Manatt, Phelps & Phillips, LLP’s Appellate Practice Group presents this year-end survey of notable appellate law opinions issued in 2007 by the Ninth Circuit Court of Appeals, California Supreme Court, and California Courts of Appeal. These opinions, summarized below, provide information and guidance to ensure protection of appeal rights.
Appealability, Timing and Mootness
Nascimento v. Dummer, __ F.3d __, 2007 WL 425311 (9th Cir. Nov. 21, 2007). A notice of appeal from an unappealable order does not transfer jurisdiction to the Court of Appeals and does not divest the district court of jurisdiction to act in the underlying case.
McElmurry v. U.S. Bank National Association, 495 F.3d 1136 (9th Cir. Aug. 8, 2007). An order denying the plaintiffs’ motion to issue notice of a collective action under the Fair Labor Standards Act was not appealable under the collateral order exception. The order was not “effectively unreviewable on appeal from a final judgment.” Unlike a class action, a collective action does not bind others unless they “opt in,” so an erroneous denial of notice to potential plaintiffs would not destroy any rights if not immediately reviewed.
Association of American Physicians & Surgeons v. Brewer, 486 F.3d 586 (9th Cir. May 10, 2007). Appeal challenging the constitutionality of a state election law was dismissed as moot. The appellant had terminated its political action committee and related activities within the state (the subject of the challenged law) following the judgment, purportedly because of the burdens placed on such activities by the statute. Although the appellant asserted that if the law were not in place and if an election of interest occurred, it would reinstate the PAC, that “response is not good enough to keep its claims alive.” The challenged statute did not impact the challenger, and thus the court had no jurisdiction to hear the challenge.
In re Brown (Brown v. Wilshire Credit Corp.), 484 F.3d 1116 (9th Cir. Apr. 26, 2007). An appeal from a bankruptcy court’s rulings on summary judgment motions was not untimely. Although the court signed a minute order indicating that it granted one motion and denied the other, that minute order was not a judgment that triggered the 10-day window to appeal. The matter was properly appealed from the later judgment awarding sanctions and “order[ing], adjudg[ing] and decree[ing] that the plaintiff take nothing by its actions against the defendant.”
Alan v. American Honda Motor Co., 40 Cal. 4th 894 (March 15, 2007). The period for filing a notice of appeal under California Rules of Court, Rule 8.104(a)(1) is triggered when the superior court clerk mails a single document that meets one of the two requirements of the rule: the document either must be entitled “Notice of Entry” of judgment or must be a file-stamped copy of the judgment. Where the clerk mailed in one envelope two documents, neither of which alone satisfied the rule, the 60-day window was not triggered.
Harrington-Wisely v. State of California, __ Cal. App. 4th __, 2007 WL 4105562 (2d Dist., Div. 7, Nov. 20, 2007). The parties’ stipulated judgment entered into for purposes of appeal was not a final judgment, and not appealable. The stipulation did not entirely dispose of all claims between the parties, but rather left “a wide variety” of issues of injunctive and declaratory relief open for the trial court’s resolution.
City of Los Angeles v. Glair, 153 Cal. App. 4th 813 (2d Dist., Div. 7, July 25, 2007). The court dismissed an appeal for lack of jurisdiction. The appeal was untimely with respect to the underlying order. The appeal was timely but improper with respect to the denial of a motion for judgment notwithstanding the verdict, because the motion itself, following a bench trial, was invalid, and as to the denial of a motion for new trial, that order was not appealable. Even if the post-trial motions were construed as a motion to vacate the judgment, the court held such a motion also was not appealable. On the latter issue, the court acknowledged confusion among the appellate courts and suggested that the Supreme Court provide further guidance.
Nguyen v. Superior Court (Nguyen), 150 Cal. App. 4th 1006 (4th Dist., Div. 3, May 14, 2007). The court denied this petition for writ review of a court order following an election contest. A specific statutory scheme (in the Elections Code) provides the losing party an expedited right of appeal, and the factors justifying an extraordinary writ are absent in a challenge to a judgment after an election is over. In addition, the matter benefits by the more deliberative, full-record proceeding of an appeal.
Shah v. McMahon, 148 Cal. App. 4th 526 (2d Dist., Div. 5, March 12, 2007). An order awarding attorneys’ fees following the grant of a motion to expunge lis pendens is not appealable. The specific statute authorizing that fee award is part of a chapter of the Code of Civil Procedure specifying that orders under the chapter are not appealable, but may only be reviewed by writ of mandate sought by a petition filed within 20 days of the notice of entry of order.
Notice of Appeal
Indyway Investment v. Cooper, 2007 WL 1196507 (2d Dist., Div. 3, April 24, 2007) [unpublished]. A trustee may sign a notice of appeal on behalf of a trust, despite the fact that a trust may not appear in propria persona. The rule allowing any person to sign a notice of appeal must be liberally construed. Therefore, the trustee’s signature was simply an act of the trust, not the unauthorized practice of law.
In re Helen W., 150 Cal. App. 4th 71 (4th Dist., Div. 3, April 23, 2007). The court rejected the prevailing rule in juvenile dependency cases wherein a court must question whether an attorney had the client’s authorization to file a notice of appeal. Instead, the court applied the normal presumption that an attorney has authority to represent his client.
Lezama-Carino v. Miller, 149 Cal. App. 4th 55 (6th Dist., March 29, 2007). An appeal is timely when the notice of appeal is timely delivered to the court. The clerk erred in not filing the document until the petition for waiver of fees and costs was determined. While the clerk may have some discretion in refusing to file a notice of appeal, “the only basis to refuse to file a document which has a jurisdictional deadline is where the proposed document fails to comply with California Rules of Court, rule 2.100 et seq. [outlining required form and format for papers to be filed].”
Waiver and Scope of Review
Nitco Holding Co. v. Boujikian, 491 F.3d 1086 (9th Cir. June 25, 2007). A party procedurally defaults on the appeal of a verdict based on insufficiency of the evidence if it fails to do both of two things: move under FRCP 50(a) for judgment as a matter of law, and move under FRCP 50(b) for a judgment notwithstanding the verdict. Where the appellant had taken the first step but not the second, its challenge to the sufficiency of the evidence was waived. Moreover, a challenge to the sufficiency of evidence that is procedurally barred may not be reviewed for plain error.
Steven M. Garber & Associates v. Eskandarian, 150 Cal. App. 4th 813 (2d Dist., Div. 8, April 24, 2007). The court affirmed an award of terminating sanctions for failure to respond to discovery and to comply with court orders compelling responses. The trial court, in granting the sanctions motion, specifically encouraged defendants’ new counsel to seek reconsideration under Code of Civil Procedure Section 473. They failed to file such motion, and instead sought reconsideration based on a variety of meritless arguments. The court noted that “[t]he fact that appellants did not avail themselves of that opportunity [suggested by the trial court] but instead filed a motion for reconsideration that bordered on the frivolous is a further indication that terminating sanctions were justified and appropriate.”
Fladeboe v. American Isuzu Motors Inc., 150 Cal. App. 4th 42 (4th Dist., Div. 3, April 23, 2007). Following a bench trial, a losing party must ask the trial court to issue a statement of decision and must bring to the trial court’s attention any omissions or ambiguities in the statement. If the party fails to do both, the doctrine of implied findings will apply on appeal. The reviewing court will infer that the trial court made every factual finding necessary to support the ruling, and will review those implied findings under the substantial evidence standard.
Standard of Review
Nakamura v. Parker, 156 Cal. App. 4th 337 (1st Dist., Div. 2, Oct. 22, 2007). On review under an abuse of discretion standard, the scope of a trial court’s discretion is measured by the law that the trial court is applying. Thus, where an applicant for a temporary protective order under the Domestic Violence Prevention Act declares under penalty of perjury facts demonstrating the elements of the law, the court abused its discretion in summarily denying the petition.
Amalgamated Bank v. Superior Court (Corinthian Homes), 149 Cal. App. 4th 1003 (3d Dist., April 16, 2007). The court denied a petition for writ of mandate to review the grant of a motion to expunge a lis pendens. Because the issue was one of first impression following a legislative overhaul of the lis pendens statute, the court issued a lengthy and analytical opinion on the standard to apply in determining whether a writ should issue. The court determined that the proper standard was the same as that required in the trial court under the new law: whether a petitioner has shown probable validity of a claim to the property.
Briefs and Record on Appeal
Summers v. Delta Air Lines, Inc., __ F.3d __, 2007 WL ___ (9th Cir. Nov. 27, 2007). A district court may not grant a motion for judgment as a matter of law, pursuant to FRCP 50(a), on a ground not specified in the motion. Nor can a court grant such a motion before the plaintiff has had the opportunity to be fully heard, by presenting all of its evidence on the essential disputed issues. Where the plaintiff was not allowed to present all the relevant evidence – in this case, because the court allowed only an offer of proof by counsel rather than live witness testimony – the record on appeal is insufficient to allow appellate review of the judgment.
Grigorian v. Sarkissian, 2007 WL 2875192 (2d Dist., Div. 5, Oct. 4, 2007) [unpublished]. The trial court’s denial of a motion in limine to exclude certain evidence was affirmed because the record on appeal was insufficient to allow the appellate court to determine what evidence was excluded, what the trial court’s reasoning was, whether a limiting instruction was considered or given, and what prejudice resulted. The absence of a reporter’s transcript of the hearing in a matter involving factual issues or discretionary rulings requires affirmance.
Parker v. Wolters Kluwer United States, Inc., 149 Cal. App. 4th 285 (2d Dist., Div. 7, April 3, 2007). The court ignored all arguments raised in the appellants’ briefs that were not separately briefed but only incorporated by reference from trial court pleadings. This does not satisfy the rule (Cal. R. Ct. 8.204(a)(1)(B)) requiring each point in an appellate brief to be supported by argument and authority. The court noted the ecological advantages of saving paper, but observed that incorporation by reference actually has the opposite effect, as each of the justices on the panel needs his or her own copy of the record or must share the single filed copy.
Costs on Appeal
Azizian v. Federated Department Stores, Inc., 499 F.3d 950 (9th Cir. Aug. 23, 2007). A district court may require an appellant to secure attorneys’ fees on appeal in a bond under Federal Rule of Appellate Procedure 7 only if the fees are available under an applicable fee-shifting statute and the appellee would be eligible to receive such fees. A district court cannot order that attorneys’ fees on appeal be included in a Rule 7 bond on the assumption that the court of appeal will find the appeal frivolous under FRAP 38. Thus, fees could not be included in the bond where they would be available under the Clayton Act’s fee-shifting provision but the appellee, a class member challenging a class settlement, was not entitled to recover fees from another class member. That the appeal might be frivolous was not a basis for the fees to be included.
Other Appellate Law Topics
Carl v. Superior Court (Coast Community College District), __ Cal. App. 4th __, 2007 WL 4126963 (4th Dist., Div. 3, Nov. 21, 2007). The court roundly criticized the practice of filing a “notice of unavailability” of counsel to purport to effectively stay any litigation actions during an attorney’s absence. In summarily denying a writ petition seeking review of a court action that took place during a time that an attorney had notified the court he was unavailable, the court issued a written opinion to make clear that the practice of filing such notices in the appellate courts is unacceptable: "In short, a ‘notice of unavailability’ is not a fileable document under the Rules of Court and will be returned to counsel.”
In re Needles Cases, 148 Cal. App. 4th 489 (6th Dist., March 9, 2007). Following remand for trial or retrial, a party may peremptorily challenge the judge under Code of Civil Procedure Section 170.6. The fact that the matter is part of coordinated trial proceedings does not outweigh the Section 170.6 right. The court noted that the procedural posture of the case did not support the argument that inefficiency and delay would result from a reassignment to a new judge, perhaps implying that a more complex or larger case might justify keeping the same judge.
Yoo v. Jho, 147 Cal. App. 4th 1249 (2d Dist., Div. 3, Feb. 23, 2007). The court of appeal could consider the illegality of the agreement at issue, despite the fact that the issue was not raised below. The trial court should have raised the issue of the contract’s illegality on its own motion, where the evidence at trial placed the illegality before the trial court.
Michael M. Berger Mr. Berger is one of California's preeminent appellate lawyers and is Chair of Manatt's Appellate Practice Group. One of the top land use and condemnation lawyers in the United States, his practice focuses on representing homeowners, landowners, and developers in complex litigation. His appellate cases have involved planning, zoning, eminent domain, landslides, contract, due process, equal protection, defective construction, nuisance, property insurance and environmental law. He also counsels property owners and developers during the permit application phase to ensure that preconditions to suit are satisfied in the event that litigation becomes necessary.
Joanna S. McCallumMs. McCallum's practice focuses on appellate matters and business litigation, specializing in the areas of health law, unfair competition and ERISA. She has represented hospital systems and other healthcare providers, multi-employer pension trusts and insurance companies in a variety of litigation and appellate matters in federal and state courts, as well as participated in environmental, financial services, securities, trade secret and real estate litigation.
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