The Right to Confrontation Lives

In People v. Sanchez, S216681, the California Supreme Court today built on recent precedent from the U.S. Supreme Court and a tide of judicial and scholarly criticism to find case-specific “statements” related by a prosecution “gang expert” not only constituted inadmissible hearsay under California law, but also were “testimonial” so should have been excluded under Crawford v. Washington.  I generally steer away from substantive legal discussions in this space but, since this was my case, I will diverge from that precedent a bit.

Sanchez considered the widespread use of “gang expert” testimony in criminal prosecutions to prove an offense was “gang related,” so as to increase the sentence.  Generally, an officer or detective with some familiarity with a gang will testify as to the gang’s history, activities, common symbols, etc. and then ultimately opine the offense was gang-related.  The problem comes from the conflict between the old adage that an expert can rely on hearsay and the defendant’s 6th Amendment right to confront and cross-examine the witnesses against him because, often, the “gang expert” will rifle through the files at the police department and find various documents and records which were created by other officers, but who are not called to testify.  Hence, the defendant cannot cross-examine the “real” witness against him.

Justice Corrigan’s unanimous opinion explains why an “expert” cannot present “case specific” facts concerning which the expert has no personal knowledge, so those facts must be presented by witnesses who do have personal knowledge and can be cross-examined.  Stylistically, the opinion is well-written, including various common-sense examples to illustrate its points.  It is recommended reading for practitioners, law students struggling through evidence class, and the public.  It also demonstrates, as did the late Justice Scalia’s opinions in this area, that the 6th Amendment is a unique corner of jurisprudence where justices labeled as “conservative,” “moderate” or “liberal” can find common ground.

read the opinion:

HOW to Succeed With a Writ Petition

In an unpublished case filed yesterday, H.O.W. Hall, Inc. v. Superior Court, G052123, 4/3 granted H.O.W.’s petition for writ of mandate after an unsuccessful summary judgment motion, issuing the writ directing the trial court to grant the summary judgment and enter judgment in H.O.W.’s favor.  It is generally believed writ petitions after unsuccessful summary judgment motions are a waste of time, but that is not the case.

Why, and how did H.O.W. succeed, you ask?  The underlying allegations by  Roe were that a man who had befriended her at an AA meeting held on H.O.W.’s premises had sexually assaulted her off H.O.W.’s premises at a trailer the man owned.  She alleged H.O.W. should have known the assailant used AA functions to find female victims but had failed to warn or protect the women. The trial court declined to strike the causes of action for negligent failure to warn and negligent failure to take protective measures as H.O.W. was “‘landowner supplying property for meetings attended by vulnerable women [but] failed to negate the existence of a legal duty.'”

The Court of Appeal disagreed, noting it would be unjust to impose a duty to investigate off-premises issues, and there was no “special relationship of custody or control.”  H.O.W. did not run the AA meetings;  it merely leased space to AA, and the proposed burden placed on AA and H.O.W.  would have been great.  Moreover, if H.O.W. had warned the assailant was a sexual predator based only a history of claimed prior unwanted advances, it could have been sued for defamation.  The court concluded with an emphasis on the importance of AA and similar programs in helping people overcome addictions, noting generic warnings about possible sexual predators may discourage participation in similar groups, as well as raising their insurance costs.

So, how did H.O.W. win a writ petition and convince the Court of Appeal to rule on the merits rather than merely allowing the matter to proceed to trial?  It had a meritorious legal position AND a strong public policy rationale which illustrated how this case could affect persons far beyond the individual litigants.  So always keep the broader picture in mind and try and convince the court not only you are right on the law, but also your cause is just.  You, too, might be able to avoid a summary denial.

CEQA Reined In

4/1 filed an interesting opinion today in Preserve Poway v. City of Poway  (D06635), reversing a trial court order holding the California Environmental Quality Act (CEQA) required a landowner prepare an environmental impact report (EIR) for his project, building 12 homes on one-acre lots on land on which he had operated a horse boarding facility, the Stock Farm, for 20 years.  “The superior court ruled an EIR was necessary because there was substantial evidence that the Project’s elimination of the Stock Farm may have significant impact on Poway’s horse-friendly ‘community character’ as the ‘City in the Country.”

The project would not violate any land use regulation; it would not have adverse impact on traffic or noise; nor would it impair views.  The trial court accepted arguments of the “Preserve Poway” citizens’ group the project would negatively impact the “community character” in that it would harm the “resident’s sense of well-being, pleasure, contentment, and values that come from living in the ‘City in the Country.'”  However, “impacts to the collective psyche of Poway’s resident’s” were not relevant as “CEQA does not require an analysis of subjective psychological feelings or social impacts,” as its “overriding and primary goal is to protect the physical environment.”  Impacts which “are psychological, social and economic — not environmental” are not relevant.

As a Southern California horse owner, I, too, decry the decreasing number of boarding stables, from a social perspective, as well as an economic one as immutable laws of supply and demand result in higher board bills.  However, the Court correctly ruled a community’s feelings cannot be leveraged into a CEQA violation to deny a landowner’s legitimate property rights.  Moreover, the plaintiffs were a bit unsympathetic since residents of the new homes could keep horses on their property, and the chief opponent was the Poway Valley Riders Association “whose 12-acre rodeo, polo, and other grounds are across the street from the Stock Farm.”  There was plenty of room there to operate a boarding stable there, but the Association did not want to undertake the expense and work to do so.  Instead, they attempted employ the judicial system to force the Stock Farm to remain in business for their convenience, so they did not necessarily “wear the white hat” in the dispute.

Procedurally, the opinion does contain interesting tidbits relevant to appellate practice, chiefly the importance of a cross-appeal if a party who is a respondent wants to raise a claim of error, explaining CCP “906 is intended to permit a respondent to assert a legal theory that will result in affirmance of the judgment notwithstanding appellant’s contentions,” not to permit a respondent to try and reverse another portion of a judgment.  Footnote 2 also granted a motion to strike a portion of the appellant’s brief which had attempted to incorporate website information, not presented below, an increasingly-common practice.

The case is useful as a window into both societal change and CEQA law, as well as appellate practice.  You can read the opinion here:

Short-Sighted on Short Sales

Today in Coker v. JPMorgan Chase Bank (S213137 Jan. 21, 2016) the California Supreme Court affirmed a Court of Appeal ruling  that California’s anti-deficiency statute, CCP 580b, precludes a deficiency judgment against a home loan borrower not only when the bank initiates a foreclosure sale, but also when the borrower initiates a short sale.  After approving the short sale and receiving those sale proceeds, Chase sent Ms. Coker a demand letter for the $116,686.89 balance remaining on her loan.  She then filed a declaratory relief action, to which Chase demurred, which demurrer was sustained by the trial court.  The Court of Appeal reversed, and our Supreme Court agreed with the Court of Appeal.

What is remarkable about Coker is that, apparently, some mid-level manager at Chase actually authorized the demand letter after approving the short sale.  In a spectacularly-bad-for-PR turn of events, there is now a published case documenting this.  Not only that, but if the tactic had succeeded, what would have been the outcome?  Short sales would have ground to a halt.  Then what would have been the result of that?  Borrowers would have sat in properties for months, often over a year, while the lender went through all the machinations required to foreclose and then evict the former homeowner, all the while the property deteriorates, losing even more value.  Chase should consider itself lucky its ill-conceived gambit did not succeed.

read the opinion here:


Nice Work if You Can Get It

The recent unpublished case of In re Marriage of Scott (B263480 Jan. 15, 2016) not only provides a glimpse into the finances of Byron Scott, “the head coach of the Los Angeles Lakers,” but also some hints into briefing mechanics and trial court evaluation of fee requests.  As for the personal details, Mr. Scott earns a whopping $312,500 per month, plus “$26,661.86 biweekly from his former position as head coach of the Cleveland Cavaliers. . . .”  What is perhaps more interesting than the income is the recitation “the marital estate was worth $6 million to $7 million,” leading to the rhetorical question of how someone with that level of income can have a net worth less than double one’s annual income.  But that is not a legal question so will not be the focus here.

The legal point on which Anita Scott succeeded was the trial court erred in including her portion of the Cavaliers’ payment (community property) in the temporary support award, something to watch for.  The briefing mechanics point is Byron included “a comparison chart” in his brief which the Court found helpful, not to his ultimate benefit however.  So that is worth considering.

As for the fee request, the trial court had ordered Byron to pay Anita’s counsel $75,000 in fees “in order to ‘create a level playing field.'”  However, the court had noted the parties had “spent an inordinate amount of time and money on preliminary matters that might best have been resolved through negotiation between counsel.”  In particular, it pointed to “many instances of inter-office conferences and multiple-attorney involvement in meetings which are not all within the Court’s perception of reasonability of fees,” warning it would scrutinize future fee requests.

I, for one,  welcome such scrutiny.  In many cases I have reviewed, trial judges — perhaps they do not have the time to scrutinize bills or maybe they just have become accustomed to over-billing —  routinely approve attorney fee requests which seem clearly “pumped.”  $100 per hour for secretarial time to do filing, “block billing” of 8 or 10 hours in a day with no specificity, 2 or 3 attorneys on one side billing for appearing for a motion at which no testimony had been taken, office conferences which appear to be nothing more than passing remarks in a hallway, and several days of time billed for drafting points and authorities on routine motions all are approved without inquiry.  If a party wants to pay a law firm $200,000 for a $50,000 case, that is between the party and the law firm.  However, the opposing party should not be ordered to pay those excessive fees.  Perhaps if trial judges took the time to scrutinize fee requests a bit more and then issue written rulings pointing out why counsel’s fees were unreasonable, this would curb the practice of excessive fees, at least a bit.  A few such rulings — or appellate opinions — posted on the internet certainly would be bad for business and a strong disincentive to run up excessive legal fees just because counsel and the client know they can stick the other side with the bill.  Wishful thinking, I know, but one can dream.


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.