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Wasted Plaintiff, Not Wasted Writ Effort

In today’s Klean W. Hollywood, LLC, v. Superior Court (B283816) Division Four in Los Angeles explained interesting and novel issues in a case in which the plaintiff, Jackson, — winner of the chutzpah of the week award — sued a residential drug treatment facility where he had sought treatment for drug addiction, claiming negligence due to Klean’s failure to prevent him from smuggling heroin into his room in the middle of the night, aided by a co-conspirator, the end result being Jackson’s unconsciousness and eventual transportation to the hospital the next morning.  Klean W. Hollywood [an oxymoron if it had been spelled correctly] filed  a summary judgment motion, which was denied, following that with  a  petition for writ of mandate, which was granted.

Klean argued the Drug Dealer Liability Act (“DDLA”) precluded the action, which also was barred by common law.  The Court of Appeal rejected the first claim with a comprehensive discussion of the DDLA, but agreed with the second, explaining the action was barred under the “‘wrongful conduct rule,’ which embraces the policy that ‘courts should not lend their aid to a plaintiff who founded his cause of action on his own illegal conduct.'”  The Opinion includes a comprehensive discussion of case law concerning third party voluntary intoxication liability, which would be helpful in multiple contexts.

As far as appellate procedure goes, Klean demonstrates a writ petition after a summary judgment denial is not necessarily a wasted effort.  The various Districts of the California Court of Appeal may diverge on their internal policies concerning whether proceeding to trial on  a facially meritless case is “irreparable harm” sufficient to justify writ relief.  Some may prefer to “deal with it later on appeal,” but you never know unless you try.  If you have an interesting legal issue, and it appears the “wrong” party was successful at trial, it may be worthwhile to petition.   Read the opinion:


A Matter of Judgment

In Arikawa v. Superior Court (Oct. 5, 2017, B283862) [nonpub opn.], we obtained a “peremptory writ of mandate,” issued only when the legal error is clear, and there is no need for further briefing and argument.  The trial court had granted a summary judgment motion, but only actually signed the order granting summary judgment, never an actual “judgment.”  At our suggestion trial counsel requested the court sign the judgment so an appeal could proceed, but the trial court declined, essentially ruling the order granting summary judgment was “good enough” and for all practical purposes a “judgment.”

The Court of Appeal disagreed, reiterating no appeal can be taken from an order granting summary judgment, directing the court to enter an actual judgment.  So, if you lose on summary judgment and the prevailing party stalls out getting the court to sign an actual “judgment,”  — generally in order to prevent an appeal or attempt to argue the time for appeal has lapsed — file your own request with the trial court for judgment, even though that judgment is against you, so you can proceed with the appeal.

Read the — short — opinion:


Broken Record Exhortation

Today’s example of my “sounds like a broken appellate record” exhortation comes from In re Marriage of Caballero and Dearcia (Sept. 13, 2017, D071399) [nonpub. opn.] in which the appellant first designated reporter’s transcripts of two hearings but then received a notice they had not been reported, which notice also informed him of the alternate agreed statement or settled statement procedure.  However, the appellant did not pursue those alternatives.  The Court of Appeal reiterated the refrain that failure to provide the record — even in the alternative format — requires the Court to conclusively presume the judgment is correct as to all evidentiary matters, meaning no argument as to sufficiency of the evidence is permitted.

However, the appellant sought to avoid this predicament by arguing he had been denied due process by the combination of lack of a reporter and the lack of detail in the judgment.  Not so, explained the Court as the superior court website “provides extensive information on how to obtain a court reporter,” and he was advised of the alternatives.  As for the “lack of detail” claim, the judgment contained all the information necessary to affirm it, as it referenced a statute and contained a factual finding.

So, if you don’t have a reporter, be sure and pursue the alternatives.  Better yet, pay the money to have a reporter present, as the money spend on the reporter is far less than what it will cost to go through the onerous and costly settled statement procedure, even for the shortest hearing.


Seeking Truth Is a Sufficient Goal for Standing

In Dent v. Wolf, B278951 (Sept. 12, 2017), 2/8 decided an interesting standing issue in the context of a paternity case.  The 69-year-old plaintiff petitioned to establish a parental relationship with a putative father who had passed away back in 1985, with final judgment on his estate being entered in 1993.  In the trial court, administrator Wolf succeeded in having the petition dismissed on the asserted ground “that the Petition presents no justi[c]iable controversy as it seeks only an Order determining paternity with no request for any payments of any kind.”  Wolf argued Dent had not suffered injury but merely sought “to invoke the judicial process for apparently personal reasons.”

The Court of Appeal reversed, explaining Family Code 7360 identifies those with standing, specifically including the child;  there was no added requirement the “child express a pecuniary interest as a condition of the paternity suit,” nor was there an age limitation.  It would seem self-evident the purpose of a paternity action is to establish paternity, any  consequences which may or may not flow from that being irrelevant to the standing question.  “Personal reasons” are the primary purpose of a paternity action, the Court noting, “The interest in identifying her father is independent of a claim for financial remuneration, affords her standing, and demonstrates a justiciable controversy.”

So, occasionally in the law, truth is its own reward, or at least it is sufficient to confer standing.  For the opinion:



Prop 66: You Say “Mandatory;” I Say “Directory”

Today the California Supreme Court filed its opinion in Briggs v. Brown, the first in what promises to be a long line of challenges to Prop 66, the “Death Penalty Reform and Savings Act of 2016.”  The majority upheld various provisions of Prop 66, primarily pertaining to habeas corpus petitions, but struggled over the 5-year deadline for resolution of capital appeals, ultimately concluding that, despite the deadline being a prime component of the initiative, that deadline was “directive only,” basically because it is unrealistic and impossible to enforce.  Justice Cuellar, joined by 4/3’s Justice Ikola sitting on assignment, took the more straightforward approach:  “A statutory limit on the amount of time a court may spend deciding a case is an intrusion on quintessential judicial functions and violates the California Constitution’s separation of powers provision.”  That conclusion makes more sense to me, but — either way — these cases are not going to be decided within 5 years.

In addition to a short course on how to argue a statute only is “directory” or “aspirational,” the opinion is notable for Justice Liu’s concurring opinion describing in detail the mechanics of the process for post-conviction review in capital cases, details of which very few voters were aware when presented with the proposition.   If your eye glaze over during the habeas corpus discussion, I suggest you skip to the concurrence.

Read the opinion:



A Lucky Win

The recent opinion in Marriage of Ashkari & Yaghmai (B269776) contains interesting twist and turns, as well as a discussion of some arcane appellate rules and  well as a reminder familiar family law requirements may slip through the cracks once the trial court pins a “black hat” on one of the litigants, which usually sticks through the appellate process, but not always, as this unpublished opinion demonstrates.

This couple’s union produced one child and several businesses, but was apparently destined for dissolution after “Hossein placed an unauthorized listening device in Ninoosh’s car” and also “blew up Ninoosh’s friend’s car,” leading to felony arson and eavesdropping charges.  After Ninoosh filed for divorce, Hossein “reduced the balances in the business bank accounts and quickly withdrew any deposits made to the accounts,” causing the $9,500 monthly mortgage payment to be unpaid and making it difficult for Ninoosh to meet routine household expenses.  The trial court issued a variety of remedial orders, which Hossein apparently ignored, but also appealed.

Because Hossein had not complied with the orders and had not sought a stay, Ninoosh filed a motion to dismiss the appeal, invoking the “disentitlement doctrine,” apparently also supported by the trial court’s comments concerning Hossein’s willful noncompliance.  For his part, Hossein pleaded penury, asserting an inability to comply.  The Court of Appeal thoroughly discussed the doctrine, which “empowers a reviewing court to dismiss an appeal by a party who refuses to comply with trial court orders.”  The Court emphasized the discretionary doctrine could be applied “even if the noncompliant appellant believes that the trial court’s judgment or order is invalid.”  The court concluded:  “Hossein’s flagrant refusal to abide by the trial court’s orders is precisely the conduct the disentitlement doctrine is intended to address.”

However, the appellate court did not dismiss the appeal because the trial court did not comply with fundamental statutory requirements concerning support calculations, requiring a trial court to actually calculate Family Code section 4055 and 4320 guideline support, even if it subsequently finds good cause to diverge from that calculation.  Here, the court basically calculated guideline support of $10,993 but increased it to $20,000 per month, apparently to allow for the payment of the mortgage out of support.  The problem was the income available for support was $27,835.  Even though counsel had argued Hossein was making more money, there was no actual evidence to support that conclusion.  So, in an unusual circumstance in which the appellant comes to the Court of Appeal wearing the “black hat,” he still succeeded, no doubt based on the strong policy reasons requiring initial calculation of support to be guided by the statute.    A risky strategy though, as another panel may have exercised its discretion and just dismissed the appeal.

The opinion also contains a reminder the Court of Appeal considers the merits of an appeal even the respondent does not file a brief (fn. 4), and a brief discussion of conducting a hearing on remand if the trial judge has been disqualified.  Finally, one justice concurred in the “result only.”  Lots of twists in an unpublished case.



Remedy Eludes Former Foster Youth

Although “For every wrong there is a remedy” (Civ. Code sec. 3523), that remedy may not be in court.  In In re Jesse S. (June 7, 2017 G054169), 4/3 examined “an unusual case” in which it believed the appellant may be due relief, but rightly constrained itself from legislating from the bench.  The appeal concerned a youth who had been adopted while a foster child but sought to return to the foster care system at age 19 because, he asserted, his adoptive parents no longer were supporting him even though they were receiving payments from California’s Adoption Assistance Program.  The juvenile court judge denied his request because the statute only permitted that result if the adoptive parents no longer were collecting benefits.  The Court of Appeal “reluctantly” affirmed.

As in many families, the adoptive parents and Jesse did not see eye-to-eye on his life choices, with Jesse leaving college but declining therapy for his problems, also declining to return to their home, preferring homelessness, but eventually finding housing and a job as a busser.  The parents ensured he had health insurance,  but he eventually received public health insurance so even that was unnecessary.  Since Jesse was on his own, he sought reentry into the dependency system, apparently to obtain additional benefits.  However, the relevant statute only permitted that if the adoptive parents no longer provided support and also no longer were collecting benefits.  Because the benefits had not stopped, the trial court applied the letter of the law, denying the motion, despite the judge’s sympathy for the “Catch-22 in which Jesse found himself.”

The Court of Appeal explained the problem lay with the structuring of the programs and, despite the fact the funds were not being used for the intended purpose of “helping him transition to adulthood,” those funds must continue until there was “a mandatory reassessment, which may be an interval as long as two years.”  There apparently was no expeditious remedy in the statutory scheme to have the funds stop going from one program back to the dependency system for a particular individual, “a flaw in the statutory scheme.”  However, the Court could not “step in” and rewrite the statute, “not with a decent respect for the separation of powers.”  Although the result was “anomalous,” it was not “absurd” as the statutes governing the individual programs were not in an of themselves irrational.  The Court exhorted the Legislature to address the situation but, in this “case without villains,” it was up to the Legislature and the Governor to craft a solution for youth in Jesse’s situation, even though that solution apparently would come too late for Jesse.

Vexing Procedural Pointers

In Ogunsalu v. Superior Court, (May 31, 2017 D071323) 4/1 packs several procedural points into a short opinion which may be useful in other circumstances.  The case concerned whether or not the vexatious litigant prefiling requirements apply to a self-represented litigant who filed a petition for writ of mandate in the superior court, challenging the denial of his request to continue an administrative proceeding.  The short answer is “yes,” but the opinion contains helpful hints for other cases.

First, the Court noted the question was technically moot because the hearing had concluded.  However, it continued on because “a reviewing court may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public interest and is a question capable of repetition, yet evading review.”  Having argued this on occasion, I find it generally unpersuasive, given the overburdened appellate courts, but have succeeded a few times.  The key is whether the issue piques the Court’s interest.

And sometimes you get a bit more of a reason to issue an opinion on a moot claim, leading to the second point.  The Court originally had denied the petition, prompting Ogunsalu to petition the Supreme Court for review, which granted review but transferred the matter back to the Court of Appeal in light of a new decision.  So, here, the Supreme Court had weighed in, prompting a decision on the merits.  This is important for other cases because, if the Court of Appeal summarily denies your writ petition, that is not necessarily the end of the road; if the issue merits it, the Supreme Court can — and does — transfer the matter back to the Court of Appeal for a full opinion on the merits.

However, a decision on the merits, even after Supreme Court transfer, does not equate with victory.  Here, the Court of Appeal, while “sympathetic” to the petitioner and noting perhaps a legislative fix is in order, concluded CCP 391.7’s reference to “litigation” required a court proceeding, not an administrative proceeding, so the writ petition was indeed new litigation (as opposed to an appeal in an existing case in which the vexatious litigant is a defendant), triggering the prefiling rules for vexatious litigants, an interesting first impression issue.  While it may sound trite, one key to maneuvering the maze of procedure to obtaining a ruling on the merits of a writ petition remains catching the Court’s attention with an interesting issue, but prompting from the Supreme Court does not help either.


Post-Judgment Orders

In an unpublished case I glanced at from yesterday because of its interesting name, The Old Orchard Conservancy v. City of Santa Ana, G053003, Div. 3 of the 4th District reminds us that post-judgment orders for costs are separately appealable.  At the end of a typically-long CEQA opinion concerning a last vestige of agricultural history in Orange County, the court reiterated it had no jurisdiction to review a cost-award as the trial court’s ruling on the motion to tax costs had been February 5, 2016, but the notice of appeal from the underlying judgment had been filed December 29, 2015.  Because the appellant challenged the amount of costs, which had been determined in the post-judgment motion, rather than the entitlement to costs, which could be part of the judgment; a separate, subsequent notice of appeal was required.  Litigants will have to determine if the additional filing fee and effort is worth a challenge to an amount of costs, but if no filing fee is paid, the Court of Appeal will not let you through the orchard gate.

There Is Such a Thing as “Bad Publicity”

For a prime example of lack of insight into potential litigation ramifications see today’s opinion in Marriage of Schu, B269831 in which Division Six of the Second Appellate District published an opinion beginning with the legal point:  “California’s so called ‘No Fault Divorce’ law does not require a court to ignore evidence of fault when deciding spousal support.  This is especially the case when the spouse seeking support is guilty of domestic violence.”  In affirming the trial court’s denial of support to Genise Gomez, the Court explained her acts of domestic violence were sufficient support for an order denying her spousal support.

An interesting legal point, but “What did she do?” you might inquire.   The opinion recounted that, not only did Gomez supply alcohol and pornographic movies to her kids and their friends, but she also began having oral sex with her son’s 12-year-old friend, progressing to intercourse, with these events lasting several years.  When it appeared this would become public, Gomez told one of her children to hold down her daughter while she hacked off her hair because she would not supply information permitting her access to social media sites.  This humiliated her daughter, causing her long-term emotional damage.

The legal point was this conduct was more than sufficient to constitute “domestic violence” sufficient to justify a denial of child support.  The other lesson to be learned — other than not committing crimes against minors — is that not only do physical actions have consequences, but advancing legal arguments may have long-term consequences as well.  Ms. Gomez’ deeds are now recounted in a case published in California’s official reports, enshrined in law libraries in perpetuity.  Not only that, but an internet search reveals multiple webpages announcing a “child molester” was suing her ex-husband for child support.  It would seem the appellant would have been a lot better off slinking away in quiet ignomy, rather than risking permanent publicity by seeking a few thousand dollars a month.  Read the opinion: