Defensive Non-Appeals

Francis v. City of L.A., No. B301021 (D2d1 Jul. 22, 2022)

The City of L.A. won a jury verdict in a retaliation case brought by a forensic criminologist with the LAPD. At the close of Plaintiff’s case the City had moved for nonsuit, which the trial court denied. Plaintiff appeals on some instructional issues. In response, the City argued, among other things, that the non-suit should have been granted.

Plaintiff argues that the City needed to cross-appeal to make that argument. But that’s not right. The denial of a nonsuit is not appealable, and the City couldn’t take an appeal from the judgment, which was in its favor. It was not a “party aggrieved.” Code Civ. Proc. § 902. But what the City can do is raise a nonappealable interim issue like a denied non-suit to show the absence of prejudice arising from an error asserted by the appellant. See § 906. That is, if the Plaintiff failed to come forward with substantial evidence as to an element of her claim, she wasn’t going to win even if the jury instructions were perfect. 

Which is the case here. Retaliation requires proof that the defendant took an adverse employment action. The stuff Plaintiff pointed to did not rise to the level of that.

Affirmed.

Collections Default Is Not an Avenue for Collateral Attack

Cnty. of Sonoma v. Gustely, No. A153423 (D1d2 Jun. 24, 2019)

County agency assessed penalties against a Landowner for violations of land use ordinances. Landowner didn’t appeal or seek a writ of administrative mandamus. County brought a collection procedure to enforce the judgment. Landowner defaulted. On a motion for default judgment, the trial court reduced the penalty from $45 to $20 per day. That was error. By declining to appeal the enforcement case, Landowner forfeited the right to challenge the judgment. The trial court should not have engaged in what was essentially a collateral attack on it in a default proceeding.

Judgment modified.

This Is Madness!

Rhue v. Superior Court, No. B283248 (D2d7 Nov. 28, 2107)

In many of California’s counties, the courts no longer provide official reporters. Parties need to bring their own. But if the parties can’t afford that, the only way to create an appellate record is a rather arcane process called a settled statement. Which is a narrative description, approved by the trial judge, of what happened during a proceeding. Very 18th century.

Class Action Objectors Get No Ticket to the Appellate Party

Hernandez v. Restoration Hardware, No. D067091 (D4d1 Mar. 14, 2016)

Plaintiff won a $36.4 million bench verdict in a rare class action that actually went to trial. The court awarded 25 percent of the judgment as a fee award to the plaintiffs’ attorneys. Subject to the parties post-trial “clear sailing” agreement, the Defendant didn’t contest the award. But a class member objected, both on the basis that the court didn’t give the class notice of the fee hearing, and on the merits of the award itself. The trial court rejected the objection and entered a judgment including the 25 percent award. The objector appealed.

The Theory of Trial Principle

Navarrete v. Meyer, No. D067454 (D4d1, as modified Jul. 22, 2015)

When you try and lose a case based on a core theory that applies the facts to the law, an appellate court generally won’t let you change that theory in seeking reversal. This is known as the “theory of trial principle.” But the principle isn’t super-rigid. So if your appeal is generally consistent with your trial theory but invokes more detailed, while consistent, legal analysis, the theory doesn’t preclude a reversal. After all, sometimes things are just a little more thoughtful given the pace and focus of an appeal. The appellate lawyers in this case invoked a statute that hadn’t been addressed in the trial court briefing. But their theory was more or less consistent, so the theory of trial principle wasn’t offended, and they could make their argument on appeal.

That being the case, and the argument being permitted, the trial court erred in granting summary judgment.
 
Reversed.

A Pleasant Disposition

Ducoing Mortgage v. Superior Court, No. G050457 (D4d3, as amended Feb. 10, 2015*)

Two related company plaintiffs and sued their insurance broker for failing to procure the right policy but got nonsuited at trial. The court awarded defendant about $50k in costs. In a prior appeal, the court affirmed dismissal as to one plaintiff for a somewhat technical reason, but “in all other respects” reversed and remanded for further proceedings.

After remand, the defendant began efforts to collect on the cost judgment against the affirmed plaintiff. In judgment debtor proceedings related to the collection, the trial court held that the costs judgment remained enforceable versus the losing plaintiff, who took a writ.

In reaching the merits, the court makes a number of comments about the nature of an appellate court’s disposition in California. Under Code of Civil Procedure § 43, an appellate court can “affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.” This usually occurs in a short paragraph at the end of an opinion. Although it need not be exceedingly detailed, a “disposition is not intended to be a riddle, and the directions in the dispositional language, as conveyed by the remittitur, are to be followed by the trial court on remand.” If a party is confused by the disposition, its proper recourse is a petition for rehearing.

Looking to the prior disposition, the court here holds that its disposition reversing the trial court’s ruling “in all other respects” save the technical reason for bouncing the one plaintiff, in effect, vacated of the costs award too. The court further agrees with the petitioner that it would be “patently unfair” to stick it with a full costs award, given that the defendant still faced full liability on remand from the other plaintiff. Finally, the court notes that § 1032 affords a trial court the discretion to apportion costs. When, like here, two closely affiliated plaintiffs are jointly represented, if one loses but the other potentially prevails, a defendant should only be permitted to recover the marginal costs associated with the joinder of the non-prevailing plaintiff.

Writ granted.

**The court modified its opinion on rehearing to note that a petition for rehearing brought to correct ostensible fact mistakes was brought too late.