Category Archives: Uncategorized

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pins a “black hat” on one of the litigants, which usually sticks through the appellate process, but not always, as this unpublished opinion demonstrates.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:

Record Woes for Both Pro-Pers and Counsel

Two opinions today turn, at least partially, on the pervasive problem of deficiencies in designating the record on appeal.  The first involved a pro per appellant: Daniels v. San Diego Youth Services, D069401.  That appellant failed to designate a reporter’s transcript, or adequate substitute, omitting key documents from the clerk’s transcript as well, leading to the inability of the Court to address the merits of her arguments.  The Court even noted she had been forewarned by Judicial Council form APP-003 which recites:  “I understand that without a record of the oral proceedings in the superior court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether an error was made in the superior court proceedings.”

Because there was no reporter’s transcript, the Court’s review, to the extent it could decipher the appellant’s claims, was “limited to determining whether any error appears on the face of the record.”  Which was not the case, so Daniels’ claims, such as  evidentiary error and erroneous denial of a jury trial, were forfeited.

But record designation problems are not confined to pro pers.  Division Five of the Second District published Southern California Gas Co. v. Flannery, B268298, which concerned a hearing at which — as is often the case these days — “no court reporter was present.”  However, all is not lost if there was no reporter since court rules provide for an agreed statement or a settled statement as a substitute, but the appellant did not pursue that route.

Although the court did note that some “legal issues requiring de novo review” may be resolved on appeal even without a reporter’s transcript, that was not the case with that appellant’s primary claims as a due process claim was derailed by a presumption he had the opportunity to present evidence, and an argument concerning the amount of attorney fees awarded also met the same fate.  The Court did reach the merits of other legal issues, however, as the opinion contains interesting discussions concerning the requirement of an undertaking or bond for a stay on appeal — looking back to changes in the law since 1893 — as well as attorney fee liens.

But you may not be so lucky as to have “pure” legal issues which are reviewed de novo.  It often consumes more attorney time, and hence more money, to prepare the substitutes — an agreed or settled statement — than the fee charged by the court reporter, so think twice before eschewing bringing along your own reporter.  But if you are already past that point, and “no reporter was present;” submit an “agreed” or “settled” statement, even if it only memorializes that you appeared and objected to whatever was about to befall you and/or your client.  Read the opinions:



In Humboldt County Adult Protective Services v. Superior Court (A145981 10/24/16) the First Appellate District demonstrated  appellate courts do occasionally “right wrongs” and hold government bureaucracy accountable, in addition to addressing important procedural and substantive issues.  The legal issue pertained to the entitlement to attorney fees if a party, here the county, commenced a proceeding under the Health Care Decisions Law (Prob. Code, sec. 4600 et seq.) “without any reasonable cause.”  Along the way to the result, the Court included important ethical reminders for trial and appellate practitioners, as well as including a helpful discussion of de novo review.

Humboldt County concerned the care of a Mr. Magney, who had appointed his wife his agent for health care decisions in an advance health care directive executed in 2011, also designating his sister as alternate agent.  Magney was hospitalized in 2015 with multiple medical problems.  In accord with his health care directive and his express wishes, and after consultation with his wife, cardiologist and  treating doctor, all treatment “apart from palliative or comfort care” was withdrawn.  Magney told his doctor “he was primarily concerned about help in managing pain, and was not interested in continuing other treatment.”

The plot thickened when Humboldt Adult Protective Services received a report Magney may have been the victim of caretaker abuse or neglect, launching an investigation by a public health nurse, who even after consultation with Magney’s treating physician, questioned his capacity to make decisions, despite reviewing a copy of his advance directive.  She interviewed another doctor who had seen Magney three months previously at the VA hospital, eventually deciding to file a court action, returning to the hospital with a “sheriff’s deputy and a woman whom she understood to be a VA psychologist, . . . to assess Mr. Magney’s competency.”  That same day Humbolt filed “ex parte and without notice” a petition to remove Mrs. Magney as her husband’s agent, as well as a temporary order administering medication, which was granted.

However, the petition omitted any mention of Magney’s treating physician, instead relying on the public health nurse’s declaration which was fraught with representations “made without any foundation indicating the source of her supposed knowledge, while others were offered on information and belief or were based on multiple levels of hearsay.”  Humboldt eventually agreed the declaration was not being offered for its truth at all, but just to explain the nurse’s actions.  Humboldt also offered a letter from the VA doctor, whom it misrepresented as Magney’s “assigned primary care physician,” and a declaration from the VA psychologist attesting to Magney’s lack of competency, even though the Health Care Decisions Law requires the “primary physician” to determine competency.  Shortly thereafter Mrs. Magney secured counsel and opposed the petition, at which point Humboldt withdrew the petition five days later, attaching another unauthenticated “report” from still another doctor.  A week later the trial court denied Mrs. Magney’s request for attorney fees, to which she was entitled if Humboldt had commenced the proceeding “without reasonable cause,” the case then proceeding to the Court of Appeal on that question.

As with any good opinion, the result was foreshadowed by the introduction, which indicated Humboldt had procured the temporary order “not only on the basis of an appallingly inadequate evidentiary showing, but also by misleading the trial court both as to pertinent provisions of the Health Care Decisions Law and as to Mr. Magney’s medical status.”  The opinion begins with a good discussion of the seemingly-ever-shrinking de novo standard of review, finding the meaning of “reasonable cause” an issue of statutory construction, reviewed de novo, applying an objective standard, adding, “any professed good faith belief on [Humboldt’s] part is difficult to reconcile with the record it put before the court” in any event.  Because “Humboldt’s evidentiary showing in support of its removal petition and request for an order compelling immediate treatment was appallingly inadequate and established no facts supporting  its invocation of the HealthCare Decisions Law,” and Humboldt had “deliberately misled the trial court and made what could be called a fraudulent evidentiary showing” the Court found Humboldt had no reasonable cause as a matter of law, entitling Mrs. Magney to attorney fees.

The Court not only took Humboldt to task but also appellate counsel for arguing in favor of withholding information from the trial court:  “[b]asically, counsel’s view seems to be that if Humboldt needed to be duplicitous to get an order compelling treatment, so be it.  That a statutorily recognized fundamental right was involved appears to have been of no moment to Humboldt or its attorney.”  Appellate practitioners are often stuck with the hand that is dealt them and need to make the best of a bad situation, either as an appellant or a respondent.  However, counsel must take care not to take “damage control” too far, so as to try and avoid damaging counsel’s own reputation and making a bad situation worse.  For more juicy details read the opinion:


More Pro Per Problems

In Skerston v. Pacific Bell Telephone Company (G051600 Oct. 20, 2016), 4/3 once again was plagued by the perennial problem of a pro per attempting to navigate appellate procedure.  Although the court noted the failure to comply with the rules could result in forfeiture of the claims, it dealt with them anyway.  Many litigants are unrepresented because they do not have a decent case, but others are unrepresented because of lack of funds, lack of knowledge, or both.  Unfortunately, law school “clinics” seem to focus either on “hot” “constitutional”-type issues which may bring renown to professors or beef up student resumes or on common recurring family law or landlord-tenant issues, eschewing appeals.

Pro per appellants are not without resources however.  The Court of Appeal’s website has  a very good guide, including a video presentation, link below, recommended for many attorneys as well:



The Citation Train Had Not Left the Station

On September 19, 2016, in Denney v. CSX Transportation, Inc., E064240, 4/2 took appellant’s counsel to task for citing a previously-published case in which review had been granted: BNSF Railway Co. v. Superior Court (2015) 235 Cal.App.4th 591, review granted July 22, 2015, S226284.   “Isn’t that permitted now?” you may ask.  According to the summary on the Supreme Court’s website:

Under amended rule 8.1105(e)(1)(B), “Grant of review by the Supreme Court of a decision by the Court of Appeal does not affect the appellate court’s certification of the opinion for full or partial publication.” This provision makes California’s practices consistent with those of the vast majority of other jurisdictions. Pursuant to amended rule 8.1105(e)(2), the Supreme Court retains authority to “order that an opinion certified for publication is not to be published or that an opinion not certified is to be published,” and it may “also order depublication of part of an opinion at any time after granting review.”

Amended rule 8.1115(e) governs citation of published Court of Appeal opinions after review has been granted by the Supreme Court. Subdivision (1) of that rule, addressing citation while review is pending, adopts what had been set out as “Alternative B” in the July 2015 request for comment, referred to above. It provides: “Pending review and filing of the Supreme Court’s opinion, unless otherwise ordered by the Supreme Court . . . , a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only.”

However, the new rule went into effect July 1, 2016, but appellant’s brief was filed February 18, 2016, with the case considered fully briefed on April 27, 2016, according to the on-line docket.  So, while citation could have been permitted now, it was not then, hence the rebuke.  So counsel should take care to follow the rules in the effect at the time of briefing, not a rule which one anticipates the Court will adopt.



No Border Wall for Experts

Today in Borrayo v. Avery, A143765, the First Appellate District reversed a summary judgment in a medical malpractice action.  The plaintiff apparently had developed a repetitive work injury, and was examined in 2008 by a Dr. Pineda, a physician licensed in Mexico.  The next year, she was examined by a California physician, who recommended, and then performed, surgery on Borrayo.  The opinion notes she eventually “suffered adverse symptoms,” eventually filing a medical malpractice complaint against Avery.

Avery brought a summary judgment motion, supported by a physician’s declaration to the effect that defendant had appropriately performed the surgical procedure and had provided appropriate postoperative care.  Borrayo’s opposition relied on a declaration from Pineda, who opined, basically, that Avery had “destabilized plaintiff’s right sternoclavicular joint during her surgery. . . .”  Avery objected to Pineda’s declaration as lacking foundation, asserting “plaintiff had failed to establish that Pineda was sufficiently familiar with the applicable standard of care.”  The trial court granted summary judgment, sustaining defendant’s objection, “concluding Pineda had supplied ‘absolutely no information about the appropriate standard of care in the United States.'”

The Court of Appeal reversed, explaining the previous rule looking to a community or locality test has long fallen to the wayside, and, “while locality is a circumstance that may be considered, it is not determinative.”  The previous rule had been formed “‘when there was little intercommunity travel,'” so it was not fair to hold physicians in smaller communities with less resources to the same standard as, say a “big city” physician affiliated with a large teaching hospital.  The court looked to a 67-year old Supreme Court opinion which referenced “rapid methods of transportation and easy means of communication,” rendering the old rule outdated.  Therefore, a per se ruling a Mexican’ physician’s opinion was legally insufficient was error.  So, whatever the benefits or detriments of globalization in other fields, in the realm of expert opinion, our southern border is no barrier to admissibility of expert opinion, the analysis of which looks solely to the expert’s qualifications, without regard to locale.

Read the opinion: