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.
Showing posts with label notice of appeal. Show all posts
Showing posts with label notice of appeal. Show all posts
Tuesday, February 18, 2020
Tuesday, October 15, 2019
Procedural Footfault Dooms Objector's Appellate Standing
Eck v. City of L.A., No. B289717 (D2d7 Oct. 15, 2019)
In Hernandez v. Restoration Hardware, the California Supreme Court held that a class action settlement objector cannot appeal the overruling of her objections unless she becomes a “party aggrieved” of record under Code of Civil Procedure § 902. As the Court explained, the two ways to do that are (1) to move to intervene before the judgment is final or (2) to file a § 663 motion to vacate the judgment. If she does either and her motion is denied, she can raise the issue on an appeal from the denial.
Objector here filed a motion to intervene, which was denied. And then she filed a § 663 motion, which was also denied. Problem for her is that while she filed a notice of appeal on the intervention motion, she didn’t file a second notice to appeal the denial of her post-judgment § 663 motion. Yet, she didn’t argue in her brief that intervention was wrongly denied.
Objector contends that just filing of a § 663 motion was sufficient to give her standing under § 902 to reach the merits of her objections, even in her intervention appeal. But that doesn’t make sense, and it isn’t supported by authority.
You can’t appeal an order outside of your notice of appeal, although the notice is construed liberally. Here, Objector’s notice on the intervention was filed before her § 663 motion was denied, so it couldn’t have encompassed that order, however liberally construed.
So because Objector appealed only the trial court’s denial of her motion to intervene, the merits of the intervention motion posed a gating procedural issue. Objector had to convince the Court of Appeal that intervention was wrongly denied before it could reach the merits of her objection. And since she didn’t even try to do that, she lacked appellate standing.
Appeal dismissed.
In Hernandez v. Restoration Hardware, the California Supreme Court held that a class action settlement objector cannot appeal the overruling of her objections unless she becomes a “party aggrieved” of record under Code of Civil Procedure § 902. As the Court explained, the two ways to do that are (1) to move to intervene before the judgment is final or (2) to file a § 663 motion to vacate the judgment. If she does either and her motion is denied, she can raise the issue on an appeal from the denial.
Objector here filed a motion to intervene, which was denied. And then she filed a § 663 motion, which was also denied. Problem for her is that while she filed a notice of appeal on the intervention motion, she didn’t file a second notice to appeal the denial of her post-judgment § 663 motion. Yet, she didn’t argue in her brief that intervention was wrongly denied.
Objector contends that just filing of a § 663 motion was sufficient to give her standing under § 902 to reach the merits of her objections, even in her intervention appeal. But that doesn’t make sense, and it isn’t supported by authority.
You can’t appeal an order outside of your notice of appeal, although the notice is construed liberally. Here, Objector’s notice on the intervention was filed before her § 663 motion was denied, so it couldn’t have encompassed that order, however liberally construed.
So because Objector appealed only the trial court’s denial of her motion to intervene, the merits of the intervention motion posed a gating procedural issue. Objector had to convince the Court of Appeal that intervention was wrongly denied before it could reach the merits of her objection. And since she didn’t even try to do that, she lacked appellate standing.
Appeal dismissed.
Monday, February 8, 2016
(Re) Clearing the Decks
So I just moved, we are expecting a second daughter in May, and I have spent the last month pulling all-nighters in expedited preliminary injunction proceedings. Which is all a way to say that I’ve fallen really behind on posts here.
Tuesday, June 16, 2015
Escape from Muni Court
Leonard v. Superior Court, No. C077597 (D3 May 22, 2015)
Defendant in this erstwhile limited jurisdiction collections case amended her pending cross-compliant, raising the demanded damages from $5,500 to $250,000. That qualified the case for unlimited treatment—a reclassification that should have been automatic under Code of Civil Procedure § 403.020. All she had to do was pay a $140 fee. But when she tried to pay the fee to the clerk she was told (twice) that it wasn’t necessary at that time and that her case had been reclassified.
Subsequently, the court granted a SLAPP motion directed at the counterclaims. About forty-eight days after the dismissal, Defendant filed a notice of appeal. But to her surprise, the case had not really been reclassified. The trial court struck her notice of appeal as untimely because unlike the sixty-day window in an ordinary case, Cal. R. Ct. 8.104(a)(1), the rule governing limited cases affords thirty days to appeal. Cal. R. Ct. 8.822. To save her appeal, Defendant filed a motion to reclassify the case, which the trial court denied on account of her not being able to prove that more than $25,000 was at issue. Defendant took a writ, which the Third District grants.
As I mentioned, § 403.020(a) says that whenever a party files an amended pleading that increases the amount at issue past the $25,000 jurisdictional minimum and pays the fee, the clerk should reclassify the case as unlimited. It’s a non-discretionary, ministerial duty. The court faults Defendant for filing a reclassification motion under § 403.040, which is ordinarily used when a case is incorrectly classified, as opposed to a change in classification caused by an increased demand for damages in an amended pleading. But it’s not really clear what Defendant was supposed to do to get the trial court to act. In any event, the clerk should have reclassified the case, so the court of appeal grants the writ and orders it to do so.
The court goes on to note a second mistake. The trial court should not have struck the notice of appeal as untimely, even if was right on the merits. That’s not its job. The filing of the notice divested the trial court of jurisdiction, so any challenge to the timeliness of the notice should have been directed to the court of appeal.
Writ granted.
Defendant in this erstwhile limited jurisdiction collections case amended her pending cross-compliant, raising the demanded damages from $5,500 to $250,000. That qualified the case for unlimited treatment—a reclassification that should have been automatic under Code of Civil Procedure § 403.020. All she had to do was pay a $140 fee. But when she tried to pay the fee to the clerk she was told (twice) that it wasn’t necessary at that time and that her case had been reclassified.
Subsequently, the court granted a SLAPP motion directed at the counterclaims. About forty-eight days after the dismissal, Defendant filed a notice of appeal. But to her surprise, the case had not really been reclassified. The trial court struck her notice of appeal as untimely because unlike the sixty-day window in an ordinary case, Cal. R. Ct. 8.104(a)(1), the rule governing limited cases affords thirty days to appeal. Cal. R. Ct. 8.822. To save her appeal, Defendant filed a motion to reclassify the case, which the trial court denied on account of her not being able to prove that more than $25,000 was at issue. Defendant took a writ, which the Third District grants.
As I mentioned, § 403.020(a) says that whenever a party files an amended pleading that increases the amount at issue past the $25,000 jurisdictional minimum and pays the fee, the clerk should reclassify the case as unlimited. It’s a non-discretionary, ministerial duty. The court faults Defendant for filing a reclassification motion under § 403.040, which is ordinarily used when a case is incorrectly classified, as opposed to a change in classification caused by an increased demand for damages in an amended pleading. But it’s not really clear what Defendant was supposed to do to get the trial court to act. In any event, the clerk should have reclassified the case, so the court of appeal grants the writ and orders it to do so.
The court goes on to note a second mistake. The trial court should not have struck the notice of appeal as untimely, even if was right on the merits. That’s not its job. The filing of the notice divested the trial court of jurisdiction, so any challenge to the timeliness of the notice should have been directed to the court of appeal.
Writ granted.
Monday, April 6, 2015
Vexatious Dad Can't Collaterally Attack Pre-Filing Order
In re Marriage of Rifkin and Carty, No. A139484 (d1d4 Mar. 6, 2015)
The father in a contentious child custody dispute got himself declared a vexatious litigant and hit with a pre-filing order. Father (pro se, of course) filed but abandoned an appeal of that order. He later moved to vacate it under § 391.8(a) of the Code of Civil Procedure, which was denied. He appealed again, which is where things currently stand.
First things first, Dad can’t directly challenge the propriety of the underlying order in this appeal. Appellate courts can’t review a decision from which a previous appeal could have been (or here, was) taken as a matter of right. Moreover, he didn’t argue that the order appealed in this case—the order denying his motion vacate—under the relevant standard, which requires him to show that there had been a “material change of facts” to get him off the naughty list.
But even if it were to reach the merits of the underlying order, the court would affirm. Father clearly did a bunch of stuff in the custody dispute that meets the standard for being a vexatious litigant: i.e., a person “while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.” The fact that they were family court proceedings didn’t take him out of the definition.
Finally, although Father tried to address in this appeal the trial court’s attorney fee award based on his vex, that award was separately appealable and he didn’t file a notice. So no dice.
Affirmed, even though Mother never filed a respondent’s brief.
The father in a contentious child custody dispute got himself declared a vexatious litigant and hit with a pre-filing order. Father (pro se, of course) filed but abandoned an appeal of that order. He later moved to vacate it under § 391.8(a) of the Code of Civil Procedure, which was denied. He appealed again, which is where things currently stand.
First things first, Dad can’t directly challenge the propriety of the underlying order in this appeal. Appellate courts can’t review a decision from which a previous appeal could have been (or here, was) taken as a matter of right. Moreover, he didn’t argue that the order appealed in this case—the order denying his motion vacate—under the relevant standard, which requires him to show that there had been a “material change of facts” to get him off the naughty list.
But even if it were to reach the merits of the underlying order, the court would affirm. Father clearly did a bunch of stuff in the custody dispute that meets the standard for being a vexatious litigant: i.e., a person “while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.” The fact that they were family court proceedings didn’t take him out of the definition.
Finally, although Father tried to address in this appeal the trial court’s attorney fee award based on his vex, that award was separately appealable and he didn’t file a notice. So no dice.
Affirmed, even though Mother never filed a respondent’s brief.
Friday, December 20, 2013
The Appeal Clock Runs from a Voluntary Dismissal
Dattani v. Lee, No. A13852 (D1d3, as modified Jan 14, 2013)
After the trial court granted summary adjudication in favor of defendant, plaintiffs filed a notice of voluntary dismissal of the remainder of their claims without prejudice. Almost six months later, the court signed a proposed defense judgment prepared by plaintiffs’ counsel. Plaintiffs filed a notice of appeal three weeks later. The court of appeal dismisses the appeal as untimely. An appeal of the summary adjudication was not barred by the subsequent voluntary dismissal, because, unlike in the recent Kurwa v. Kislinger, 57 Cal. 4th 1097 (2013), the appeal was not rendered unripe by an agreement to toll the statute of limitations. But when combined with the summary adjudication order, plaintiffs’ voluntary dismissal of the remainder of their claims ended the case and was effective as a final appealable judgment as soon as the dismissal was submitted to the court. Since the notice of appeal was filed more than 180 days after the dismissal, the appeal was untimely under Rule of Court 8.104(a)(1)(C).
Appeal dismissed.
After the trial court granted summary adjudication in favor of defendant, plaintiffs filed a notice of voluntary dismissal of the remainder of their claims without prejudice. Almost six months later, the court signed a proposed defense judgment prepared by plaintiffs’ counsel. Plaintiffs filed a notice of appeal three weeks later. The court of appeal dismisses the appeal as untimely. An appeal of the summary adjudication was not barred by the subsequent voluntary dismissal, because, unlike in the recent Kurwa v. Kislinger, 57 Cal. 4th 1097 (2013), the appeal was not rendered unripe by an agreement to toll the statute of limitations. But when combined with the summary adjudication order, plaintiffs’ voluntary dismissal of the remainder of their claims ended the case and was effective as a final appealable judgment as soon as the dismissal was submitted to the court. Since the notice of appeal was filed more than 180 days after the dismissal, the appeal was untimely under Rule of Court 8.104(a)(1)(C).
Appeal dismissed.
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