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:

A Remedial Lesson on Writ Remedies

In Cox v. Superior Court, C080870, the Third District today filed an interesting, short opinion explaining the difference between civil and criminal remedies for incarcerated litigants.  Mr. Cox, apparently unhappy about conditions of his confinement, filed a civil complaint against officials and employees of the California Department of Corrections, seeking damages for various torts.  However, the “superior court struck the civil complaint and ordered it refilled as a habeas corpus petition,” which it denied shortly thereafter.

Cox then filed a petition for writ of mandate in the Court of Appeal, “seeking to compel respondent superior court to reverse its orders striking his civil complaint and denying the putative habeas corpus petition.”  Interestingly, the Attorney General agreed the trial court had “erred in deeming the civil complaint to be a habeas corpus petition.”  The reviewing court agreed, issuing writ relief.

The Court first explained important differences between an order dismissing a civil action, which is an appealable judgment, and an order denying a habeas corpus petition, which is not appealable.  It also explained that, although a court may treat a petition for one type of writ relief as a petition for a different type, it may not treat a civil complaint as a writ petition, even if the court’s goals ostensibly were “laudable,” here relieving Cox of various technical requirements of civil litigation.  Importantly, damages are recoverable only in a civil action, not a habeas corpus petition, so by treating the complaint as a habeas petition, the trial court had foreclosed Cox from obtaining the remedies he sought.  Not everything filed by an incarcerated person is a “habeas petition,” as incarcerated persons retain the right to initiate civil actions, presumably much to the bane of court clerks everywhere.

Read the opinion:


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: