Some interesting appellate decisions

Last week the Second Appellate District, Division Seven decided two related appeals.  Both are unpublished but are of interest.  In the first case, Cordero, Sr. v. Evans, Case No. 196589, the defendant appealed from a judgment of $329,700 for injuries suffered in a car accident.  In October 2003, the Cordero family was riding in a car when they experienced a flat tire.  They were stopped on the freeway and attempted to call for help when they were hit from behind by Shaun Evans.  Cordero Sr. suffered significant injuries.  He was in the hospital for two weeks, and during some of that time, he was in a coma.

The appeal raised issues of jury and attorney misconduct, and sufficiency of the evidence to support future economic damages.  One argument made by the defendant below and on appeal was that Cordero Sr. would not receive the care plan presented at trial because he had been in jail since 2004, spent more than 40% of his life in jail, and since he was still in prison, it was unlikely he would receive such future care.  Defendant also argued that because of Cordero Sr.'s criminal and drug background, his lifespan should be shortened.

The court noted that it does not sit in "judgment of a jury's common sense," and the tables of life expectancy included all males, including gang members.  As to the attorney misconduct, the reviewing court held that Evans had forfeited any objection by failing to request that the jury be admonished.  Even though the defense attorney objected to each question, the court stated, "A claim of misconduct cannot be considered on appeal unless the party timely objected and requested that the jury be admonished, unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice."

In the second appeal, Cordero, Jr. v. Evans, Case No. B197973, the trial court granted a nonsuit against the infant plaintiff.  At trial, Evans admitted liability and the trial focused entirely on damages.  The infant was fastened in his infant care seat when the collision occurred.  Afterward, he was crying, screaming and vomiting.  There was glass and some blood on his face; Cordero Jr. was bleeding and had a black eye.  A blood clot or intracranial bleeding was suspected but it was ruled out.  Of course, Cordero Jr. was in no position to testify as to his injuries.

The trial court found there was no evidence of injury, stating, "Because you're in the car doesn't mean you get damages for it."  The trial court also rejected evidence that Cordero Jr. was in pain because he was crying "The baby was crying.  There is no evidence the baby was in pain.  The baby was crying."  Go figure.  The court of appeal reversed the judgment.

Is the error harmless?

Courts will frequently write opinions in terms of harmless v.  prejudicial error.  We hear these terms tossed around quite a bit.  A judicial error committed below must be analyzed in an effort to categorize the type of error committed.  Needless to say, harmless errors will not affect the outcome on an appeal because the reviewing court reasons that the result would be the same even if the error had not occurred.  Obviously, this makes sense . . . if a number of errors will almost certainly occur during the course of a trial – because humans are imperfect – then almost every case would be reversible.  This result would not make for an efficient judicial system.

Code of Civil Procedure section 475 addresses errors not affecting the parties’ substantial rights and mandates that the trial court must disregard “any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.”   This section also provides that there is no presumption an error is prejudicial, thus requiring an appellant to demonstrate how the error was prejudicial, the error affected the substantial rights of the parties or how it would have changed the outcome of the case.

The importance of credibility

I can't stress enough the importance of an attorney's credibility.  Take a look at Christian Research Institute v. Alnor (Aug. 13, 2008, G039424) ___ Cal.App.4th ___, 2008 WL 3411742, which was decided by the Fourth Appellate District, Division Three in Santa Ana.  In that case, the defendant appealed from a post-judgment award of legal fees on an anti-SLAPP motion.  He claimed his attorney expended more than 600 hours - 228.7 for the motion and 410 for the appeal - but the trial court reduced the compensable attorney time from over $250,000 to just 71 hours for an award of $21,300.

The reviewing court affirmed the trial court's award, finding the fee request included "noncompensable hours and vague, indecipherable billing statements, destroying the credibility of the submission" and justifying a severe reduction.  A successful defendant is entitled to attorney's fees for the motion, and if necessary, an appeal, but not the entire litigation.

The court found much of the work done by five different lawyers was duplicative and unnecessary, and "blockbilling" was used to obscure what work was done.  It wrote, "[c]ounsel inflated the fee claim with a multitude of time entries devoted to matters other than the motion to strike, thereby undermining the credibility of counsel's other entries."  Ouch!  The court concluded, "Counsel's willingness to flout the statutory restriction on the scope of anti-SLAPP fee claims justified the trial court in taking a jaundiced view of the fee request."  Further ouch!

The court was critical of the work performed as well.  It resolved a significant issue without any aid from defendant, who failed to cite several important cases.  (After 600 hours? Oops!)   It noted, "An attorney's chief asset in submitting a fee request is his or her credibility, and where vague, blockbilled time entries inflated with noncompensable hours destroy an attorney's credibility with the trial court, we have no power on appeal to restore it."

As though the wound was not already smarting, the court rejected the attorney's argument that the trial court must sift through the "noncompensable, vague, blockbilled attorney time entries and expect particularized, individual deletions as the only consequence."  The court felt that the trial court had no duty to do so when the attorney made "no effort to prune the fee request to comply with the law."  More pain to come . . . "The trial court could reasonably conclude counsel's disregard for the law undercut the credibility of their fee request and, as officers of the court, warranted a severe reaction."

This case is instructive reading when preparing motions for attorney's fees in any case.  Pay attention to providing adequate details of your services, and avoid duplication of efforts when more than one attorney is performing services.  But, above all else, protect your credibility with the court.

Fixing a clerical error at the trial court level

Now that we've examined judicial errors - the basis for appeals - let's take a look at clerical errors.  One might be tempted to say that clerical errors are made by clerks of the court, but as we can see from the authorities provided below, almost anyone involved in the litigation process can make a clerical error.

As a general principle, the trial courts possess the inherent power to correct clerical errors in their records so that the court’s orders and judgment conform to the truth of the records.  (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4^th 1228, 1238.)  “A court of general jurisdiction has this inherent power to correct clerical error in its records, whether made by the court, clerk or counsel, at anytime so as to conform its records to the truth.”  (Aspen Internat. Capital Corp. v. Marsch, supra, at p. 1204.)  A clear example of a clerical error occurs when a court clerk fails to perform the ministerial duty of entering a judgment in conformity with the court’s decision.   But, as noted in Aspen, a clerical error can be committed by the court, a clerk, or even counsel.  (Id.) 

The court further noted that “The term ‘clerical error’ covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function.  If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence.” (Id.)

If you find that a clerical error has been made, the place to correct it is at the superior court level.  When clients ask me about appealing a judgment, I review the case to determine whether there is anything that can be done at the lower level to fix the problem.  It is quicker, less expensive, and if the trial court understands that an error has been made, it is more effective in fixing the problem.  

Judicial error

Judicial error is committed when the court intended the order or judgment it made, even though it was based on an error of law.  Since a judicial error may be committed by a judge and a clerical error may (or may not be) committed by a clerk, the type of error may be difficult to determine.  In Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4^th 1228, the court described the differences between the two types of errors:

  “The difference between judicial and clerical error rests not upon the party committing the error, but rather on whether it was the deliberate result of judicial reasoning and determination.  The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered.” (Id. at p. 1238.)

         The type of error will determine the remedy.  If a simple clerical error was committed, then a party can make a motion before the same tribunal to correct the error.  But the court cannot amend a judgment to modify or materially affect the parties’ rights under this inherent power.  (Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal.App.3d 1199, 1204 [“The difference between judicial and clerical error rests not upon the party committing the error, but rather on whether ‘it was the deliberate result of judicial reasoning and determination'”].) 

If such an error occurs, and the judgment has been entered, the trial court cannot correct the error and the parties must look to the appellate courts to do so.  “Unless the challenged portion of the judgment was entered inadvertently, it cannot be changed post judgment under the guise of correction of clerical error.  (Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal. App.4^th 110, 117.)  Thus, if the court “construed the evidence before it, or misapplied the law applicable to the facts disclosed by the evidence, or was even misled by counsel,” the error is not a clerical one and must be corrected on by a post-judgment motion or on appeal.