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“While law may reach some peculiar results, it ought never be silly. ”
(People v. Ritchie (1982) 130 Cal.App.3d 455, 459.)
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October 22, 2020
Dear Reader,
Each week I review several recent decisions out of the appellate courts in California, and elsewhere. I'd like to tell you about the ones that might help you get an edge in your cases and appeals. Other decisions are just peculiar. I'll tell you about those, too.
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–Tim Kowal
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New Discovery Cutoff Extensions, and Other Civil Procedure Updates
Governor Newsom recently signed SB 1146, which among other provides new Code Civ. Proc., § 599, which extends "any deadlines that have not already passed as of March 19, 2020" upon continuance or postponement of trial. That includes discovery, expert discovery, and summary judgment motions.
It also provides at Code Civ. Proc., § 2035.310 that deposition officers may appear remotely upon election of either the noticing party or the deponent.
https://lnkd.in/giXwYic
What Oral Argument on Appeals Tells You About Your Chances of Prevailing
Oral argument on appeal is often seen as the main event, especially through the client's eyes. But when you get a cold bench with few questions asked by the appellate judges, there is little to report back to the client. This new analysis gives you something to say.
Appellate attorney Kirk Jenkins has an analysis of questions asked by California appellate justices. As one might expect, questions asked of the appellant tends (somewhat) to forebode affirmance of the judgment (the appellant loses). And where there are questions asked of the respondent, that, too, tends to bode ill for the respondent (though less reliably).
https://lnkd.in/gFghfez
Appellate Reversal Rate Up, Time to Process Appeals Up, Per Cal. Court Stats Report
Some interesting information about California appellate courts from the 2020 Court Statistics Report:
- The rate of reversal in 2019 was up to 18% in civil cases, from 16% in 2018.
- About 4% of appeals are dismissed. (This should make you think about appealability and timeliness issues!)
- Last year saw the most depublished opinions in a decade. Not by a lot. But I find it noteworthy whenever the government says it does not want to hear from the public about something the government did.
- The median number of days to process a civil appeal, from filing to opinion, has increased slightly from 577 to 589.
- The last point is curious because there has been a slight downward trend in the number of appeals filed over recent years.
https://lnkd.in
Holdout Juror Ousted for Seeking Counsel About Alleged Mistreatment by Other Jurors
A holdout juror in a murder case talked to an attorney about being badgered by the other jury members. The attorney appears in court to inform the judge about the conflict. The judge removes the juror. An alternate juror is seated, and the jury returns a guilty verdict within 90 minutes.
A Sixth Amendment violation? Sixth Circuit: No. She was removed for violating the judge's order not to discuss the case with anyone, not because she was a holdout.
Wofford v. Woods, no. 18-2367 (6th Cir. Aug. 13, 2020).
20a0259p-06.pdf
Split of Authority on Inherent Power to Grant Reconsideration
The Prior Ruling Doctrine is yet another appellate trap for trial attorneys to consider when filing a motion for reconsideration. In Kerns v. CSE Insurance Group (2003) 106 Cal.App.4th 368, the First District reversed an order on reconsideration of a prior judge's ruling, which had been granted even though the motion was procedurally invalid. The court traced a split of authority in the District Courts of Appeal, some holding trial courts have jurisdiction under their inherent authority (Dist. 2 and 4), and some holding they do not (Dist. 1, 2, and 4).
Kerns held that the trial court could not even grant the procedurally invalid motion on its own inherent authority. Presumably this was because the trial court had "simply ignor[ed] the existence of th[e] prior ruling," rather than expressly correct it. But Kerns went on to observe that even had the trial court acknowledged and corrected the prior ruling, this "would completely undermine "the general rule that one trial court judge may not reconsider and overrule an interim ruling of another judge." [Citation.]"
What should the practitioner make of the court's inherent power to change its decisions at any time before judgment? Until split resolves, be mindful of the precedent in your particular appellate division.
Recovering Costs for Unused Trial Exhibits
Great news, you won your trial! Bad news, you only used half of your trial exhibits, so your client can't recover costs for the unused exhibits.
That could change. The California Supreme Court has granted review in Segal v. ASICS America Corp. for the limited purpose to resolve the split in authority over whether the prevailing party may recover costs for unused trial exhibits under Code Civ. Proc., § 1033.5. The Second Appellate District held such costs are recoverable, reasoning that the statute’s interpretation “must reflect the reality of how complicated cases are tried.”
A sound approach. A black-letter rule in either direction on this strikes me as a wrong one.
https://lnkd.in/dXW9fYX
Cal. Supreme Court Depublishes Recent PAGA Opinion
In Doe v. Regents of the University of California, the Second Appellate District held a student subject to a Title IX investigation, threatening to impose suspension for an entire academic, year was entitled to seek a preliminary injunction in the Superior Court.
The student was ultimately exonerated, and was awarded attorneys' fees under Code Civ. Proc., § 1021.5 for conferring a significant public benefit in light of the university's failure to follow its own policies.
Jeff Lewis and I covered this case on the fourth episode of the California Appellate Law Podcast, www.CALPodcast.com. Additional notes available here.
Last week, however, the Supreme Court, while denying the university's petition for review, depublished the Second District's opinion. The upshot is that other students may not use the decision against schools similarly refusing to follow their own policies in the future. The Second District had hoped: "The injunction should deter UCSB from violating its policies requiring prompt resolution of Title IX allegations, particularly where interim suspensions are issued.”
The depublication order, alas, makes this less likely. The process, as is too often the case, will remain the punishment.
Read more here.
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