Who’s In Charge During Appeal?

In In re K.M. (G051656 Nov. 20, 2015) 4/3 recently reminded dependency courts and practitioners a juvenile court lacks jurisdiction to modify a section 366.26 order terminating parental rights, even to “fix” the Agency’s defective Indian Child Welfare Act (“ICWA”) notice in order to head off an inevitable reversal.  After the parents filed their appellate briefs, rather than stipulating to a limited reversal (which presumably would have been inconvenient for the Agency’s appellate statistics) the Agency undertook the required ICWA notice, obtaining letters from tribes “declining K.M. for tribal membership.”  So armed, the Agency obtained a post-judgment trial court order to the effect the ICWA did not apply  then asked the Court of Appeal to dismiss the appeal as moot.

Before reaching its conclusion, the Court discussed the appropriate mechanism by which this type of information may be brought before the reviewing court, a topic of interest to all practitioners.  Augmentation was inappropriate because the matter was not before the trial court.  For the same reason, judicial notice did not fit the bill.  Additionally, a court cannot take judicial notice of the truth of matters in documents.  However, CCP 909 was procedurally correct as the purpose ostensibly was to show the appeal was moot.

The Court explained granting the Agency’s motion to get the information in front of the Court was “a hollow victory” because the trial court had no jurisdiction “to consider SSA[‘s] belated remedial ICWA efforts because it was in substance a collateral attack on the termination order,” prohibited by section 366.26, subdivision (I)(1), hence it was void, demonstrating the general rule that the Court of Appeal, not the trial court, has jurisdiction over an order which is the subject of the appeal is even stronger in termination of parental rights cases.



Do Not Assume No One at the Court Reads the Record

From a footnote in a tentative opinion from 4/2 (not directed at this office):

We pause here to remind counsel for XXXXX of her duties as an officer of the court, which include a duty of candor. (Bus & Prof. Code, [sec] 6068, subd. (d); Rules Prof. Conduct, rule 5-200.) When counsel writes that the court “never mentioned [the child’s] best interests,” and then cites to a page of the reporter’s transcript where the court explicitly considers the child’s best interests (“[T]he decision for [the child’s] current placement is appropriate, and it’s not in her best interest to change it”) . . .counsel breaches the duty of candor.  Similarly, when counsel writes “there is no evidence that [the child] ‘loved’ [her prospective adoptive parents] or that the ‘loved’ her, , , counsel simply misstates the record, as the social worker explicitly noted that the child “states that she loves [the prospective adoptive parents] and wishes to be adopted by them,” and that the prospective adopted parents were focused on “providing a stable, loving home where [the child] can feel valued and safe.” . .. Counsel would be well advised to adhere strictly to her professional duties, including the duty of candor, in any further proceedings before this court.

Be careful zealous advocacy does not cross the line, departing from reality, which in appeal land is found within the four corners of the record.  Someone at the Court is going to read that record, and you don’t want to be called out for flights of fancy.

Even Billionaires Have to Follow the Rules

Yesterday’s opinion concerning the Clippers’ saga, Sterling v. Sterling, B258151, will provide another in the long list of citations useful to respondents as it is notable for pointing out not just one, but three, fatal procedural errors:  failure of the appellant to cite to the record, failure to summarize evidence in favor of the prevailing party — resulting in forfeiture–, and failure to demonstrate prejudice.  A billion dollar dispute resolved in three paragraphs.  The court continues on to discuss the facts and the merits however, resulting in a successful businessman’s personal health tragedy being enshrined in California law.  Benefit to client??

How “Open” Is “Openly”?

Normally, paternity issues are hashed out in contested adoption, paternity or dependency cases.  Yesterday’s opinion in Stennett v. Britel, G049161, sheds light on a little known corner of the Probate Code dealing with similar questions.  Although apparently-wealthy Amine Britel had fathered A.S. (born in 2001),  he did not want to be a father because he felt fathering a child out of wedlock would shame him, (although abandoning any semblance of parental responsibility seemingly would not cause any similar shame).  Mother, Stennett, apparently was content with this situation for years, never seeking support or a paternity determination, although contacting him in response to the child’s inquiries in 2006, only to be rebuffed, but still doing nothing to establish paternity or obtain support.

