Limits of Remand Revisited

In TetraVue, Inc. v. St. Paul Fire & Marine Ins. Co. (D067155 12/23/2015) 4/1 reinforced and explained an important principle of appellate procedure in a subsequent appeal.  Previously, it had held the trial court had erred in denying summary judgment sought by TetraVue, remanding that matter “with instructions to grant summary judgment in favor of TetraVue and against St. Paul,” deciding St. Paul had a “duty to defend a third party claim against TetraVue.”  Not content with that victory, on remand TetraVue “moved for leave to file an amended complaint for failure to defend and bad faith against St. Paul,” which was denied.

The Court of Appeal affirmed, explaining that, because it had reversed “with instructions to enter judgment” that conferred “a narrower scope of jurisdiction on the trial court than an unqualified or general reversal.”  The trial court only had jurisdiction to enter the judgment according to that direction; it could not grant leave to amend the complaint.  CCP 473 (b) relief was unavailable, both because TetraVue had not raised that claim in the lower court and because the specific remand limited the legal authority of the trial court to grant the relief requested.

So be sure and plead all possible theories initially as you may be foreclosed from adding them later if there is an intermediate appeal which limits the availability of relief.  Don’t wait for trial and seek to “amend according to proof.”

Rare Pro Per Success

Statistics reveal a small minority of appeals succeed, and pro per success if even more rare, with the percentage of successful appeals by incarcerated, pro per litigants perhaps reduced to several places to the right of the decimal point.  However, lightning struck twice for incarcerated appellant Purvis Holloway in Holloway v. Quetel (B259622, Dec. 14, 2015), in which 2/7 reversed a second judgment of dismissal in his on-going quest to seek unpaid rent and damages.

Holloway’s earlier reversal followed the trial court’s erroneous ruling — on its own motion — striking his complaint for failure to state a cause of action after obtaining a default.  The Court of Appeal reversed the order, directing the trial court to reinstate the original complaint.  Thereafter, plaintiff attempted to obtain his default judgment, filing various pleadings, to no avail, the trial court ruling those documents did not comply with various court rules, eventually directing judgment be entered in the defendants’ favor.

The Court of Appeal reversed, recounting not only the correct procedure for securing a default judgment but also explaining the trial court’s obligation in cases “initiated by an incarcerated and self-represented litigant.”  Acknowledging the “difficult balance” between the duty to ensure the litigant had the opportunity to be heard without assuming “the role of advocate or partisan,” the panel concluded that, despite the trial court’s patience, the court had erred in failing to specify deficiencies in the pleadings and had, itself, misstated the rules.  It reversed the judgment, remanding the matter so that appellant could continue his quest for back rent.

Holloway not only contains a helpful discussion of civil procedure and judicial obligations, but also gives heart — but hopefully not too much encouragement — to pro per appellants trying to navigate the judicial maze.

Read the opinion:

An Appealing Discovery Writ

In SCC Acquisitions, Inc. v. Superior Court (G050546 Dec. 11, 2015) 4/3 hands the petitioner/appellant a Pyrrhic victory, treating an appeal from a post-judgment order as a petition for writ of mandate.  In seeking to enforce a $47 million judgment, judgment creditor Western propounded requests for production, following up with a motion to compel, which the trial court granted, prompting an appeal by SCC.  Western sought to dismiss the appeal on the ground the order granting a motion to compel was not an appealable order.  Au contraire, responded SCC, asserting the order was an appealable  post-judgment order under section 904.1, subdivision (a)(2).

After reciting the general rule of appealability of post-judgment orders: “(1) the issues raised by the appeal from the order must be different from those arising out of the appeal from the judgment and (2) the order must affect, enforce, or stay execution of judgment,” the court noted  non-appealable orders tend to be those which “are preliminary to a later judgment” or “pertain to preparation of the record for use in a later appeal;”  the Court noted several conflicting opinions concerning the appealability of post-judgment discovery orders, explaining:  “These authorities are inconclusive as to whether the order granting the motion to compel is appealable.”

Although siding with the “non-appealable” reasoning, the Court declined to dismiss the appeal because there was no adequate remedy at law if the order was not appealable, and the parties had fully briefed the matter, especially since the law was hazy on the issue.  It exercised its discretion to treat the appeal as a petition for writ of mandate.  All was not well for SCC, however, as the Court denied the newly-incarnated writ petition, finding no abuse of discretion, thereby, once again demonstrating you can win appellate battles, but still may lose the war.

read the opinion:



Juvenile Court only Has Jurisdiction if Minor Is Alive

In a sad case, Imperial County Dept. of Social Services v. S.S. (D068026 Dec. 10, 2015), 4/1 explains today the Juvenile Court only has jurisdiction as long as the minor is alive.  There, 21-month-old A.A. was removed from a family home which the Department had alleged was replete with evidence of drug use and then placed in foster care.  The day before the disposition hearing the next month, the child passed away, apparently by “inflicted trauma” while in the foster home.  Mother requested the “case be held open for another 30 days so that a death certificate could be obtained, and the court agreed.”

When the matter came on before the court in January 2015, the basic “informational copy” of the death certificate would be forthcoming within a few days, but it “would not contain an official ’cause of death’ because the medical examiner’s report would not be finalized for 60 days,” so the court “agreed to hold open the case for another 90 days.”  In April the Department sought an order terminating jurisdiction and dismissing the case, attaching the death certificate.  The child’s counsel desired to pursue “a motion for appointment of separate counsel to investigate whether Child had a potential tort claim, i.e., a guardian ad litem (GAL).”  After further proceedings, “the court terminated its jurisdiction and denied Child’s motion for a GAL.”

Father and the minor appealed, but the Court of Appeal affirmed, explaining the purposes of the Juvenile Court, a special department of the Superior Court, are child protection and family reunification, which could no longer be achieved.  The lower court did not have “inherent authority” to issue orders pertaining to children just because those children may have come within its jurisdiction previously.  The child’s parents were not without a remedy however, as there were other avenues to pursue to obtain the records.  However, the parents would not have the assistance of court-appointed counsel or a GAL to ferret them out.  This case reinforces that a Juvenile Court is not a court of general jurisdiction, empowered to issue all reasonable orders as long as the parties are properly before it.  It is an unpleasant truth that legal principles sometimes are illustrated by tragic facts.



Although the basic “death certificate” was available,

UCCJEA Revisited

4/2’s opinion today in Schneer v. Llaurado (E060040 Dec. 9, 2015) plows the always-fertile ground of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), including useful discussions of appellate procedure and the standard of review, as well as the substance of the law, to the extent a procedural jurisdiction statute has “substance.”

First, the Court reaffirms a premature notice of appeal is valid, which is important in family law cases in which the court rules then directs counsel for a party to prepare a formal notice of ruling or order, which frequently serves as a vehicle for the successful counsel to attempt to evade appellate review by delaying the preparation of that order.  Here, the minute order was September 17, 2013, but the written orders were not entered until May 1, 2014.  This writer has no knowledge of the reason for the delay in that case, but merely mentions what may have occurred in other cases.  In doubtful cases, a notice of appeal should be filed within 60 days of the ruling.

Second, the Court includes an illuminating discussion of the standard of review of “jurisdictional” questions, disagreeing with other authority which indicates a reviewing court may reweigh jurisdictional facts, as opposed to a jurisdictional conclusion of law, drawn from those facts.  Although this may remove an arrow from an appellant’s quiver, this does seem to make sense. (Until, of course, I need to argue the inverse.)

Finally, the Court discusses the problem of an interrupted “six-month” residency and whether or not the six months need be those immediately prior to the filing of the petition.  The couple had resided in California for at least six months, but mother had departed to Florida with the child for “almost four months” before father filed his petition.  The Court explained this could not defeat jurisdiction because father continued to live in California during that time.  This, too, makes sense.  Once a state is a child’s “home state” the newly-custodial parent should not be permitted to negate that by periodic absences.  In a peripatetic society blessed with $200 cross-country airfares, this decision should foster necessary stability in the acrimonious world of child custody litigation.



Uncivil Procedure

Crawford v. JPMorgan Chase Bank (B257412 Dec. 9, 2015) from 2/6 today reminds me of one of the reasons I departed from the litigation universe many years ago.  As the introduction recounts:

The practice of law can be abundantly rewarding, but also stressful.  The absence of civility displayed by some practitioners heightens stress and debases the legal profession.  Those attorneys who allow their personal animosity for an opposing counsel or an opposing party to infect a case damage their reputations and blemish the dignity of the profession they have taken an oath to uphold.

In Green v. GTE California, Inc. (1994) 29 Cal.App.4th 407, 408, we said counsel’s comments and actions at a deposition made the term “civil procedure” an oxymoron.  In comparison to what occurred in this case, one could almost say the offending counsel in Green conducted himself with decorum.

Here the practice of law became more than stressful; it was dangerous.  An attorney representing himself threatened defendants’ counsel with pepper spray and a stun gun at a deposition.  When defendants moved for terminating sanctions, plaintiff filed an opposition that was openly contemptuous of the trial court.  Such conduct can have consequences.  (See In re Koven (2005) 134 Cal.App.4th 262.)  The trial court granted defendants’ motion for terminating sanctions.  Plaintiff appeals the ensuing judgment.  We affirm.

I recall various opposing counsel standing up and yelling at me, pounding the table, and barking at the court reporter.  I was not, however, ever threatened with pepper spray or a stun gun.  I guess it was just a matter of time.  And I always viewed Ventura County as such a pleasant place to practice law.

Burden of Proof May Determine Standard of Review

In Marriage of Leichty (F069875 Dec. 7, 2015) the Fifth District reiterated an important distinction pertaining to the interrelationship between the burden of proof at trial and the “substantial evidence” standard of review.  If an appellant is challenging express or implied trial court findings “in favor of the party with the burden of proof, the reviewing court will infer the existence of that implied finding only if it is supported by substantial evidence.”  In those case the appellant who lost at trial can argue the ruling is unsupported by substantial evidence.

But what if the appellant had the burden of proof in the lower court, “and the trier of fact explicitly or implicitly concluded the appellant did not carry the burden”?  As an appellant, it often is preferable to couch your argument as legal error, but that line of attack may be unavailable if the trial court relied on the governing legal precedent and/or recited the relevant “factors” underlying the decision.  All is not lost, however.  In those cases, the reviewing court can look to “‘whether the evidence compels a finding in favor of the appellant as a matter of law.'”  “Under the finding-compelled-as-a-matter-of-law standard, the finding was required only if the appellant’s evidence was (1) uncontradicted or unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.”  So ascertain which party had the burden at trial and frame your appellate argument accordingly.


CANRA Clarified

Today in B.H. v. County of San Bernardino (Nov. 30, 2015, S213066) the California Supreme Court clarified the parameters of potential liability if law enforcement fails to “cross-report” allegations of possible child abuse to the relevant child welfare agency, relying on both the statutory language and legislative history of the Child Abuse and Neglect Reporting Act (CANRA).  The Court differentiated between law enforcement’s reporting of the receipt of initial abuse allegations and its subsequent investigation of those investigations, finding a mandatory duty to cross-report the former but not the latter.  Depending on the lens through which you view it,  B.H.  could either “open the floodgates” to additional lawsuits against law enforcement or provided needed safeguards to children in potentially abusive situations.  Given the statutory language and the purpose behind the Legislature’s cross-reporting mandate, I side with the latter and child protection.

The Court also tucked a procedural warning to appellate practitioners in footnote 3.  Responding to the defendant’s claim the plaintiff had forfeited a portion of the claim, the Court noted the defense had not raised the forfeiture argument in its summary judgment motion, nor had it  filed an answer to the petition for review, “requesting that we limit the issues by excluding the one related to section 1166, subdivision (k).”  So, the lesson here is respondents can forfeit arguments, too, not just appellants.  Be alert to procedural arguments, no matter which side you represent.