In Search of Administrative Finality

Jackson v. Board of Civil Service Comm’rs of the City of L.A., No. B328414 (D2d7 Feb. 8, 2024)

This one is pretty deep into the weeds in the intersection of administrative law and appellate jurisdiction. But since I have a case before the Supreme Court in that same neighborhood, it’s interesting to me, at least.

Petitioner is an LAPD Officer who got disciplined for being late to a shift under what sound like some not so great circumstances. He was suspended from duty for 10 days. He challenged the suspension administratively, and when he lost, filed an administrative appeal, which he also lost. 

Officer filed a petition for writ of administrative mandate in LA Superior, raising sufficiency of the evidence and due process issues regarding the administrative process because LAPD’s justification for the discipline apparently evolved over the course of the administrative hearings. The superior court found that the evidence supported three of the four charges but that the administrative process had failed in some respects to appropriately account for Petitioner’s due process rights as a public employee. It remanded to the administrative system to address that issue. Petitioner appealed.

A threshold question on appeal is whether the trial court’s remand to the administrative process counts as a “final judgment” that can be appealed under Code of Civil Procedure § 904.1(a). That would seem to be an easy question because there’s a 2017 Supreme Court decision that held that a judgment that remands to the agency is sufficiently final to be appealable. Dhillon v. John Muir Health, 2 Cal. 5th 1109 (2017). But the Court here finds Dhillon to be distinguishable. 

As the Court sees it, Dhillon found finality for two reasons. First, in Dhillon, the superior court’s remand decided everything before it. It didn’t reserve any issues for itself during the remand. That’s true here as well.

But Dhillon’s second basis for finding finality had to do with the particular procedural posture of that case. There, a hospital’s administrative review board was reviewing the discipline of a physician. The review board determined that the physician was not entitled to receive a hearing. On a writ of administrative mandate, the superior court disagreed and remanded for the hearing to be held. In that case, the Supreme Court explained, if the remand order weren’t appealable, the hospital would have no avenue to review the superior court’s order that a hearing was required. 

The Court here finds that to be a distinguishing factor. Here, following the remand, the Officer will be able to file a new or renewed writ petition, and, should that be decided against him, appeal any adverse ruling subsumed into a post-remand judgment. See generally Code of Civ. Proc. § 906 (appeal of final judgment permits review of any intermediate ruling, provided that ruling substantially affected the appellant’s rights). That includes issues affirmed by the superior court on this petition. The Court relies on a pre-Dhillon Court of Appeal opinion—Kumar v. National Medical Enterprises, Inc. (1990) 218 Cal. App. 3d 1050—that makes that very point. As the Court notes, although there is some superficial tension, the Supreme Court distinguished Kumar on the same ground the Court here is distinguishing Dhillon. In this case and in Kumar, the petitioner whose case is administratively remanded will ultimately have an opportunity to appeal anything adversely decided.

The Court finds all this to be consistent with federal practice, which, although not identical to California’s, nonetheless applies analogous principles in assessing the finality of administrative action for appeal. In doing so, the Court notes that in this context, the agency sometimes has the right to appeal a remand order, but the affected individual, almost never does.

Finally, although the Court has the discretion to treat a premature appeal as a writ petition, it declines to do so here. This is not a case of great public interest. It is, instead, a largely fact-bound question regarding the manner in which the Officer was disciplined. So the Officer needs to wait for a ripe appeal.

Appeal dismissed.

Dismissed Jones Act Claim Is Still a SLAPP

Curtin Maritime Corp. v. Pacific Dredge & Construction, LLC, No. D078217 (D4d1 Mar. 22, 2022)

This is an anti-SLAPP appeal based on a theory that a competitor’s false certification to the Coast Guard to obtain a certification under the Jones Act* that its vessel was U.S. made violated the UCL. Defendant took an appeal after it lost the motion in the trial court. But the Plaintiff tried to dismiss the complaint while the appeal was pending, claiming the dismissal rendered the appeal moot. 

Not so. An appeal automatically stays trial court proceedings for any matter embraced or affected by the appeal. Code Civ. Proc. § 916. Since the validity of a complaint is embraced by an anti-SLAPP appeal, the automatic stay precluded the dismissal. And in any event, the appeal isn’t moot because a reversal will permit the defendant to claim fees on remand under § 425.16(c).

On the merits, on prong 1, the crux of Plaintiff’s claim entailed an allegation that Defendant submitted a false application for certification to the Coast Guard. That’s protected activity. On prong 2, the claim was preempted by the Jones Act, which the court finds gives the federal government the exclusive authority to determine what vessels satisfy the Jones Act.

Reversed.

*The Jones Act requires commercial vessels that sail in wholly domestic commerce—between two U.S. ports—to be manufactured domestically.

Gettin' Judgy 'Bout Judgments

Sanchez v. Westlake Services, LLC, No. B308435 (D2d7 Jan. 18, 2022)

This one is a little weird. Parties settle a CLRA case. The settlement lets Plaintiff apply for costs and fees. The trial court awards costs but denies fees. Plaintiff files a notice of appeal from the order denying fees. As a jurisdictional grounds, Plaintiff cites Code of Civil Procedure § 904.1(a)(2), which permits an appeal of an order entered after an appealable final judgment. Ordinarily, that’s the provision that applies to fee award appeals, because ordinarily, fees are litigated post-judgment, and then added to the judgement post-entry as part of a cost award. See R. Ct. 3.1700(b)(4), 3.1702. You wind up with two appealable orders, which then generally get consolidated on appeal. 

But here, because of the settlement, no judgment had entered. There was just a fee order, which is not, in itself appealable. And if it’s not entered after judgment, it’s not appealable under § 904.1(a)(2). After the case was fully briefed, the Court of Appeal pointed that out. In response, Plaintiff tried to argue that, in reality, her appeal was actually from a judgment of dismissal, which had been entered by the court nine months after the denial of the fee award, and indeed, two months after she filed her opening brief in the appeal. Relying on some cases that interpret Rule of Court 8.104(d)(1) and (2)—which permit the court to deem certain premature notices of appeal filed as of the date of entry of judgment—Plaintiff argues that her case should be treated as an appeal from the dismissal.

But the Court of Appeal isn’t having it. This case is not a mine-run 8.104(d) case where someone appeals an order entered slightly before the entry of a formal judgment on it. Indeed, the Court views Plaintiff’s statement of jurisdiction to be misleading, as it did not even try to explain the basic fact that no judgment had been entered. Nor did Plaintiff explain how or why she made a mistake. Nor did she augment the record when the judgment of dismissal was entered by the trial court. It was not until the Court pointed out the flaw that she tried to come up with a post-hoc rationale for appealabilty. That is not good enough.

Appeal dismissed.

And there, yet again, is the #1 lesson about appellate practice that every trial court practitioner needs to know. It might not seem very significant that, after the court or a jury has actually decided everything on the merits, the judge still needs to sign a one sheet that just reiterates the final terms of victory or defeat. But the entry and timing of a judgment are of acts of monumental procedural importance. A judgment entered too early, or too late, or not at all, can cause enormous, unforeseeable, and often irreparable problems in post-trial motions or on appeal. And because these problems often manifest long after the case is no longer the trial court’s problem, the nuances can be lost on the trial judge and his or her clerk too. So, when the time comes, you need to pay incredibly close attention to the entry of judgment and intervene if and when necessary to keep things on the right track.

Time to Appeal Appealable Order Runs from Minute Order

Marshall v. Webster, No. C088240 (D3 Aug. 27, 2020)

An order granting an anti-SLAPP motion is appealable under Code of Civil Procedure § 425.16(i). Like other appealable orders, the order is appealable when made--there doesn’t need to be some further formalization before the right to appeal is ripe. So Rule of Court 8.104’s 60-day clock to file a notice of appeal starts to run when the clerk mails the order. 

Here, the trial court granted the motion in a minute order, which was promptly served on the parties by the clerk. Then the defendant submitted a proposed order granting the motion, which the court ultimately signed about six weeks later. But as the Court of Appeal explains, the clock started from the first ruling. The court unequivocally granted the motion in the first order, which made it appealable. There was no need for further proceedings or a more formal order by the trial court. Which means this appeal was filed too late.

Appeal dismissed.

JCCP Coordination Submission Tolls Three- and Five-Year Rules

Fid. Nat’l Home Warranty Co. Cases, No. D074161 (D4d1 Mar. 20, 2020)

This is an appeal of a pair of cases that were dismissed under the five- and three-year rules in Code of Civil Procedure §§ 583.310 and 583.320. 

There’s a threshold issue regarding the timeliness of the notice of appeal. The trial court entered an order dismissing the cases on December 15, 2017. But it did not enter judgments until March 7 and April 2, 2018. Plaintiffs filed a consolidated notice of appeal on May 1. There’s no question that the appeal is timely if the March 7 and April 2 judgments are the only final appealable judgments in the case. See Cal. R. Ct. 8.104(a)(1)(can file notice of appeal, at minimum, 60 days from entry of judgment). But if the December 15 dismissal order is itself a judgment, then the appeals are too late.

It all comes down to the interplay between Code of Civil Procedure §§ 581d and 581(k). Section 581d says an order dismissing a case needs to be signed by the court and filed in the action. When the order takes that form, it constitutes a final judgment. But § 581(k) says a certified class action can’t be dismissed unless and until notice approved by the court has been given to the class and the court orders a dismissal. Here, that issue wasn’t raised until after the entry of the December 15 order. The Court ultimately approved the form of notice in one case and found that notice was unnecessary in the second case because no class had been certified. 

Until the notice issues were resolved, § 581(k) prohibited the cases from being dismissed. Thus, the Court of Appeal holds that the December 15 order cannot be treated as a final judgment under the authority of § 581d. Only an order issued after the § 581(k) prerequisite had been satisfied, and which conformed to formalities in § 581d could count as a final judgment. That being the case, the judgments entered on March 7 and April 2 were the real judgments in the cases, and thus the appeals were timely taken.

On the merits, the cases were put on ice for 135 days while a coordination judge decided whether cases should be rolled into a coordinated JCCP action. A plaintiff is entitled to tolling of the 3 and 5 year limits when it is impossible, impracticable, or futile” to bring a case to trial. § 583.340(c). And the Rules of Court pertaining to JCCP proceedings specifically say that a trial can’t be commenced with the coordination motion is pending. Cal. R. Ct. 3.515(i). Thus, notwithstanding a split of authority on the question, the court finds that plaintiffs were entitled to another 135 days of tolling and that the trial court abused its discretion in failing to count it. 

That helps one case but not the other. One case was subject § 583.310’s five-year rule. The 135 days of tolling was enough to take that case out of the statute. So that’s reversed. 

But in the other case, there had been a prior reversal on appeal. So that case was subject to § 583.320’s three-years post remand rule. The 135 days of tolling was not enough to get that case within the three years. And the trial court didn’t abuse its discretion in declining to permit tolling based on other impracticalities in getting to trial claimed by plaintiffs, such as budgetary constraints, plaintiff’s claims of diligent prosecution, or defendant’s purported delays in complying with discovery. So that’s affirmed.

Reversed in part.

Enjoining Arbitrations

Brooks v. Amerihome Mortgage Co., No. B298132 (D2d6 Apr. 8, 2020)

As is required by the Labor Code Private Attorney General Act, Plaintiff here gave notice to the Labor and Workforce Development Agency that he intended to bring a PAGA claim against his Employer if the LWDA declined to. During the waiting period for LWDA to act, Employer served an arbitration demand. Once the period ran, Plaintiff sued. Employer moved to stay the case and Plaintiff sought a preliminary injunction preventing the arbitration. The trial court denied the stay and granted the injunction.

On the merits, this one is pretty clear. PAGA claims—which are brought in a semi-qui tam posture on behalf of the state—aren’t arbitrable. Plaintiff here brought only a claim under PAGA. Therefore, his claim couldn’t be sent to an arbitration. Employer argued that the complaint also sought individual remedies under Labor Code for lost wages, and that such claims are arbitrable. But that’s not what the complaint said.

So Plaintiff showed a likelihood of success. And being forced to arbitrate a non-arbitrable claim is the kind of irreparable injury that would permit an injunction.

Affirmed.

This all seems pretty cut and dry. But what if Plaintiff had lost in the trial court? Pretend, for the moment that these aren’t PAGA claims. The trial court’s grant of a stay pending arbitration is not an appealable order. But Plaintiff sought an injunction, and the denial of an injunction generally is. Code Civ. Proc. § 904.1(a)(6). 

So could Plaintiff have appealed that loss? Probably not. Notwithstanding § 904.1(a)(6), California courts have held that “an order refusing to enjoin arbitration is tantamount to an order compelling arbitration,” and thus not appealable under § 1294, the statue that limits appealability to denials of motions to compel arbitration. See Melchor Inv. Co. v. Rolm Sys., 3 Cal. App. 4th 587, 592 (1992).

Why Don't YOU Meet and Confer with Luke Dumas...

Dumas v. L.A. Cnty. Bd. of Supervisors, No. B288554 (D2d4 Feb. 18, 2020) 

This pro se civil rights case got dismissed after plaintiff failed to show for his depo a couple of times. Plaintiff raises a host of issues on appeal. (We know how that ends, right...) There are two procedural ones.

First, Plaintiff tried to disqualify the trial judge by filing a statement of disqualification under Code of Civil Procedure § 170.3. The trial court struck it under § 170.4(b) for being untimely and for failing to state a legally adequate basis for disqualification. A DQ order, however, isn’t appealable from a final judgment. The only way to challenge it is to take a writ, which needs to filed within ten days of the service of the order. Plaintiff here didn’t take a writ. So he can’t challenge the striking on appeal.

Second, prior to the dismissal, Defendant successfully demurred to some of Plaintiff’s claims without conducting a telephonic or in person meet and confer, as required by § 430.41. But § 430.41(a)(4) specifically states that a failure to meet and confer isn’t a basis to grant or deny a demurrer. So while the trial court could have sent the parties back to talk more before it decided the motion, its disinclination to do so has no meaningful effect on the appeal.

Affirmed.

Liberal Construction Carries the Day

K.J. v. L.A. Unified Sch. Dist., No. S241057 (Cal. Jan. 30, 2020)

An Attorney who represents a Kid suing LAUSD got held in contempt by the trial court for obstructing a court-ordered psychiatric exam of his client. The contempt citation was $750 and a day in jail. Attorney took a writ on the ruling. But while that was pending, the trial court then tacked on $16,111 of the LAUSD’s fees as a discovery sanction, payable by Attorney alone. The Court of Appeal granted a writ on the contempt, after which the trial court vacated that order. But it let the discovery sanction stand.

A sanction award over $5,000 is an appealable order under Code of Civil Procedure § 904.1(a)(11). Attorney’s attorney filed a notice of appeal. But the notice identified the applellant as the Kid, not the Attorney. LAUSD moved to dismiss the appeal, arguing that Kid had no standing because only Attorney got sanctioned. Court of Appeal agreed and dismissed the appeal for lack of jurisdiction. The Supreme Court granted review.

The timing of a notice of appeal is a strict requirement. Just one day late, you still lose. But the contents of a notice of appeal are liberally construed. The Court of Appeal thought the rule was not so liberal as to permit reading in a different, unnamed appellant. 

But the Supreme Court disagrees. The notice expressly identified the sanctions order, which everyone could tell imposed sanctions on Attorney, not Kid. The trial court arguments focused on the court’s authority to sanction attorney, not kid. And LAUSD didn’t argue it was somehow confused or mislead by the identification of the wrong appellant. Under the circumstances, it is permissible to read the notice as making an appeal on Attorney’s belhalf.

Court of Appeal reversed.

Insurer Can Appeal No-Show Loss in Small Claims Case

Pac. Pioneer Ins. Co. v. Superior Court, No. S241057 (Jan. 30, 2020)

In a small claims case, Code of Civil Procedure § 116.710(c) permits both a defendant and his or her insurer to appeal a money judgment. But § 116.710(d) says a that defendant who failed to appear can’t appeal. Which begs the question: Can the insurer appeal if the defendant doesn’t show?

The answer is yes. The bar on appealing by defaulting defendants does not apply to their insurers. The statutory structure makes that reasonably clear. And in the event of any doubt, the legislative history explains that the point of giving insurers standing is that sometimes an insured defendant might take the moral hazard and not bother to defendant a small claims case.

Reversed.

Waitin' on Nebraska

Warwick Cal. Corp. v. Applied Underwriters, Inc., No A155523 (D1d4 Jan. 7, 2020)

This is a multi-party insurance coverage dispute where most of the claims are stayed on non conveniens grounds pending a litigation in Nebraska. But the Court declined to stay the case for two California-based plaintiffs. It held a bench trial on their claims, ultimately issuing a statement of decision against them. But the Court did not enter a judgment.

Plaintiffs appealed anyway. They shouldn’t have done that because a statement of decision is not an appealable order. It is true that the trial court could have entered a partial judgment, notwithstanding the stay of the other plaintiffs’ claims. See Code Civ. Proc. § 578; Cal. R. Ct 3.1591. But it didn’t, apparently because there was a possibility that the Nebraska litigation could have some potential effect on this case.

Appeal dismissed.

When Serving by Mail, Use a Stamp!

Dalessandro v. Mitchell, No. B293472, D2d8 (Jan. 3, 2020)

This is a discovery dispute in a judgment collections case. The underlying dispute isn’t super clear, but it appears that Creditor engaged in some sketchy stuff in judgment debtor discovery. Stuff like filing a phony proof of service and a false declaration in support of a motion to compel. Creditor’s counsel got sanctioned, for about $3,500.

There’s a question of appealability under the long-standing Fox Johns / Macaluso split regarding when post-judgment discovery orders are appealable under Code of Civil Procedure § 904.1. The Court of Appeal takes the Fox Johns side of the ledger and finds the order isn’t appealable, but takes the case as a writ anyway.

On the merits, the Court finds that debtor was never properly served with the discovery at issue. Among other things, there’s no evidence that the purportedly mailed discovery had a stamp on it. Since you can’t properly compel responses to improperly served document demands, the court was authorized to issue a sanction under Code of Civil Procedure § 2031.300(c). The fact that the court didn’t make an express finding of a lack of substantial justification did not render the sanction flawed. Instead, the statute requires the court to find substantial justification if it does not issue the sanction. In the absence of such a finding, the statute makes the sanction mandatory—“the court shall impose a monetary sanction . . . .”

Affirmed.

There Must Be Jurisprudence...

Lacayo v. Catalina Rest. Grp., Inc., No. E069833 (D4d1 Aug. 1, 2019)

Not sure why this was published. Two pretty basic points: (1) When a court partially grants and partially denies a motion to compel arbitration, only the denial is an appealable order, because that is what the statute says; and (2) when the arb clause has a carve out for unfair competition claims, unfair competition claims are not arbitrable.

Affirmed.

On Appealablity

Donohue v. AMN Servs. Inc., No. D071865 (D4d1 Dec. 10, 2018)

The Court of Appeal here affirms a summary judgment for the defendant in a wage and hour case. Something about time clock rounding.

But the interesting procedural issue is the Court’s refusal to consider on appeal plaintiff’s post-judgment ex parte motion to strike the summary judgment. The court goes at this a few different ways, and some of them seem a little shaky. But maybe that’s because the law itself is kind of shaky.

Taking an Appeal of Third Party Arbitration Discovery

Uber Techs., LLC v. Google, Inc., No. A153653 (D1d3 Oct. 10, 2018)

The California Arbitration Act permits arbitrators and arbitral bodies to issue subpoenas. See Code Civ. Proc. § 1282.6. But a non-party that gets a subpoena issued out of an arbitration has never consented to having a private party adjudicate its rights. So, as the California Supreme Court has made clear, the nonparty can take the matter to a superior court and file a special proceeding for a de novo review of any order compelling discovery. See Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P., 44 Cal. 4th 528 (2008). Which is what happened here. 

The Macaluso/Fox Johns Paradox: Five Years Later

Fin. Holding Co., LLC v. The Am. Inst. of Certified Tax Coaches, No. D072910 (D4d1 Nov. 29, 2018).

Creditor sought judgment collections discovery against Debtor’s Employer, asking for a broad swathe of business, tax, and bank records. When Employer balked, Creditor moved to compel and the trial court granted its motion. Employer appeals. 

Threshold question is whether the order is appealable as an order entered after an appealable judgment under Code of Civil Procedure § 904.1(a)(2). Cases are not consistent about whether post-judgment discovery orders against third parties are appealable under that statute. Indeed, as I pointed out way back in 2013, and again last year, this very court issued contradictory opinions on the issue within six days of each other. 

After reviewing the statutory text and extensive case law with its various splits of authority, the Court here sides in favor of appealability. The order against Employer was a final order as to the Employer—all that was left was for Employer to comply or refuse—which fits in within the Supreme Court’s general four-element test for appealability under § 904.1(a)(2).

On the merits, judgment collections discovery against third parties is addressed by § 708.120. It is conditioned on a showing that the third party has possession or control of property in which the debtor has an interest or owes a debt to the debtor worth more than $250. Discovery is limited to information about that property or debt. The statute does not permit “any and all documents” discovery like Creditor served on employer here. Moreover, contrary to Creditor’s arguments, various other statutes in the Code of Civil Procedure do not broaden third party collections discovery beyond what is permitted by § 708.120. 

Reversed.

A Partial Final Arb Award Is Not Really Final

Maplebear v. Busick, No. A151677 (D1d2 Aug. 21, 2018)

California state courts generally only have jurisdiction to vacate or confirm arbitration awards when they are final. Under Code of Civil Procedure § 1283.4, that means the award “include[s] a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.” It’s basically the equivalent of the one final judgment rule for taking an appeal under § 904.1.

The Joys of § 425.16(i)

Cent. Valley Hospitalists v. Dignity Health, No. A148742 (D1d2 Jan. 9, 2018)

The complaint in this case was crappy. So crappy it wouldn’t hold up to a demurrer. Practically the only thing it was specific about was that it disclaimed being directed at any anti-SLAPP-worthy activity. But defendant filed both a demurrer and an anti-SLAPP motion anyway. The demurrer was granted, with leave. But the trial court denied the anti-SLAPP without prejudice, expressly stating that Defendant could bring a new anti-SLAPP against a better fleshed out complaint, if merited. Defendant, however, didn’t wait to SLAPP the new complaint. Instead, it took an appeal, as it could as a matter of right.

The Court of Appeal isn’t pleased. Defendant managed to waste 22 months with a stupid appeal of an anti-SLAPP motion it could have more meaningfully directed to a better complaint. Moreover, the complaint here, crappy as it was, did not state claims that arose from protected conduct. It indeed disclaimed that it did. So this appeal was a worthless waste of time. But the Court here declines to award any monetary sanctions and finds it sufficient to browbeat Defendant, mostly because Plaintiff didn’t really ask for them.

Affirmed.

Attachment 101

Santa Clara Waste Water Co. v. Allied World Nat’l Assurance Co., No B279679 (D2d6 Dec. 20, 2017)  

To obtain a pretrial writ of attachment, the plaintiff needs to make an evidentiary showing of the “probable validity” of its claims. Code Civ. Proc. §§ 484.090(a). I.e., it must be “‘more likely than not’ [that] the plaintiff will obtain a judgment on that claim.” § 481.190. An order granting an attachment is immediately appealable. § 904.1(a)(5). The Court here affirms appeal of a granted writ of attachment, because the plaintiff did, in fact, show probable validity of several of its claims.

Affirmed.

Can You Toll Your Own Death Knell?

Cortez v. Doty Bros. Equip. Co., No. B275255 (D2d7 Sept. 1, 2017)

This case presents but doesn’t resolve some pretty complicated questions about appealability and the death knell doctrine.

Where's Your Interim Award Now, Flanders...

Kaiser Foundation Heath Plan v. Superior Court, No. B272284 (D2d7 Jul. 31, 2017) 

This is a very complicated-seeming healthcare reimbursement litigation between some Hospitals and an Insurer. The parties ultimately agreed to arbitrate the dispute. A big issue in the arbitration was whether some of Hospital’s claims were preempted by provisions of the Medicare Act. The arbitrator found they were not and issued a “Partial Final Award” saying so.

Insurer asked the superior court to vacate the award. But instead, the superior court confirmed it. Insurer now appeals.

But that’s dead end.