This changed in 2011 when Amine was killed while bicycling, dying intestate and prompting Stennett to seek to have A.S. declared Amine’s heir, which was rejected by the trial court after a finding Amine did not “opening hold out the child as his own” as required by Probate Code section 6453(b)(2).   The Court of Appeal affirmed, sorting through several dictionary definitions and very few case authorities to conclude “openly” holding out a child as one’s own required something more than passing acknowledgment.  Central to the Court’s decision was the Legislative intent that probate matters be resolved promptly and the decedent’s intent be carried out.  This is different from portions of the Family Code and case law in which the Legislative intent is to ensure provision for a child’s care.  Since a parent may disinherit a child, it is not unreasonable to conclude that a biological father who never has announced to all the world that he is the father, never intended a portion of his estate pass to that child.

While the Court’s ruling appears correct, it does seem a poor result in our modern age where, as here, DNA demonstrated without any doubt Amine was the father, and the child is still a minor, presumably with some need for support.  Justice Fybel recognizes this in his concurrence calling for Legislative action.  Moreover, there is room for disagreement in parsing the dictionary definitions and a decent Equal Protection argument.  We will see if this case piques the Supreme Court’s interest it certainly should.  Although mother Stennett can be charged with sleeping on her rights, certainly minor A.S. cannot, and it is A.S. who ultimately is injured.

Practically, however, the case is yet another example of the misguided desire to give “space” in the belief folks “will come around.”  Sometimes they just don’t. So, moms, get ye to the courthouse and file that paternity action, for your child’s sake if not for your own.



Is Your Appeal up to Standards?  

Two recent unpublished cases highlight the need to identify the proper standard of review for your appeal.  In Curtesy Oil Co., Inc. v. Basidiq (Oct. 23, 2014) F068069 the Court rejected a claim the evidence at trial had been insufficient to support a factual finding because the claim was improbable:

Findings of fact as to witness credibility are difficult to challenge successfully.  Such findings are given great deference by appellate courts and appellants are confronted with one of the most demanding tests for establishing error.  Specifically, an appellate court will reject a credibility finding only if the testimony is incredible on its face, inherently improbable or wholly unacceptable to reasonable minds.  (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 786; Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201 [a trial court’s credibility findings cannot be reversed on appeal unless that testimony is incredible on its face or inherently improbable]; see People v. Jones (2013) 57 Cal.4th 899, 963-964 [testimony of a single witness is sufficient to support a conviction unless the testimony is physically impossible or inherently improbable].)  Thus, showing testimony was merely improbable is insufficient to establish a credibility finding was erroneous.  (Consolidated Irrigation Dist. v. City of Selma, supra, at p. 201.)  Instead, “‘[t]he evidence must be physically impossible or obviously false without resorting to inference or deduction.’ [Citation.]”  (Ibid.)

In this appeal, Basidiq’s opening brief does not refer to the specific tests for overturning a trial court’s credibility finding.  Instead, Basidiq refers to the rule that “a trier of fact may not indulge in inferences rebutted by clear, positive and uncontradicted evidence.  [Citation.]”  (Fullerton Union High School Dist. v. Riles (1983) 139 Cal.App.3d 369, 383.)  In Basidiq’s view, the trial court inferred Olesen’s testimony was credible and her testimony was not believable despite the clear, positive and uncontradicted evidence that the alleged gasoline deliveries were not made.  The evidence Basidiq refers to is the unsigned delivery receipts for the 13 fuel shipments. 

As to the trial court’s finding that the testimony of Olesen was credible, we will defer to that finding because the matters asserted in that testimony were not physically impossible or obviously false.  (Consolidated Irrigation Dist. v. City of Selma, supra, 204 Cal.App.4th at p. 201.)  For instance, it is physically possible that gasoline was delivered by Curtesy Oil without the delivery person obtaining a signature on the delivery receipt.  The primary consequence of this court’s acceptance of the finding that Olesen’s testimony was credible is that testimony becomes part of the evidence evaluated to determine if substantial evidence supports the trial court’s findings that Basidiq did not pay for $29,784.85 worth of fuel delivered by Curtesy Oil.

So as long as some reasonable inference can be drawn which supports the factual finding, the Court of Appeal will not disturb the judgment. Contrast this with Zeiny v. Good Samaritan Hospital (Oct. 23, 2014) H039977, in which the trial court had granted the defendant’s motion for judgment on the pleadings in a case in which Mr. Zeiny, who had attempted suicide and was being treated for depression, believed he was being targeted by “CIA renegade individuals,” who were conspiring to terminate his employment.  He further believed a doctor employed by defendant hospital was in on the conspiracy and had offered the plaintiff a “deal” on behalf of the CIA agents to get Zeiny disability benefits if he would leave the country.  Plaintiff alleged hospital personnel asked the plaintiff questions about these CIA agents, triggering anxiety, which then caused him to leave the hospital, after which he attempted suicide again.

In opposition to the hospital’s motion for judgment on the pleadings, Zeiny claimed he had been wronged “‘by the interference of the CIA renegade agent’s with Plaintiff’s medical treatment.'”  The trial court granted the hospital’s motion on the basis Zeiny was asserting someone else was the wrongdoer.

The Court of Appeal reversed, noting the claim was actually whether or not the hospital had breached its duty of care by questioning the patient about “the renegade CIA agents,” conduct which to the Curt seemed “relatively innocuous.”  However, the Court noted whether this constituted a breach was a matter for expert medical testimony, a factual issue which could not be resolved at the pleading stage.

So in Curtesy Oil a conclusion which may have been improbable was affirmed while in Zeiny an assertion which appeared on its face to be improbable, i.e., the hospital had breached its duty by questioning a patient concerning his apparent delusion, was the basis for a reversal.  The key is the stage of the proceeding and the standard of review, which must be the starting point for analyzing any potential appeal.








Don’t Hold Back

We recently represented the respondent in an appeal to the appellate division of the superior court. When the appellant tried to raise a new issue in the reply brief, we objected, and the Court agreed:

In its opening brief, Plaintiff Yellowbook only argued that the trial court erred by granting relief from default because the motion to set aside was filed more than six months after entry of default. However, Stone Defendants correctly responded that it also sought mandatory relief and for such relief, the six month time frame runs from entry of judgment. (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 296-297.) While Plaintiff Yellowbook argues in reply that mandatory relief does not apply, the Court will not consider that point, as Plaintiff Yellowbook failed to show good reason for failing to raise it in its opening brief. (See Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322.) The trial court’s grant of the motion to set aside the default and default judgment is affirmed.

So don’t hold something back until your reply brief, thinking you will gain some advantage by having the “last word.” The Court probably will just ignore your late claim.

No Help for Pro Per Appellant

In an unpublished case yesterday from San Diego, In re Marriage of Fields & Cook (D063832), the Court not only reiterated the burdens faced by all appellants but also reminded pro per appellants the Court will not do their job for them:

As we have noted, an appellant has the burden of providing an adequate record and of showing that error occurred and that it was prejudicial.  (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)  Being self-represented does not reduce these burdens.  (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)  In appeals challenging discretionary trial court rulings, an appellant has the burden of making a clear showing of abuse of discretion.  (Hernandez v. City of Encinitas (1994) 28 Cal.App.4th 1048, 1077.)  The appellate court is not obliged to search the record to find support for the appellant’s contentions.  (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [noting one “cannot simply say the court erred, and leave it up to the appellate court to figure out why”].)  Court rules also require that each point be stated “under a separate heading or subheading summarizing the point.”  (Cal. Rules of Court, rule 8.204(a)(1)(B).)

Cook does not state his arguments in separate headings nor does he identify specific instances of prejudicial error by the family court.  In addition, at the RFO hearing in the family court, Cook’s counsel did not raise many of the issues Cook raises in propria persona on appeal, including Cook’s claim of judicial bias.  As such, Cook has forfeited his right to appeal on a number of issues.  (See Telles Transport, Inc. v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167.)  We nonetheless will exercise our discretion and reach the merits of the issues he raises, where appropriate.

The Court did discuss several of the issues Cook raised, possibly in an attempt to forestall further litigation in the trial court, but rejected them all.  Pleas of “I’m not a lawyer, you Honor.  I’m doing the best I can,” and attempts to convince a Court of Appeal to rule in your favor because you have been wiped out financially by the opposition, requiring you to appear pro per, are high speed train to a loss.  If your case is worth appealing, it is worth finding an appellate attorney to do it correctly.  Failing that, spend some long hours in the law library and on-line reviewing practice guides so you can comply with the basic appellate rules and practices.

The Second District in Los Angeles has helpful information:


Ford Faux Pas

Perusal of unpublished cases can be enlightening.  Bettenhausen v. Ford Motor Company (C071978) April 1, 2014, shows us it is not just the “little guy” who can benefit from specialized appellate expertise. There, Ford appealed from an order awarding $391,433.22 in attorney fees in a “lemon law” action but, according to the opinion, had not filed a written opposition in the trial court, although trial counsel did seek a continuance to file that opposition.  Ford then secured new counsel, who first moved to vacate the award, but after filing a notice of appeal.  The trial court denied that motion as it had lost jurisdiction (CCP 916), but that ruling was not attacked in the Court of Appeal.

In turning to the merits of the appeal from the attorney fee order, the court’s introduction foreshadowed the result:  We presume court orders are correct. [Citations.] As the appellant, Ford bore the burden to provide a record supporting its claims of error.  “To the extent the record is incomplete, we construe it against [Ford].” [Citation.]

The Court explained there was no reporter’s transcript of the hearing on the motion for attorney fees, and it was Ford’s duty (as the appellant) to provide a settled statement to support its appellate claims. “It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error. [Citations.] Here, defendants should have augmented the record with a settled statement of the proceeding. [Citations.] Because they failed to furnish an adequate record of the attorney fee proceedings, defendants’ claim must be resolved against them.”  [Citation.]

The Court went on to reject Ford’s claim the order could be deemed “excepted to,” finding the appellant was confusing “appealability with reviewability,” as well as adding in brief comments about the jurisdiction of a trial court to rule on a motion to vacate after a notice of appeal had been filed and reiterating new issues could not be raised on appeal.

Ford’s appellate counsel may have been attempting to make the best of a bad situation which was not remedial.  Who knows without reading the record?  The Court of Appeal did indicate a settled statement procedure was available, which increasingly will be necessary in these days of hearings sans reporters.  The other point here is that procedure matters, and litigants–from powerful corporations on down the most humble– can benefit from specialized appellate expertise so as to put your best foot forward and attempt to make that silk purse out of your sow’s ear of a case.

Review Your Standard of Review

In People v. Durst, C071233, March 28, 2014, the Third District published a reminder of the importance of the standard of review, taking counsel to task to the extent of ruling a Miranda argument forfeited, although eventually addressing the merits (doubtless to forestall a potential IAC claim).  The Court’s discussion did not bode well for appellate counsel, beginning:

In arguing in his opening brief that the statement should have been excluded, defendant disregards the trial court’s crucial findings concerning the facts. Most importantly, defendant relies on a transcript of his statements that the trial court expressly found to be unreliable. This appellate strategy forfeits review of the issue.

Review of a trial court’s ruling concerning the admissibility of a defendant’s statement is a two-part analysis. “[W]e accept the trial court’s factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence. [Citation.] But we determine independently, based on the undisputed facts and those properly found by the trial court, whether the challenged statements were legally obtained. [Citation.]” [Citation.]

When the appellate standard is substantial evidence review, as it is here with respect to the trial court’s factual findings, the appellant bears the burden of showing that no substantial evidence supports the challenged factual findings.  [Citations.] Failure to set forth the evidence most favorable to the factual findings – or, as in this case, to acknowledge that the factual findings even exist, along with supporting evidence – results in forfeiture of the contention that substantial evidence does not support the factual findings. [Citation.]

The Court goes on to point out the brief relied on a “nonexistent circumstance” since the trial court had specifically rejected a fact asserted at trial, recounting the trial court’s various factual findings and rulings contrary to the defendant’s position at trial, concluding: “The effect of defendant’s appellate strategy is forfeiture, not persuasion.”

It is one thing to argue the trial court proceedings in the most favorable possible light, looking for chinks in “substantial evidence” armor.   But the emphasis must be on possible, with “possible” considered in the context of the relevant standard of review.  Otherwise you may find yourself explaining to the Court why your argument should not be forfeited, and then explain to the paying client why they should pay you for an argument the Court refused even to consider.







Hobby Lobby lesson

Appellate practitioners can glean an important lesson from yesterday’s Hobby Lobby argument: Beware of raising arguments which clearly are not going to be productive.

The government’s merits brief led off with the assertion: “RFRA does not grant free-exercise rights to for-profit corporations.” Although standing arguments can result in a “home run” in the sense the other side is kicked out of court for procedural reasons, Solicitor General Verrilli ended up spending an inordinate amount of time responding to questions concerning his standing argument such as:

Justice Scalia: . . .  There is not a single case which says that a for profit enterprise cannot make a freedom of religion claim, is there?

Although appeals generally are decided based on briefing, rather than oral argument, you don’t want to waste your limited argument time on loser issues either.  Once you brief an issue, the Court can hammer you on it all it wants, detracting from the limited time you have for your main points.

transcript here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf

for briefing, see Becket fund site: