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Tuesday
May272008

Keep Track of Judgments and Orders

Figuring out when to file your notice of appeal can be a tricky matter. Serving a notice of entry of judgment or a conformed filed-stamped copy of the executed judgment can cut down the time from 180 to 60 days. But what if you never received the judgment or notice of entry of judgment?

In Avenue v. Franco (May 13, 2008, G039767) ___ Cal.App.4th ___ [2008 WL 2026309], the court dismissed an appeal for lack of jurisdiction, holding that "a trial court cannot restart the clock for filing a notice of appeal by vacating and 're-entering' a judgment on the ground the appellant never received notice of entry of judgment." This is not the first time a trial court has tried to save an appeal lost due to the failure to file a timely notice of appeal. Filing a notice of appeal is jurisdictional and the exceptions to the time deadline are so rare that they aren't even worth discussing.

In Avenue, the trial court granted defendant's motion to enforce a settlement agreement but took under submission the issue of attorney's fees. Two weeks later the court issued a minute order granting defendant's motion for attorney's fees of $12,375. Over four months later the defendant served a notice of ruling indicating plaintiff was ordered to pay the judgment immediately to defendant. Plaintiff objected, arguing the court could only enter judgment - which had not yet been entered - and then it could be enforced. But the trial court did enter judgment, just 20 days after the notice of ruling. Neither a revised notice of ruling (bearing interlineations), the judgment, nor the notice of entry of judgment had been served on the plaintiff.

The plaintiff's attorney did nothing until over five months later when he discovered from the superior court web site that judgment had been entered. The plaintiff filed a motion to vacate the judgment as void because he did not receive the notice of entry of judgment as required by Code of Civil Procedure section 664.5, subdivisions (a) and (b). The trial court granted the motion, noting that defendant failed to serve the proposed judgment pursuant to California Rules of Court, rule 8.25. It canceled the judgment and deemed it filed on the date of the hearing on the motion. Plaintiff filed a notice of appeal 22 days later.

The appellate court observed the trial court's "unusual action" "was obviously well intentioned," and that plaintiff did not receive the statutory notices. It held, however, the trial court lacked the jurisdiction to vacate the judgment because the earlier judgment was not void. The failure to properly serve the notice of entry of judgment gave the appealing party a longer time to file the notice of appeal, i.e., 180 days rather than the 60-day period. (Cal. Rules of Court, rule 8.104(a)(1) & (2).) Even the trial court did not find the judgment to be void.

The appellate court also rejected an argument that the judgment was void based on the ground of extrinsic fraud. The plaintiff failed to raise the issue and satisfy the requirements for specific pleading of fraud. Nor did the trial court make any factual finding of extrinsic fraud and its minute order did not support an implied finding of fraud. As a result, the judgment in excess of $189,671 could not be challenged on appeal.
Saturday
May172008

A Gift for Plaintiff's Medical Malpractice Attorneys


Every once in a while a case comes along that is so helpful that we have to save it in our little bag of tricks. Perhaps that is why the defense has filed a Petition for Review and hired some high-powered appellate attorneys to enter the fray.


Garibay v. Hemmat (2008) 161 Cal.App.4th 735 was decided by the Second Appellate District. The plaintiffs sued the defendant physician, claiming he performed an unsuccessful bilateral tubal litigation. The defendant filed a motion for summary judgment, relying on a medical expert, whose opinion was based on a review of the medical records. The records were not properly admitted into evidence and were not attached to either the expert declaration or summary judgment motion. Plaintiffs appealed.


The court concluded the summary judgment motion was insufficient “because there were no facts before the court on which the expert medical witness could rely to form his opinion.” (Id. at p. 737.) The expert was not a percipient witness. The court noted, “A proper method for producing these facts would have been, for example, by means of a declaration or deposition testimony from the doctor who performed the surgery, or by properly authenticated medical records placed before the trial court under the business records exception to the hearsay rule.” (Id. at p. 738.)


Because defendant failed to present the records, there was no evidence to support the expert’s opinion or the motion. The court noted that an expert can only form an opinion and the moving defendant can only meet the burden of production by placing the facts first before the court.


The court cited Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523, a favorite case that every plaintiff’s attorney who handles medical malpractice cases should know by heart, which held that an expert opinion, unsupported by reasons or explanations, is insufficient to support a motion for summary judgment. “[T]hat standard is not satisfied by laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation.” (Id. at p. 525.)


The court in Gariby acknowledged that expert testimony can be the basis for expert medical opinion. But reciting hearsay evidence, upon which the expert relies, will “not transform inadmissible matter into ‘independent proof’ of any fact.” (Id. at p. 743.) The expert cannot relate the hearsay statements as an independent proof of the fact. The court further stated:


“Physicians can testify as to the basis of their opinion, but this is not intended to be channel by which testifying physicians can place of the opinion of out-of-state physicians before the trier of fact.” (Id. at p. 743.)


Thus, defendant failed to meet its burden of production, and the court reversed the judgment.


In the past, defendants filed motions for summary judgment that relied on “expert” declarations, which often consisted of two or three conclusory paragraphs. Starting with Kelley, the courts sent a warning to moving parties that such declarations are insufficient and must provide a reasoned explanation for the expert’s opinion. Garibay has taken another step in that direction in concluding that a declaration without admissible medical records is not enough.


Responding plaintiffs also need to take heed. If the expert declaration submitted by a defendant without evidentiary support is insufficient, then a responding declaration must also satisfy this burden. Does that mean that every motion will be accompanied by a truckload of medical records? We should not have to go that far but the motion (and opposition) must be supported by evidentiary facts.


Stay tuned . . .


Tuesday
May132008

A View from Inside the Appellate Court

I recently attended a seminar presented by two attorneys from our local Court of Appeal. So, here's the inside scoop:

  • Statement of Issues: The attorneys said that in over half the briefs they received, it wasn't clear what the appellant was appealing. They asked, "Are you appealing or just complaining?"

  • Introductions: Only a page or two. Give them a clue and remember they don't know the facts.

  • Edit, edit, edit.

  • Citing cases that are against your position can enhance your credibility.

  • They really do check our citations.

  • Wondering whether to include citations to the record in the argument, rather than just the Statement of Facts? Yes, please do.

  • Let a non-attorney read your draft. If he or he can't understand it, then edit some more.

  • Avoid words such as "clearly," "uncontroverted," and "certainly."

  • Don't bunch up your cites to the record at the end of the paragraph; add them in sentence by sentence.

  • Don't bury one point in another.

  • Credibility above all else.

  • The attorneys don't have a computer record to conduct searches so make it easy for them to find the citations.

  • Thinking of filing an e-brief? The court will love you. It's hard to miscite the record when it is available at the click of a button.

  • Don't argue in your Statement of Facts.

  • Support your points and make sure they match your Table of Contents.

  • Don't sandbag your opponent by bringing up new matter in your Closing Brief, so they can't respond to those points.

  • Prioritize issues according to strength and based on the stronger standard of review.

  • Pick your issues carefully and eliminate unnecessary facts.

Friday
Apr112008

Is it too difficult to return a phone call?

By the time I get involved in a case, the client has been through at least one, if not more, attorneys. Not only do I learn about the case, but I also hear about the relationship between the client and his or her attorney. Sometimes I feel like a janitor coming in after a big party and I have the task of cleaning up after the festivities are over. Or perhaps not quite over.

It wasn't too long ago that plaintiff's attorneys were concerned about their negative image with the public. The public perception of trial lawyers is generally not positive. Most of the people I talk to are angry and have lost confidence in their attorneys. It would be easy to say that they are just sore losers but I am not so convinced.

If trial lawyers are interested in improving the image of their profession, they can start with the simple things. Such as returning a phone call. That is the number one complaint that I hear. Average joes simply cannot reach their lawyers. It doesn't matter that they leave voice mail messages, fax notes, or send emails. Their lawyers are too busy.

The second major complaint is that their lawyers just don't care. That indifference can be demonstrated by a lack of preparation or by ignoring the client's efforts to provide information or evidence. Clients understand they are engaging in a business transaction but they just don't want to feel like a product.

Our image with the public could improve a couple of notches just by doing a few simple things. Return the phone call within 24-48 hours. If you can't, have your staff do it. When you talk to your client, show some concern. You might learn a few facts about the client and his or her family. Just because we are in business doesn't mean we shouldn't show a little compassion. Listen to what your client has to say. Sometimes their explanation will fill in the blanks or shed light on areas that cause us concern. After all, they lived the case.
Sunday
Apr062008

Failing to create and present a meaningful record on appeal.


Presenting a sufficient record that demonstrates error overcomes the presumption that the judgment is correct. As noted in Steuri v. Junkin (1938) 27 Cal.App.2d 758, 760, if the record is silent, the presumption of correctness will control, but where the record demonstrates what the trial court did and error below, the presumption is overcome. “When the record clearly demonstrates what the trial court did, we will not presume it did something different.” (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384.)


So, how can an attorney fail to create a meaningful record? You might have a sidebar discussion, which may include a ruling, or an in-chambers conference, that is not reported. You might withdraw certain jury instructions and fail to make those withdrawn instructions part of the record. You might give the court reporter a break and waive reporting certain aspects of the trial, such as voir dire or closing arguments.


Failing to present a meaningful record may be more of a matter of choice. A “meaningful” record does not mean including only the items that favor your position. For instance, if you are appealing from the granting of a summary judgment, denial or granting of a post-trial motion, or an anti-SLAPP motion, you should designate all documents that were considered at the hearing. That shows you are fair and credible, and you believe your position is strong enough that you don't need to hide documents and you will win on the merits.


That doesn’t mean intentionally omitting the opposing attorney’s filings. While this omission could be cured by a counter-designation or a later motion to augment, it does not reflect an objective presentation of the facts and could harm your credibility. In the worst case scenario, the reviewing court may conclude that it does not have an adequate record to make a determination that an error has occurred.


If the appellants fails to present a meaningful record, that puts the respondent in a quandary. Should he or she do nothing and let the reviewing court conclude the record is insufficient? Or should the respondent’s attorney provide the missing parts of the record, especially if the omitted portions will support respondent’s position? That, of course, will depend on the facts of the case.