I Hired an Appellate Specialist, Now What?

The process of pursuing a civil appeal in California can be a bit of a mystery for the first time litigant or trial lawyer.  This post is the first in a series on explaining the process of a civil appeal.  The first and most critical step is to ensure that a proper and timely notice of appeal is filed.

Is the Order Appealable?  Not all judgments and orders are immediately appealable.  Some orders can only be reviewed by way of a statutory writ (such as orders on motions to expunge lis pendens, to disqualify judges and resolving Public Records Act requests).  A crucial and initial step is analyzing whether and how to seek review of the order or judgment, by writ or direct appeal.  If the order disposed of all claims between any two given parties, an appeal may lie.  If there are claims remaining to be litigated between the two parties, such as a pending cross-complaint, a discretionary writ may be the only way to seek review now rather than after entry of a final judgment.

Timing is Everything. In California, the normal deadline to file a notice of appeal is 60 days from when a party or clerk provides notice of entry of judgment. The deadline is jurisdictional. If the deadline is missed there is no right of appeal. Sometimes a different deadline applies if no party or clerk gave notice of entry of judgment or if any party filed a motion for new trial, vacate the judgment, for judgment notwithstanding the verdict or for reconsideration of an appealable order. When an order is entered by the court and you want to challenge it on appeal, consideration must be given as to whether the normal 60 day deadline applies or if one of the exceptions to the rule governs.

The notice of appeal is filed with the trial court along with the appropriate filing fee.  Assuming that the notice is timely and the judgment or order is appealable, the next step in the process is the designation of the record on appeal.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your writ or appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to an appeal in Los Angeles or Orange County, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.

Ninth Circuit Rules that San Diego’s Restrictions on Concealed Weapon Permits are Unconstitutional

Today the Ninth Circuit ruled that “San Diego County’s ‘good cause’ permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.” The case is Peruta v. San Diego (9th Cir. Feb. 13, 2014) 10-56971 and you can read the lengthy opinion here. The opinion was authored by Judge Diarmuid O’Scannlain.

The Court describes California and San Diego’s concealed weapon permit scheme as follows:

In California, the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table. The San Diego County policy specifies that concern for “one’s personal safety alone” does not satisfy the “good cause” requirement for issuance of a permit. Instead, an applicant must demonstrate that he suffers a unique risk of harm: he must show “a set of circumstances that distinguish [him] from the mainstream and cause[] him . . . to be placed in harm’s way.” Given this requirement, the “typical” responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense; a typical citizen fearing for his “personal safety”—by definition—cannot “distinguish [himself] from the mainstream.”

The Court then took a very detailed, historical review of what the right to “bear” arms meant in the context of the Second Amendment. The Court then concluded that restricting concealed weapon permits to those persons who can affirmatively establish “good cause” and denying permits to citizens who only have a generalized concern for one’s own safety infringes on the Second Amendment.

Before concluding its 77-page decision, the Ninth Circuit observed:

We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions. Nonetheless, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. . . . Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court [or ours] to pronounce the Second Amendment extinct.”

This opinion will hardly be the last word on the subject. The decision can be reviewed en banc by entire Ninth Circuit. The decision also sets up a conflict among different circuits and the United States Supreme Court may have to resolve the circuit conflict at some point.

Four Things Every Trial Lawyer Should Know About Civil Writs

This post is the sixth in an ongoing series about maximizing a party’s chances of prevailing on appeal. A frequently asked question by trial lawyers is whether and when to seek review of a trial court order by way of a petition for writ of mandate or prohibition (“writ”) instead of a direct appeal following entry of judgment. Here are four things every trial lawyer should know about filing civil writs in California’s courts of appeal:

1.   Sometimes writs are the only way of securing appellate review of an order.  Certain orders are only reviewed by way of a writ. The failure to file a writ will preclude appellate review after the judgment. Four

Ninth Circuit extends First Amendment protection to bloggers

Today the Ninth Circuit issued its opinion in Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014).  The decision extended to bloggers the same First Amendment protections that are afforded to traditional journalists.  From the opinion:

This case requires us to address a question of first impression: What First Amendment protections are afforded a blogger sued for defamation? We hold that liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages.

The Ninth Circuit found that attempts to distinguish between bloggers and traditional media outlets for purposes of defamation liability were “unworkable”:

In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the First Amendment touchstones

This case represents an important expansion of protection for persons who use the internet to communicate, report news and express opinions.  Defamation liability will not be imposed absent some showing of intent and actual damages, the same legal standards governing defamation actions against traditional journalists.

(Hat Tip to Ben Shatz at Southern California Appellate News).

How to lose your appeal before it starts

This post is the fifth in an ongoing series about maximizing a party’s chances of prevailing on appeal.  Filing a proper and timely notice of appeal is the first important task in the appellate process.  Once a notice of appeal is filed but before the appellate briefs are written, a critical task is to designate the record on appeal.  That is to say, the parties must decide which documents that were filed in the trial court and/or which reporter’s transcripts should be included as part of the record that the appellate court will receive along with the briefs.  If a document or transcript is not included in the appellate record, the appellate justices will not consider it (subject to rare exception).  If the appellant omits key documents, the respondent must counter-designate the missing documents or the respondent may be foreclosed from making certain arguments on appeal.  In some cases, omitting a document may prove fatal to your appeal.  The decision as to which documents to include in the record occurs several months or sometimes years before briefs are written and arguments are honed.  It is crucial to give the record designation task thoughtful consideration or the appeal will be over before it starts.

Two unpublished decisions today issued by the Second District Court of Appeal in Los Angeles are instructive as to the importance of the record designation phase of an appeal.  First, in an opinion by Presiding Justice Tricia A. Bigelow writing for Division Eight the court emphasized the importance of providing an adequate record of what transpired at trial.  In Bova v. Wicks (Jan. 6, 2014 B243064) the plaintiff asserted a claim for nondisclosure in the sale of real property.  The defendants lost following a bench trial.  Notably, there was no court reporter transcribing the trial.  The Los Angeles Superior Court no longer provides court reporters for civil matters and if the parties do not pre-arrange for the presence of a privately paid for reporter, no transcript can be prepared.  The defendants appealed the decision and argued that there was no substantial evidence to support the judgment.  The appellant did not include a reporter’s transcript on appeal.  Nor did the appellant proceed by way of an agreed statement under Rule 8.134 or settled statement under Rule 8.135.  Either an agreed statement or settled statement would have provided the appellate court with some summary of the testimony presented at trial as an alternative to a reporter’s transcript.  In light of the absence of any record of the testimony provided at trial, it was inevitable that the appeal would result in affirmance of the judgment:

Non-appealability clauses eliminating all federal court review of arbitration awards held unenforceable

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I generally advise most clients under most circumstances to avoid arbitration clauses.  Over the long run, they do not deliver on the promise of streamlined, cost effective litigation.  (I once had an arbitration last a total of 47 days over two years).  Unless confidentiality is an issue, a party is usually better served in the courts.  Moreover, the right to appeal the outcome of trial is a valuable right not available in arbitration.  The merits of an arbitration award are not reviewed by an appellate tribunal, except where the ADR provider has a built-in, previously agreed on appellate procedure.  (The AAA recently announced such appellate procedures).  That said, there are limited grounds for appealing an arbitration, not related to the merits of the award.  Under both California and federal law, an arbitration award can be vacated by a court (or thereafter appealed) if the award was the result of extrinsic fraud or corruption or where the award clearly exceeded the scope of the arbitrator’s power.

Today, the Ninth Circuit considered a matter of first impression: is a provision in an arbitration agreement that eliminates all judicial review of the arbitration award, including review for fraud or excess of power, enforceable?  In an opinion authored by Judge Milan D. Smith, Jr., the Ninth Circuit ruled such a clause is not enforceable. In re Wal-Mart Wage and Hour Employment Practices Litigation (9th Cir. Dec. 17, 2013 11-17718) involved in a dispute over an attorney’s fee award among counsel for the plaintiffs in a class action settlement.  An arbitrator allotted attorney’s fees among the plaintiffs’ counsel, a district court confirmed the allocation and one of the attorneys appealed that order.  The appellee contended that the Ninth Circuit lacked jurisdiction to hear the appeal because the parties’ settlement agreement precluded any judicial review of the arbitration award.  Ultimately, the Ninth Circuit held that in enacting the Federal Arbitration Act, Congress intended to balance the policy favoring arbitration with the need to safeguard against arbitration awards “tainted by partiality, a lack of elementary procedural fairness, corruption, or similar misconduct.”  The Ninth Circuit ruled that a party may not contract away or waive the right to judicial review of arbitration awards.  This decision reaffirms the right of parties to a minimal standard of fairness in the conduct of arbitrations.  However, parties’ interested in retaining the right to appellate review of the merits of their dispute should seriously consider avoiding arbitration clauses altogether.

Justice Rubin Tackles the Amorphous “Abuse of Discretion” Standard

Today, Division Eight of the Second Appellate District of California issued its decision in Gaines v. Fidelity National Title Insurance Company (Dec. 12, 2013 B244961).  The case involved the dismissal of a fraud case in the context of a sale of a home.  On appeal, the court reviewed the dismissal for failure to bring the matter to trial within five years as required by Code of Civil Procedure, section 583.310 and 583.360.3.  The decision is most notable for its dissent by Associate Justice Laurence D. Rubin.  The majority voted to affirm the dismissal as to all but one of the defendants.  In his dissent, Justice Rubin concluded:

In my view the dismissal of this lawsuit under the circumstances described defeats the substantial ends of justice. Instead, it rewards parties who, it would appear, have played a major and unlawful role in the theft of someone’s home.

To reach this conclusion, Justice Rubin thoroughly discussed and lamented the unworkable “abuse of discretion” standard of review employed by California appellate courts.  After discussing the various formulations of the rule, including the common formulation defining abuse of discretion as trial court orders that are “arbitrary, capricious or whimsical,” Justice Rubin observes:

The colorful “whimsical, capricious, arbitrary” standard proves the point. I am doubtful that any judge in our state has made a ruling out of whimsy or caprice. Whim, for example, is “a capricious or eccentric and often sudden idea or turn of the mind.” (Merriam-Webster, Electronic Edition [2013, http://www.merriam-webster.com/dictionary/whim%5D [as of December 5, 2013].) This does not describe judicial decision making. If we are truly engaging in appellate review to weed out the whimsical or capricious decision, I doubt we would ever find abuse of discretion. Labeling a trial judge arbitrary is so pejorative, appellate judges would almost always be adverse to finding abuse of discretion under that standard. Describing a trial court decision “as an act exceeding all bounds of reason” or “patently absurd” is also inherently inflammatory.

Justice Rubin concludes that the abuse of discretion standard should be applied using a “deference continuum” discussed by now retired Associate Justice Howard B. Weiner in Hurtado v. Statewide Home Loan Co. (1985) 167 Cal. App. 3d 1019.  Under that formulation, discretion is viewed in terms of how much deference appellate courts are to give trial courts.  Great deference should be granted in areas involving factual determinations or where a trial judge’s position in the courtroom gives the judge a superior opportunity to get “the feel of the case.”  Justice Rubin than opines that applying the abuse of discretion standard using Justice Weiner’s “deference continuum” should be moderated  “in conformity with the spirit of the law” and used in a manner that does not “defeat the ends of substantial justice.”

Justice Rubin’s deference-focused approach is enticing and, at first blush, seems more useful for appellate practitioners to employ in their advocacy and for justices to use in their opinion writing.  However, as one observer notes here, advocating to an appellate court that an outcome should be reversed because the trial court defeated “the ends of substantial justice” may prove no more persuasive than advocating reversal because the trial court “abused its discretion.”  The search for a useful, objective application of the “abuse of discretion” standard continues…

Why Appellate Procedural Rules Matter

(Photo credit: Wikipedia)

This post is the fourth in an ongoing series about maximizing a party’s chances of prevailing on appeal.  The unpublished decision by the Third Appellate District in Martel v. Litchfield (Dec. 4, 2013 C068425) provides four glaring examples of how violating procedural appellate rules can affect the outcome of an appeal.  In Martel, the court of appeal reviewed the dismissal of a lawsuit for intentional infliction of emotional distress.  The facts of the case were a little convoluted.  

Contrasting the Torts of Malicious Prosecution and Abuse of Process

The related torts of malicious prosecution and abuse of process both vindicate the important personal rights to be free from unwarranted or abusive litigation tactics.  There are some important distinctions in the elements of each claim:

The common law tort of malicious prosecution originated as a remedy for an individual who had been subjected to a maliciously instituted criminal charge, but in California, as in most common law jurisdictions, the tort was long ago extended to afford a remedy for the malicious prosecution of a civil action. (Citations). Under the governing authorities, in order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate “that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].”

(Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871)

Section 128.7 Sanctions Not Available Following Arbitration

When a client has obtained a defense verdict, judgment or arbitration award, they will frequently ask what recourse they have to recover attorney’s fees and costs obtained in defending against the claims.  In California, costs are awarded to the prevailing party as a matter of right.  (Code Civ. Proc., § 1032 subd. (c).) Attorney’s fees are awardable if allowed by contract or statute.  (Code Civ. Proc, § 1033.5 subd. (a)(10).) If no contract or statute provides for a fee award, a party might seek lesser used remedies such as the tort of malicious prosecution or a request for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure or California Code of Civil Procedure, section 128.7.

These two lesser used remedies are no longer viable options following contractual arbitration.  Malicious prosecution claims will not lie from a contractual arbitration.  (Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 314).  Today, in an opinion authored by Associate Justice Miguel Márquez, the Sixth Appellate District Court of Appeal also closed the door to seeking Section 128.7 sanctions following an arbitration.  In Optimal Markets, Inc.v . Salant (Nov. 26, 2013 H038571), a prevailing defendant in a binding contractual arbitration, following confirmation of the arbitration award, sought sanctions pursuant to Section 128.7.  The trial court denied the award on the ground that they were not authorized by statute.  On appeal, the moving parties argued that:

plaintiff’s attorneys, in advancing frivolous claims in the binding arbitration on behalf of their clients, advocated a meritless complaint before the court within the meaning of…section 128.7, thereby warranting the imposition of sanctions under that statute.

The Optimal Markets, Inc. court rejected this argument on appeal finding that a trial court has no authority to impose sanctions under section 128.7 for three reasons: