An Appeal to Reason

Don't omit important facts from your appellate briefs!

2013-06-12T04:05:38Z

In one of the largest sanction awards by the appellate court, the appellant's attorneys were ordered to pay the respondent the sum of $52,727.56. So, how did that happen?

In Kleveland v. Siegel & Wolensky (2013) 215 Cal.App.4th 534, the appellate court was faced with a third appeal in the same case. The first appeal was from the denial of Scott's petition for breach of trust and removal of a trustee. The trial court found Scott's petition was pursued in "bad faith" and for an "improper purpose." In the second appeal, Scott challenged the lower court's order approving a petition for approval of accounting and the proposed plan of distribution. One of Scott's attorneys also appealed an award of sanctions against him.

The third appeal involved a malicious prosecution lawsuit filed by the trustee against Scott and his attorneys arising out of Scott's petition for breach of trust and removal of trustee. The attorneys who represented Scott filed an anti-SLAPP motion, which was denied, and the lower court awarded the trustee $20,055 in fees and costs. They appealed that order.

What is important here is that the Court of Appeal sharply criticized appellants for the failure to provide a "summary of significant facts limited to matters in the record." (Cal. Rules of Court, rule 8.204(2)(C).) Oddly enough, appellants omitted what the Court considered to be the most important fact: the trial court found Scott's petition was filed in bad faith and for an improper purpose. The Court stated, "This is all the more preposterous because this finding of bad faith was appealed and affirmed by this court." (Id. at p. 557.) Wow, one major OOPS!

The Court also criticized appellants' use of "facts" and "evidence" beyond the petition "in an attempt to manufacture a reasonable justification for filing and pursuing the petition." (Id. at p. 539.) As such, the attorneys misrepresented the record and ignored case law without explanation. The appellants were selective in presenting the "facts" from the record and they also asked the appellate court to consider "evidence" that was explicitly rejected by the trial court. The court continued, "Attorney Defendants attempt to reargue factual issues that have long been decided (and affirmed on appeal) while ignoring the relevant statutes and case law. At times, it is clear that Attorney Defendants brazenly misrepresented the record and/or obscured facts." (Id. at p. 557.)

It further found the third appeal to be "patently frivolous" because there was no law or facts to support their arguments. As a consequence, it ordered sanctions in the amount of $8,500 - as the cost of processing an appeal - to be paid to the clerk, and $52,727.56 as sanctions payable to the trustee. (Id. at p. 539.)

Of particular note is the following language:

"It also should be obvious there is a great need to deter conduct of this nature in the future. This is especially true considering the number of attorneys involved in this appeal . . . We find it incredulous that seven pairs of legally trained eyes failed to see that the opening brief distorted the record and ignored the trial court's findings to such an extent that it is appropriately characterized as nothing short of a farce. . . . We cannot sit idly by when several members of the bar fail to live up to the standards of the profession." (Id. at p. 559.)

The Court stressed the importance of being able to rely on the honesty of attorneys, who are called "officers of the court." While it may be a honorary term, it is still one that should be respected, most of all by attorneys. As I have often stressed, credibility is everything, and no case, client or amount of money is worth endangering your reputation with the court.

California Supreme Court rules that cities and counties may ban medical marijuana dispensaries

2013-05-06T18:35:43Z

In an opinion that the medical marijuana community has long been waiting for, the California Supreme Court held in City of Riverside v. Inland Empire Patients Health and Wellness Center, Case No. S198638, that California's medical marijuana statutes do not preempt local bans on facilities that distribute medical marijuana. The opinion, written by Justice Baxter, notes the "use, possession, cultivation, transportation, and furnishing of marijuana" are generally prohibited by both state and federal laws. (Opn., pg. 1.) The Compassionate Use (CUA) and the Medical Marijuana Program Act (MMP) have "removed certain state law obstacles" for medical marijuana users. In contrast, the Court recognized that cities and counties have authority, pursuant to the California Constitution, to make and enforce ordinances that are not in conflict with general law, including ordinances for public health, safety and welfare, and "the appropriate uses of land within a local jurisdiction's borders, . . . " (Opn., pg. 2.)

The opinion notes the statutory scheme under both the CUA and MMP are "modest," "limited," and "specific." (Opn., pgs. 11-12.) It also noted the Legislature has made no attempt to come up with a comprehensive statutory scheme, including one that would prevent cities or counties from enacting an absolute ban on collectives and dispensaries. The opinion concludes by stating, "Of course, nothing prevents future efforts by the Legislature, or by the People, to adopt a different approach." (Opn., pg. 38.)

Don't expect the Legislature to enact a comprehensive statutory scheme at any time in the near future, especially with the federal prohibition looming over its head. That means medical marijuana patients will either have to find cities that allow medical marijuana (few and far between), grow in themselves, or turn once again to illegal drugs. I am predicting that the sale of illegal drugs will increase, giving a huge bonus to the drug cartels and the prison systems. A very disappointing, but not unexpected, result. You can find it here: http://www.courts.ca.gov/opinions/documents/S198638.PDF.

Don't make it hard for the Court of Appeal

2013-04-23T05:40:17Z

In an unpublished opinion from the Court of Appeal, Fourth Appellate District, Division Three in Santa Ana, the court launched into an attack on the appellants' record preparation. In Carter v. Francisco, Case No. G047234, the appellants were appealing from an order denying arbitration. The court started out with a topic heading "State of the Record." Just seeing that heading could lead one to the conclusion that what follows would not be good news for the appellants, especially when the first sentence starts off, "At the outset, we take note of problems with the record." (Opn., pg. 2.) The opinion goes on to describe the problems with page numbering or lack thereof and the fact the motion to compel arbitration, which was over 200 pages, did not have a table of contents.

The court then states, "Although we attempted to make sense of the record, it is not our responsibility to plow through several hundred pages of material to try and find support for appellants' contentions. A fundamental principle of appellate law is the judgment or order of the lower court is presumed correct and the appellant must affirmative show error by an adequate record . . . This includes a requirement that each factual allegations be supported by a reference to the exact page where such a fact may be found . . . Should we have overlooked a document in our analysis, the appellants failure to provide us with specific page references is to blame." (Opn., pgs. 2-3.)

The opening brief contributed to the problem when it gave a record reference that was inaccurate. Whether the Court went to the clerk's transcript or the supplemental clerk's transcript, neither contained the reference. Not a good way to build credibility with the court.

If that was not enough to depress the hell out of the appellants, the court focused in on appellants' argument that the Federal Arbitration Act applied, but found appellants did not make this argument in the trial court, and thus, they waived it. And citing U.S. Supreme Court cases in their points and authorities was not enough to apply the FAA. Moreover, the court noted appellants failed to present evidence to support a claim the parties engaged in interstate commerce. The appellants also argued there was a related case where arbitration had been ordered, but the court found nothing in the record supported this assertion.

As the court correctly noted, the appellants had the burden of producing a meaningful record. But simply supplying a record and expecting the court to go through it page by page is not enough. You don't want the research attorneys or justices scrambling to find a document that you have referred to without an appropriate reference to the record. They probably won't do it. Always think of making life easier for the court. It may not be an official rule, but it will avoid opinions such as this one.

Appealing from a Non-Appealable Order? Really?

2013-03-27T22:14:43Z

I have often counseled attorneys against filing an appeal from non-appealable orders. I have seen attorneys jump the gun and appeal tentative decisions, statements of decisions, and orders granting summary judgment or sustaining demurrers without leave to amend. While the general rule is that you appeal from a final judgment that disposes of the issues between the parties, there are plenty of exceptions. It is wise - even for an experienced appellate attorneys - to check on what is an appealable order or judgment every time you intend to file an appeal.

If you file a premature appeal from a nonappealable order, the appellate courts have the discretion, pursuant to California Rules of Court, rule 8.104(d)(2), to save your appeal. But don't count on it. Certainly Scott Good couldn't count on it. In Good v. Miller, 2013 Cal.App. LEXIS 189, decided by the Third Appellate District, Good filed an appeal from an order granting terminating sanctions, a nonappealable order. Judgment was filed over two months later.

In his opening brief, Good claimed he was timely appealing from "Entry of Judgment." The respondents noted, first in a mediation statement, and then as the first argument in their Respondents' Brief, that Good was appealing from a nonappealable order. Good failed to respond to this argument.

The appellate court stated it was publishing its opinion dismissing the appeal to "illustrate [the] limit" of its willingness to salvage an appeal and "to emphasize that it is imperative to appeal from an appealable order." (Opn., pg. 2; italics in original.) It declined to save Good's appeal for three reasons:

1. Good did not request the court's assistance in saving his appeal, despite the fact he received at least two notices of the defect. The court stated, "We are disinclined to exercise discretion in favor of a party who declines to ask us to do so." (Opn., pg. 4.)

2. Good ignore respondent's notice of the defect. The appellate court concluded Good was not just ignorant of appellate procedural rules, but was exercising a "stubborn refusal to follow the rules even after they have been explained.'" (Opn., pg. 4.)

3. Good misstated the relevant facts in the "appealability" section of his Appellant's Opening Brief, which is required by California Rules of Court, rule 8.204(a)(2)(B).

Good's appeal was dismissed, long after he might have been able to cure his defect and appeal from the final judgment.

Ouch!

What can go wrong with an appeal?

2013-03-19T02:36:47Z

In a recent unpublished opinion, Charles Virzi Construction, Inc. v. Studer, #G044326, Justice Ikola addressed what can go wrong with an appeal. While attorneys may make one or two mistakes, this opinion reads as an encyclopedia of what not to do, leaving the Court to conclude that plaintiff "Virzi's briefs and the record on appeal are voluminous, but fundamentally inadequate." (Opn., pg. 2)

This appeal was brought by a construction company that was suing Studer for the balance due on a remodel of a home in San Clemente. The owners cross-complained, alleging Virz breached the contract by his negligent performance. The trial court issued a 17-page statement of decision finding for the homeowner, awarding Studer $150,000 in compensatory damages. With costs and fees, the total judgment came to $566,210.

The appeal court granted Virzi's request to file an oversized opening brief, which Justice Ikola opined, "In hindsight, that may have been improvident." (Opn., pg. 10.) The appellants' opening brief was 138 pages with "64 separately numbered issues, sub-issues, sub-sub-issues, and sub-sub-sub-issues." Whoa! If you think the brief containedeverything, including the kitchen sink, you would be wrong. So, what was it missing?

How about a "concise statement of facts supporting the judgment." (Opn., pg. 10; emphasis added.) Virzi was challenging the judgment on substantial evidence grounds, but failed to include all of the relevant evidence supporting the trial court's findings on three out of four elements of a breach of contract action. The court stated, "Reading only those pages, one would conclude Virzi built the perfect home." (Id.) Studer's evidence was scattered about the rest of the brief. The court said, "This is woefully inadequate." (Id.)

Appellants frequently rely on their evidence in a substantial evidence challenge, ignoring the respondent's evidence or the evidence as a whole. Not good enough, according to Justice Ikola. The court highlighted some of the defects in Virzi's performance, including fire hazards or code violations.

Next? The appellants did not transmit the trial exhibits, even though they heavily relied on them and referred to 28 exhibits in their briefs, ignoring California Rules of Court, rule 8.224(a)(1) and (b)(1). If the exhibits are not transmitted, the appellate court will presume they do not undermine the judgment. (Opn., pgs. 11-12.)

Let's say the exhibits were transmitted. When referring to exhibits, especially those that are voluminous, a party must include the page number. In a footnote, the court wrote, "'Counsel is obligated to refer us to the portions of the record supporting his or her contentions on appeal.'" (Opn., pg. 11, fn. 3.)

The court noted that Virzi was improperly attempting to retry the case on appeal. But the appellate courts do not reweigh the evidence or consider the credibility of a witness. They are not, as Justice Ikola noted, "'a second tier of fact.'" (Opn., pg. 12.)

Could matters get any worse? Well, if you attack the statement of decision, but fail to appropriately address the trial court's actions, you might have a bit of a problem. Not only did Virzi tear apart the statement of decision, but they raised the court's failure to address Virzi's 22-page request, which the appellate court found to be "ineffective," because it "improperly sought 'an inquisition, a rehearing of the evidence' by asking for findings on 86 separately numbered issues.'" (Opn., pg. 13.)

To make matters worse - as if it could be done - Virzi attacked contract formation, even though it conceded the damages would have been the same under either possible version of the contract, thus lacking any real significance.

The appellate court also found Virzi waived the right to challenge certain costs but that waiver was done at the trial level. (Opn., pg. 21) Oh, but the same attorney who handled the trial also handled the appeal.

Then, to cap it all off, Virzi argued the trial court was without jurisdiction to award certain costs because a notice of appeal was filed. But guess what? The notice was premature. Virzi did not appeal from a judgment that was final.

What did Virzi get for all his attorney's fine work? The judgment as to the award of attorney's fees was reduced $17,020 to $549,190.85. Given the ongoing interest and costs and fees in handling appeal, this effort was hardly worth it, except to provide some classic textbook examples of what not to do in handling an appeal.

Serving the legal community through photography

2013-03-07T20:40:53Z

During a silent auction at a recent OCTLA Top Gun event, Judge Franz Miller bid on - and won - my print of Vinales, Cuba. The finest tobacco in Cuba is grown in this region, which is also popular with tourists because of its unsurpassed beauty. When Judge Miller learned Judge Francisco Firmat was retiring, he wanted to give his friend a gift. Judge Firmat is Cuban but left his home when he was 11 years old and hasn't returned since. When Judge Miller gave his friend the print, he discovered Judge Firmat already had an oil painting of Vinales hanging on his chambers' wall of the exact same scene! The oil painting had been commissioned by Judge Firmat from a Cuban painter over 30 years before! I had a chance to visit with Judge Firmat and he showed me that some of the shacks were still there. It was very gratifying for me. I could see how much he enjoyed the print and how Judge Miller, without knowing the history of the scene, had given his friend a very special gift. And I was a part of it!.

Appellate victory results in a 2013 CLAY Award by California Lawyer.

2013-02-19T03:57:38Z

They, whoever they are, say that when it rains, it pours. Most of the time that means bad news comes in buckets, but occasionally, good news comes our way. In this case, my way. Not only did I have my first gallery opening for my photography last Saturday, but only one day earlier, California Lawyer put out a press release announcing that Mitch Jackson and I were CLAY (California Lawyer of the Year) Award winners for 2013. California Lawyer named 60 attorneys for 27 accomplishments in 21 areas of legal practice. Mitch and I won in the category of "litigation" for our "precedent-setting victory for pet owners when a court of appeal upheld a jury award to a married couple for emotional distress they were caused by the injury of their dog." (Press Release)

Mitch Jackson was the trial attorney and I handled the appellate work, all the way up to a petition for review to the California Supreme Court, which was later denied. The decision by the Court of Appeal, Fourth Appellate District, Division Three can be found at Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590. It was a gratifying win for both us in a case dealing with years of harassment by neighbors against our clients. Our clients' dog Romeo suffered injuries, including a dislocated hip, when the neighbor hit the dog with a baseball bat. Being an animal lover, this was one of the best wins of my life (although my dog doesn't seem too impressed)!

Creativity in appellate briefs

2013-02-11T21:12:57Z

Judges will often encourage attorneys to be "brief" in preparing their briefs. I like this story: a lawyer who wanted to file an amicus brief, opposing the Justice Department's proposed antitrust settlement with three publishers of e-books, was given a five-page limit. Most attorneys would be upset by this. What can anyone say in five pages? The attorney decided to file the brief as a cartoon or, as he called it, a "graphic novelette." The attorney's daughter prepared the illustrations. The brief had a table of authorities, and then the comic strip followed, with the first panel showing the judge ordering a five-page limit. Sounds like a good way to distill arguments to their essence. You can find more information about the brief and a PDF of the cartoon here: http://www.abajournal.com/news/article/faced_with_a_five-page_limit_lawyer_files_cartoon_amicus_brief_with_proper_/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

Protect the Exhibits in the event of an Appeal.

2013-01-15T07:30:25Z

Okay, so you've won (or lost) at trial and it is over. Now you can go on to the next case. In a very short time, your memory of the trial will start to fade. But then an appeal is filed and your appellate attorney (sometimes me) questions you about what happened below. One of the first questions I might ask is who has the exhibits. Were the exhibits released to the parties or did the court retain custody of them? The court, having received complaints from the clerk that there is little room for storage, will encourage you to take the original exhibits. You would be surprised how many attorneys can't remember what happened to the exhibits. Now the appellate attorney, who has to transmit the exhibits to the court of appeal, must go searching for them. My trial tip would be to insist that the trial court maintain custody of exhibits. That reduces the chance of loss and preserves their integrity. If the court is resistant to this suggestion, maybe you can compromise and agree to pick up the originals after the period of filing a notice of appeal has expired.

Be careful when you cut-and-paste from Lexis or Westlaw into your briefs

2013-01-08T06:58:40Z

Happy New Year!

I hate starting out 2013 by bitching but I think this might be a valuable tip for attorneys. I have observed the tendency to cheat a bit and lift entire sections from published opinions on Lexis or Westlaw. Just the other day, I was reading a brief and I was impressed with the quality of the writing. I have to admit I was a little surprised because the attorney's past work product didn't reflect such brilliance. The paragraphs seemed to be original with no quotation marks to show the start/finish of a quote. And then I saw it! The proprietary markings of Lexis, including underlining, asterisks, hyperlinking, and pagination from the various source materials. The attorney had actually plagiarized entire sections from an opinion! Let's say you are not lifting material but merely quoting it. You still need to remember to take out the characters and formatting inserted by Lexis or Westlaw, so that your "quote" is really how the language appears in case law. Just because a case cite or language is underlined on your monitor does not mean that it is underlined in the case itself. If you add emphasis to the quotation, be sure to note that as "emphasis added." If the original writer has emphasized a word or phrase, be sure to note that as well as "emphasis in original." Being sloppy can cost you, especially in credibility.