won, but got to see the powerhouse firm spanked by the Court of…
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Bad news for post-conviction indigent appellants: No right to Wende review
A California criminal defendant entitled to appellate counsel appointed by the state has one trick up his sleeve that defendants who hire their own counsel don’t: Wende review. When an appellant’s appointed counsel provides the Court of Appeal with a brief setting forth the substantive and procedural facts and informing the court that counsel has reviewed the record and can find no basis for challenging the judgment, the Court of Appeal must independently review the record for prejudicial error warranting reversal. This process is required in order to assure that the indigent appellant is not deprived of his constitutional right to counsel. But is an indigent appellant with appointed counsel entitled…
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Huge Error, No Prejudice
Too many people go into an appeal so certain that the trial court erred so obviously that reversal must result. This is rarely because the attorney doesn’t know that the error must have resulted in prejudice to warrant reversal, but because the attorney gives insufficient thought to the question of whether the error was genuinely prejudicial. As a result, the question o prejudice is not presented very well in the brief. I’m not sure exactly what was going through the mind of the attorney representing the defendant/appellant in Twenty-Nine Palms Enterprises Corporation v. Bardos, case no. E051769 (Fourth Dist., Nov. 13, 2012). He might have had some very reasonable arguments…
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Fee-shifting on appeal from Berman Hearing is not applicable in dismissal for untimely appeal
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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Attorney fee review standard isn’t always abuse of discretion
Appealing from an attorney fee award is usually a tough slog. Unless you are arguing a pure issue of law, such as whether any attorney fee-shifting statute applies to the case at all, the Court of Appeal usually reviews only for abuse of discretion. However, an important exception is noted in the recent case of Samantha C. v. State Department of Developmental Services, case no. B232649 (2d Dist., Div. 1, June 21, 2012). In Samantha C., attorney fees were sought under the “private attorney general statute,” Code of Civil Procedure section 1021.5, in which plaintiffs who enforce an “an important right affecting the public interest” can recover attorney fees under certain…
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Just what are you appealing from, anyway?
Over at The Ninth Circuit Blog of Appeals, I posted today about an appellant who tried to use a federal appeal from a post-judgment order as a vehicle to attack the underlying judgment, which had been entered five years earlier. On the very same day, the Sixth District published Marriage of Sameer, case no. H035957 (6th Dist., June 19, 2012), in which the appellant tried a similar tactic in California state court. You won’t be shocked to learn it doesn’t work there, either. In February 2008, the court entered a judgment on the stipulation of the parties, in which wife would receive spousal support with scheduled steps down in amount,…
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How to get sanctioned on appeal
The imposition of monetary sanctions on appeal is a rare occurrence . . . you almost have to work at it. If someone were actually trying to get tagged for many thousands of dollars for filing a frivolous appeal, they could learn a lot from Personal Court Reporters, Inc. v. Rand (April 20, 2012, 2nd Dist. case no. B229358). Below is your step-by-step guide to getting sanctioned on appeal. 1. Base your appeal on an argument that goes against all precedent (apparently without any argument for a change in the law). This is a good start, but alone is not likely to get you sanctioned. The court recognizes: Ordinarily, a court…
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Submission to tentative ruling on motion does not forfeit arguments on appeal
For the procedural argument raised by the respondent in Mundy v. Lenc., no. B227962 (2d. Dist. Feb. 29, 2012), I don’t know whether to give the respondent credit for creativity or jeers for an obviously wrong argument. Either way, she lost on the procedural point (but managed to defend on the merits partially in any event). At issue was whether the appellant was barred from challenging the trial court’s orders on two motions, either under the doctrine of invited error or the doctrine of waiver, because the appellant had submitted to the trial court’s tentative ruling on each motion. The Court of Appeal reaches — what is to me, at…