Here is an appellate procedure trick I wish I'd thought of.

Unlawful detainers are designed for speedy adjudication of landlord/tenant disputes. But there was one way a tenant could readily delay the process by several weeks or months (in this particular case, by over two years): by filing a motion to quash the complaint. A motion to quash extends the time to respond to the complaint. And when it's denied, the defendant has a statutory right to file a writ petition. The writ petition effectively stays the UD action.

And this de facto stay is free (except for attorney fees). Compare that to the stay the tenant could try to get after a unlawful-detainer judgment, which, in addition to showing extraordinary harm, requires payment of rent.

But the California Supreme Court now holds that that deal, sweet for the tenant but rather sour for the landlord, is not the law.

The case of Stancil v. Superior Court (San Mateo) (May 3, 2021) S253783, involves the Docktown area of Redwood City. As reported in local news, Docktown hosts a series of berths where residents live in "floating homes." But the city decided to redevelop the area and relocate the Docktown tenants, including Stancil. Tenant Stancil refused to surrender his berth, and the landlord city filed an action for unlawful detainer.

Tenant shot back with a motion to quash, raising a jurisdictional issue (that the port department, not the city, was the proper plaintiff). Tenant argued a prior case, Delta Imports, approved raising this standing issue via a motion to quash. Landlord argued only personal jurisdiction may be raised in a motion to quash, per another case, Borsuk, which disapproved Delta Imports.

The trial court denied tenant's motion, ruling his objection had to be raised via demurrer. Tenant filed a petition for writ of mandate, which was denied. The Supreme Court granted review in March 2019.

The Court rejected tenant's motion to quash, concluding that "Nothing in the statutory language turns a motion to quash into a handy all-purpose tool for taking on the factual support for particular causes of action or the merits of a complaint." In the UD context, a motion to quash may be used only to challenge a defect in the summons, or to challenge personal jurisdiction.

In the future, tenants should not plan on obtaining a de facto stay by filing an improper motion to quash. That clarity, ironically, comes by way of the Court's having given the tenant in Stancil a two-year de facto stay while awaiting its decision. The law works funny that way.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

In September 2020, we reported that the Fourth District held Amazon liable in strict liability for an exploding battery sold on its online store, because Amazon inserted itself into the chain of distribution when it charged for the purchase, and stored, packaged, and delivered the product. Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431 (Bolger). Seven months later, the Second District eagerly followed suit in Loomis v. Amazon.com LLC (D2d8 Apr. 26, 2021) B297995 (published).

The plaintiff in Loomis bought a "hoverboard" on Amazon, and while charging it on her bed, the hoverboard ignited fire, injuring the plaintiff when she doused the fire, which had also spread to her bed.

The trial court granted summary judgment for Amazon. But the Second District reversed, complete with a law review article-grade opinion.

Amazon argued Bolger was wrongly decided, arguing Amazon is a mere "facilitator." Amazon's involvement in the sale in Loomis was rather less involved than in Bolger, as unlike the seller in Bolger, the seller here maintained custody over and title to the product until the sale.

But the Second District still readily agreed with Bolger, finding Amazon fit squarely within the traditional strict-liability rubric, as the sale itself and all communications were funneled through and controlled by Amazon.

Justice Wiley's concurring opinion suggests he would have voted twice for reversal given the chance. "This case is easy," said Justice Wiley. "Once Amazon is convinced it will be holding the bag on these accidents, this motivation will prompt it to engineer effective ways to minimize these accident costs. Tort law will inspire Amazon to align its ingenuity with efficient customer safety. Customers will benefit." “Thus we have an easy case that beautifully illustrates the deep structure of modern tort law: a judicial quest to minimize the social costs of accidents—that is, the sum of the cost of accidents and the cost of avoiding accidents.”

That is rather more sugar in my tea than suits me. But we know where Justice Wiley stands.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

What's the worst can happen by taking an appeal too early? I am asked this often (and I've discussed related topics here and here), and the California Supreme Court case of Kurwa v. Kislinger (2017) 4 Cal.5th 109 always comes to mind. The worst that can happen? Five years of litigation, four trips to the Court of Appeal, two trips to the Supreme Court, and easily six figures in fees, just to get back to where you were when you first asked that question.

The nub of the problem in Kurwa was that plaintiff had two obstacles to appealability. Plaintiff used a too-clever-by-half ploy to get around one (stipulating to waiver of his remaining claim without prejudice, and a tolling agreement to boot). After realizing on appeal this could not create jurisdiction, plaintiff dismissed the rest of his claims with prejudice.

But there was a second obstacle: defendant's cross-claim was still pending. And because the trial court refused to dismiss the judgment based on the ill-conceived stipulation, plaintiff was stuck "in a legal cul de sac."

Solution: The Supreme Court clarified nothing prevented the trial court from vacating the defective original judgment based on the ill-conceived stipulation, at which point it should then adjudicate the cross-claims. Then, and only then, could the court enter a final, appealable judgment.

Here is what happened in Kurwa. Opthamologists Kurwa and Kislinger formed a corporation to treat HMO patients. After about a decade of operation, Kurwa had his license suspended and was put on probation. Kurwa's licensing snafu terminated the practice's HMO agreement, so Kislinger formed a new corporation to take over the practice.

Kurwa sued for breach of fiduciary duty and defamation. Kislinger cross-complained for defamation.

The First Appeal: Dismissed for Manufactured Jurisdiction

The trial court dismissed Kurwa's fiduciary duty claim, and Kurwa appealed. Before he could appeal, however, both Kurwa and Kislinger acknowledged the pending defamation claim and cross-claim stood in the way of appealability. So they filed a stipulation dismissing those claims without prejudice, subject to a tolling agreement, so they could "test the issue" on the defamation claim in the Court of Appeal, after which the parties "may reinstitute" their claims.

The trial court entered judgment on that stipulation in August 2010, and Kurwa appealed.

The Court of Appeal did reverse in Kurwa's favor. But the Supreme Court reversed the Court of Appeal, holding the underlying judgment was not appealable, it being the product of manufactured appellate jurisdiction.

Attempts to Undo the Damage:

Back at the trial court, Kurwa moved to rescind the parties' ill-conceived stipulation. But the trial court refused. (Writ relief was denied, and Supreme Court review was denied.)

Kurwa then moved to add a claim to rescind the stipulation. But the trial court rejected this too. (Writ relief denied; Supreme Court review denied.)

Missed It By That Much:

Finally, Kurwa filed a Request for Dismissal, with prejudice, of his remaining defamation claim. Dismissal was entered in June 2015, and Kurwa appealed.

The Court of Appeal dismissed the appeal of the June 2015 dismissal as taken from the August 2010 judgment, and thus dismissed it as untimely. (Which brings to the case, by this point, just a touch of the ridiculous.) The court also noted, correctly, that the same problem as ever still exists: "Kislinger's cause of action in the cross-complaint remains outstanding."

Kislinger had case law to support him, but so did Kurwa. Kurwa relied on his case law for the proposition that, while the general rule is that a judgment based on a dismissal without prejudice is not final, that rule does not apply "where the party dismissing causes of action without prejudice is the respondent on appeal." (Vedanta Society of So. California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 525, fn. 8.) That is, the respondent cannot jam up the appellant's right of appeal simply by the artifice of filing a without-prejudice dismissal. (A sound holding, in this commentator's view.)

But the Court did not weigh in on this point, because there was still not a final judgment. The 2010 judgment obviously was not final, and even ignoring the still-pending cross-complaint, Kurwa's dismissal of his remaining claims could not "retroactively alter[] the character" of the earlier non-final judgment, the time to appeal from which has long since expired. (This all still seems to me a touch ridiculous, and it is not how other Courts of Appeal have approached similar problems in my experience; notwithstanding Kurwa, courts may still deem the appealable order in such a case to be the subsequent dismissal, not the original, non-final judgment. More clarity on this point, then, is still needed.)

The Path Forward:

Instead, here is what the Supreme Court instructed the trial court and the parties to do: The trial court, having never entered a final judgment against any party, was free to vacate its nonfinal judgment. Doing so would hit the reset button before the parties' stumbled into the appellate procedure underworld. At that point, the cross-claim for defamation must be adjudicated or dismissed with prejudice. Then, at last, a final judgment may be entered from which an appeal may be taken.

Partial adjudications and dismissals can create a quagmire of procedural problems. In some instances, a partial adjudication may fully dispose of claims as to some parties, and thus an appellant must appeal. Other adjudications that leave claims or cross-claims pending concerning a party should not be appealed.

Client asks an attorney to file a lawsuit over a business dispute.

"Your lawsuit has merit," the attorney says, "but it will cost more than it is worth. Based on my normal fee it would not make sense."

"I understand, but this is about vindicating a principle."

While considering this a bit irrational, attorney says to himself, "What else can I assume but that he knows his own mind?"

By the time a year passes the client has stopped paying.

"Your lawsuit is progressing nicely," the attorney informs the client, "but there is still the matter of my fee."

"Your fee? Your fee is now more than the lawsuit is worth!"

"But remember," the confused lawyer responds, "this lawsuit is about principle. You said money was not important!"

"But now remember what you said: that your normal fee did not make sense in this case. So I assumed you understood the principle was more important than your fee.

"After all," the client goes on, now slightly indignant, "I am principled, but I am not stupid."

"But why should I sacrifice for this principle?" responds the attorney.

"How should I know?" answers the client. "What else could I assume but that you knew your own mind?"

He who does business with one he deems a fool, is himself the greater fool.

Attorneys are aware how important it is to confirm the precedential value of a case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it. Practitioners may be aware that, until a 2016 change to the rules, when the Supreme Court granted review of a published appellate decision it became non-citable instantly. So if you had found the perfect decision on all fours with your case, you would pray the Supreme Court would leave your smoking-gun case well alone.

That changed five years ago when California Rules of Court rule 8.1115 was amended. With that amendment, the mere granting of review of your published smoking-gun case did not itself depublish it. It was a welcome change.

This week, however, the Supreme Court amended rule 8.1115. Fortunately, the amendment is arguably rather sensible. But it is not the kind of amendment that actually amends the rule itself. The Supreme Court does not want to confuse things. Instead, the amendment just requires practitioners to follow a new administrative order. And the Advisory Committee Comment to the rule. And maybe a few cases.

Again, the Supreme Court does not want this to be confusing.

As David Ettinger reports, under the new procedure, whenever the Supreme Court grants review, the order granting review "incorporates" the Court's April 21, 2021 Administrative Order. That order to be incorporated in all future orders granting review of published Court of Appeal decisions provides that the decision may still be cited for persuasive value and also to "establish[] the existence of a conflict." Based on that conflict, trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict."

The change appears to be this. Previously, when your recent "smoking gun" appellate decision disagreed with a prior appellate decision, and the Supreme Court granted review of your recent smoking-gun decision, a trial court was bound under the text of rule 8.1115 and Auto Equity Sales to follow the prior decision. That is because, while your recent smoking-gun decision was not automatically depublished, its value was diminished by the grant of review to "potentially persuasive only" (rule 8.1115(e)(1)), while the prior decision still enjoyed absolutely binding effect under Auto Equity Sales. Apparently the Court felt that, given it was just as likely to overturn the prior decision as your recent smoking-gun decision, there was no reason the rule should favor one over the other while review was pending.

Shorter: While Supreme Court review is pending, you can still cite your smoking gun case, and the trial court may follow it, even if another appellate court disagrees with it. 

But that is not quite all. To learn about a further amendment to the rule, we need to look to the Comments. The new Comment confirms that, when your recent smoking-gun case is taken up for review, trial courts are not required to follow it "on the issue in conflict." Which makes sense. But then comes something rather more surprising: "Nor does such a Court of Appeal opinion ... have any precedential effect regarding any aspect or holding of the Court of Appeal opinion outside the part(s) or holding(s) in conflict."

Meaning, if your smoking-gun case was taken up for review on an issue completely separate from your smoking-gun issue, the case loses precedential effect on your smoking-gun issue, too, as collateral damage.

Mr. Ettinger also notes the changes are not retroactive. So for grants of review before April 21, 2021, you will have to look to the old rule 8.1115. Which is to say, to the same language of 8.1115, which the Supreme Court has not changed in any event. Just forget everything else we just said.

Again, the Supreme Court does not want any of this to be confusing.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

The recent case of Rubio v. CIA Wheel Group (D2d8 Apr. 15, 2021) no. B300021, reminds that awards of punitive damages are reviewed independently by the appellate courts. Rubio also provides a nice illustration how dicta – observations made by prior courts that are not part of their holdings – may be used effectively.

In Rubio, an employee claimed she was wrongfully terminated because she had cancer. Employee died during the first trial, resulting in a mistrial. During the second trial, employer lied about having knowledge of employee's cancer. After reminding employer's witness he was under oath, the judge asked why else did he think employee, previously a top sales person who now looked pale, gaunt, and used a wig, needed medical leave "for three months? A cold?"

The court awarded employee's successors $15,000 in economic damages. While plaintiff proved $100,000 to $150,000 in noneconomic damages, the judge ruled these were nonrecoverable now employee had passed away. But the court still used this amount in fashioning an award of punitive damages of $500,000.

Employer appealed, arguing the punitives award, at 33 times the amount of recoverable damages, as unconstitutionally excessive.

Independent Standard of Review on Appeal of Punitive Damages Awards:

In affirming the award, the Second District first observed the well-known "three guideposts" for reviewing punitive damages awards under State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408, 416-418 [155 L.Ed.2d 585123 S.Ct. 1513] (State Farm): (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.' (State Farm, supra, 538 U.S. at p. 418; see also BMW, supra, 517 U.S. at p. 575.)" (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 712.)

But less well-known is that, on appeal, these guideposts are reviewed independently, with no deference paid the trial court:

"We review a punitive damages award "de novo, making an independent assessment of the reprehensibility of the defendant's conduct, the relationship between the award and the harm done to the plaintiff, and the relationship between the award and civil penalties authorized for comparable conduct. [Citations.] This '[e]xacting appellate review' is intended to ensure punitive damages are the product of the ' " 'application of law, rather than a decisionmaker's caprice.' " ' " (Simon, supra, 35 Cal.4th at p. 1172.) "[F]indings of historical fact made in the trial court are still entitled to the ordinary measure of appellate deference." (Ibid.)"

This helps explain the lengthy analysis provided in the opinion.

Effective Use of Dicta: 

Ultimately, the court agreed it was proper to consider harm beyond recoverable economic damages. In so doing, the court relied on the California Supreme Court decision in Simon, which stated the United States Supreme Court precedents "appear to contemplate" that such reliance may be permissible.

But that is mere dicta, appellants understandably pointed out. "Perhaps," the court conceded, before ultimately finding it persuasive.

" 'Dicta consists of observations and statements unnecessary to the appellate court's resolution of the case.'" (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1158.) The court noted that while the point in question arguably was obiter dictum, it was "not clear" that the alleged dicta in Simon "was unnecessary" to the holding in that case. The court then noted that appellants did not otherwise challenge the reasoning. Finding the alleged dicta persuasive, the Rubio court adopted it.

Held: A trial court may properly consider the noneconomic damages in the baseline for a punitive damages award. Combining economic and noneconomic damages here to make the range of harm $115,000 to $165,000, the $500,000 award of punitive damages reflected a multipler of 3.5, which the court held to be permissible.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Facing an adverse judgment, considering a motion for new trial is a must. But beware: win or lose, the order on a motion for new trial can result in thorny procedural issues, both in the trial court and on appeal.

A case in point. Contrares-Velazquez v. Family Health Centers of San Diego, Inc. (D4d1 Apr. 7, 2021) no. D075577, a disability discrimination case concerning repetitive stress pain, involved a retrial after a partial new trial motion (which had been affirmed on prior appeal). This time around, the jury awarded the previously unsuccessful plaintiff almost $1 million in compensatories and $5 million in punitives. But the trial court partially granted a JNOV motion and reduced the punitives award to under $2 million, ruling due process limited punitives to double the compensatory award. Defendant appealed, seeking further reduction, and plaintiff cross-appealed, seeking reinstatement of the original award.

One more wrinkle: Way back at the new trial motion after the first trial, the court only granted a new trial on three of the seven claims that defendant had successfully defensed. The new trial order on those three claims, defendant pointed out, did not throw out the jury's verdict that plaintiff was not able to perform with reasonable accommodation. This would factor largely in the balance of the proceedings.

Why new trial motions are important:

To back up just a moment to the first appeal, Velazquez had filed a successful new trial motion after the jury found her evidence wanting. The trial judge disagreed, finding the "weight of the evidence" supported a judgment for plaintiff. A finding that was affirmed on the first appeal under the "substantial evidence" standard of review.

Why mention this? Because the only way this favorable result for plaintiff was possible was through a new trial motion. Had plaintiff simply appealed, the verdict would have been affirmed under the deferential "substantial evidence" standard. Actually, worse than that: when a plaintiff loses a claim for failing to meet its burden of persuasion, the matter is at an end, and the finding is beyond appellate review: “In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.” (Sonic Mfg. Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.))

But on a motion for new trial, the trial judge was not so confined. Instead, the judge was required to consider the "weight of the evidence." That means even a party who failed its burden of proof – who would have no shot on appeal – can get a different result via a new trial motion.

Only through a new trial motion was this result possible. An appeal alone would have been futile.

On retrial, court is not bound by findings in first trial (but this commentator is not so sure):

Fast-forward to the current appeal. After plaintiff achieved an order of partial new trial on three of her claims – after the jury skunked her at the first trial on all seven of them – plaintiff found her groove at the retrial and prevailed. Contrary to the first jury, the jury on retrial found that plaintiff could have performed her duties had defendant afforded reasonable accommodations.

To which defendant was prepared with an interesting argument. The first jury, defendant reminded the court, had returned a special verdict that plaintiff could not perform, regardless of reasonable accommodations. That is, plaintiff was hyper-sensitive and there was nothing to be done for her. That verdict, defendant went on, was not ordered to be retried as part of the new trial order. Thus, it was still binding on the trial court under the doctrine of issue preclusion. (As explained below, while this author believes defendant's argument has merit, defendant perhaps was misguided to cast it as a preclusion argument.)

As ability-to-perform was an essential element of plaintiff's three claims on retrial, defendant went on, those claims must fail.

Driving the point home further, defendant also noted the prior findings should survive because they were never vacated or reversed. Plaintiff did not even challenge the finding in the first appeal. So she should not be permitted to raise it now.

But the Court of Appeal rejected defendant's argument, and did not even express any misgivings in doing so. The court held that the first jury's special verdicts, though never vacated by the partial new trial order, were not "final." No finality, no preclusive effect.

A Comment: 

The court's observation on this point is, of course, true. And perhaps the outcome is correct (or perhaps not). Yet there is another itch to defendant's argument that the court does not quite scratch.

Again, the court is right about preclusivity. That doctrine applies to judgments. And a new trial order – even a partial one – vacates the entire judgment:

“When [the] court grant[ed] [the] partial new trial, ‘the new trial order ha[d] the effect of vacating the entire judgment and holding in abeyance the portions which [were] not subject to a new trial until one final judgment [could] be entered.’ ” (Newstart Real Estate Investment LLC v. Huang (2019) 37 Cal.App.5th 159, 163–164, quoting Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 329 (Beavers).) Thus, “there was no final judgment; it was vacated by operation of law” when the trial court granted the partial new trial. (Newstart, at p. 164; see Ferraro v. Pacific Finance Corp. (1970) 8 Cal.App.3d 339.)

The reason the entire judgment is vacated, even though the new trial is only partial, is to avoid possible violation of the "one final judgment" rule. (Beavers, supra, 225 Cal.App.3d at p. 329; Love v. Wolf (1967) 249 Cal.App.2d 822, 840.) (Though I would note that, given the countless exceptions to the rule, this is rather in the vein of defending the chastity of a prostitute, or the sincerity of a politician.)

So the judgment was vacated. Got it. But what about the special verdicts that were "held in abeyance"? Those verdicts favored defendant. They stood after the partial new trial order, as though decided in a first phase of a bifurcated trial. Then the second jury on the partial new trial returned verdicts on the same issues, but this time against defendant. Faced with two sets of verdicts on identical issues, the trial court credited the latter verdicts, for no apparent reason except one set was more recent. Defendant appealed. It is settled that “[t]he appellate court is not permitted to choose between inconsistent answers.” (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092.) Yet that seems to be what the court did here.

(Perhaps the court could have resolved the issue by ruling, nunc pro tunc, that the prior partial new trial order was now ordered in its entirety? But then that would give rise to defendant's right to appeal those other portions of the order, and that appeal had already been taken and decided. So this option seems fraught.)

According to the court, defendant's arguments on appeal were a little different than that. Defendant argued that the first verdicts were "final" because plaintiff did not challenge them in the first appeal. But the court rejected this, explaining that plaintiff's appeal after the partial new trial order would have been only a "protective cross-appeal," which is "only operative if the order granting the new trial is reversed." (Quoting Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 798-799.) So plaintiff did not have a direct right of appeal of that partial new trial order.

But here again, I am not so sure. Not two weeks after the Velazquez opinion, the Second District Court of Appeal decided Instant Infosystems, Inc. v. Open Text, Inc. (D2d5 Apr. 20, 2021) no. B297123 (not published) (discussed here), also involving a partial new trial order. The Second District there rejected respondent's argument that the order there denying new trial was therefore not appealable. Although denials of new trial motions are not appealable, the order there only partially denied new trial, and partially granted it: “[I]t is well established that a party seeking a new trial on all issues is an ‘aggrieved party’ when only a partial new trial is granted, and may appeal therefrom.” (Liodas v. Sahadi (1977) 19 Cal.3d 278, 285.)

So it would seem that defendant Family Health had a point: the partial denial of plaintiff's new trial motion was appealable, and that by declining to appeal it, she could not continue to challenge them.

But the Fourth District did not think so: we reject Family Health's claim that a party can always seek immediate review of any portion of a judgment unaffected by a partial new trial order."

This suggests the authorities may be split on this issue. Or if not split exactly, then rather unclear.

It takes a gambling sort to go it alone on a new trial motion.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Here is an easy way to get tripped up. A new trial motion is a common postjudgment motion that must be raised to preserve certain issues for appeal (most commonly excessive damages). If the court denies your new trial motion, the denial is not an appealable order. But if the court only partially denies the new trial motion – and partially grants it – that order is appealable.

Put otherwise, an order granting a motion for new trial is appealable. If you are unhappy that the court only partially granted your motion, you must appeal that partial grant.

In the breach of contract claim and cross-claims at issue in Instant Infosystems, Inc. v. Open Text, Inc. (D2d5 Apr. 20, 2021) no. B297123 (not published), the jury returned a mixed verdict. The trial court partially granted defendant's new trial motion on one issue (relating to damages), but denied the rest of the motion.

Defendant appealed the trial court's mixed ruling on its new trial motion.

Hoping to seize a technical advantage, plaintiff urged that an order denying a motion for new trial is not appealable. (Code Civ. Proc., § 904.1(a)(4).)

The court rejected plaintiff's argument. “[I]t is well established that a party seeking a new trial on all issues is an ‘aggrieved party’ when only a partial new trial is granted, and may appeal therefrom.” (Liodas v. Sahadi (1977) 19 Cal.3d 278, 285.) It does not matter that OpenText did not move for a new trial on all issues. The principle permitting appeal of a partial denial of a motion for a new trial (see generally Spencer v. Nelson (1947) 30 Cal.2d 162, 164) applies with equal force regardless of whether the appellant moved for a new trial on all or only some issues.

Posttrial motions are critically important in an appeal and an excellent time to consult appellate counsel.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

The Second District Court of Appeal has the latest update in the fight over Charles Manson's estate.

As previously reported in Forbes and elsewhere, there are three principal players in the dispute. First is Charles Manson's penpal and memorabilia collector Michael Channels. Channels purports to be the sole beneficiary of the Manson estate under a disputed 2002 will. But Channels was the sole witness to the will (generally two witnesses are required). And Channels was not present during the signing.

Second is Jason Freeman, Manson's grandson by his recognized son, Charles Manson, Jr. (Manson, Jr. later changed his name and committed suicide). Freeman has petitioned to be appointed administrator of the Manson estate.

Third is Matt Lentz, a putative grandson of Manson's by an unrecognized Manson child.

After Manson died in 2017, the Kern County Superior Court ordered Freeman was the sole surviving adult next of kin, and authorized to determine the disposition of Manson's remains. Channels disputed Freeman's kinship, and moved for genetic testing under Probate Code section 6453.

But there is no authority to require genetic testing under section 6453. So held (and without much trouble, really) the Second District in Freeman v. Channels (D2d2 Apr. 13, 2021) no. B303594 (not published).

Appeal of Nonappealable Order Treated as Petition for Writ of Mandate:

Before reaching the question, however, the court found a jurisdictional defect. The court concluded the order appealed was not an appealable order. "If an appealed order is not made appealable by the Probate Code, an appellate court lacks jurisdiction to consider the appeal. (Katzentstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 771.) Ordinarily, an appellate court must dismiss the appeal on its own motion. (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.)"

This is an odd finding, because Probate Code section 1303(f) expressly makes appealable orders "determining heirship, succession, entitlement, or the persons to whom distribution should be made." That seems fairly close to what was appealed here.

But that is not now the Second District saw it. "Here, the question is whether the order compelling genetic testing qualifies as one of those appealable orders." The order compelling genetic testing, the court continued, did not determine any rights in the estate. "At most, the order might be a precursor to a future order regarding whether Freeman is an heir."

This is an important nuance in understanding how appellate courts approach appealability. As the court would go on to hold, the probate court's order was wrong as a matter of law. It denied Freeman's rights of heirship unless and until he performed an act the court was powerless to require. In effect, it denied his right of heirship.

But in effect is not enough to establish appealability. To make the order appealable, Freeman would have had to refuse to comply with the improper order, await the claims of Channels and Lentz sort themselves out, all while dear granddad's body awaited its final rest (theoretical in this particular case). Only when all that had sorted out could Freeman then appeal.

As the court noted, “ ‘[A]n order is appealable, even if not mentioned in the Probate Code as appealable, if it has the same effect as an order the Probate Code expressly makes appealable.’ [Citation.]” (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125–1126.) The circumstances here seem to me to fit that rule. But the court did not pursue this option.

Instead, the court treated the appeal as a petition for an extraordinary writ. (Olson v. Cory (1983) 35 Cal.3d 390, 400–401 [if there is no adequate remedy at law]; Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055 [if the circumstances are unusual].)

The other "Olson factors" for treating an appeal as a writ are not addressed in the opinion. They are: (1) exigent/unusual circumstances; (2) treatment as a writ would not burden courts with review of intermediate orders; (3) appealability is unclear; (4) all other substantive issues have been resolved; (5) issue taken up has been fully briefed and argued; and (6) there is an adequate record for review, including in substance all elements of a writ petition. (Olson v. Cory, supra, 35 Cal.3d at 401; see also Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 744-747 (accord).)

Here, the court exercised its discretion to treat the appeal as a writ petition. "Because the matter at issue is an order compelling a genetic test, and because that test will involve an invasion of Freeman's privacy that cannot be undone, we exercise our discretion to treat this appeal as a de facto petition for writ of mandate. The issues have been fully briefed by the parties, the record is adequate for review, and this is an unusual circumstance in which Freeman has no adequate remedy at law."

So Freeman will get to handle the disposition of Manson's remains. He is legally (perhaps strictly so) the prevailing party.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

... not when the clerk happens to get around to filing it.

In recent months – even before Covid, but even more since – I have seen clerks failing to promptly process filings. You have probably noticed it, too. Depending on the filing, this may create problems. For a notice of appeal, which has jurisdictional consequences, the date of filing is a matter of life or death to an appeal.

So what happens if you submit the notice of appeal timely, but the clerk does not actually "file" it until it is untimely?

Answer: Don't worry, the notice of appeal is deemed filed when the clerk receives it. You are not responsible for heaven-knows-what the clerk does with it after that.

J.M v. Los Angeles County Dept. of Children and Family Services (D2d2 Apr. 12, 2021) no. B305486 (not published), involved a drug-and-alcohol-abusing father who took care (in a very loose sense) of his three small children after mother, who, not to be outdone, abused even worse drugs, beat the kids with a cord, and ultimately got herself incarcerated. Father, fancying himself rather more stoical, styled his drug abuse as the "I can quit anytime I want" variety, though with desire never quite toggling to the on position.

Father never did dry out, and ultimately the trial court ordered the children removed from his custody. Father appealed.

Appellant filed his notice of appeal on the 56th day of the 60-day window to appeal. But the Superior Court clerk apparently refused to "file" the notice of appeal. Instead, the clerk demanded "one appeal per child." (No explanation given, either by the clerk or the Court of Appeal. There is no CCP or Rule of Court I am aware of that requires this. But clerks sometimes have strong, inexplicable, immovable opinions about certain things.)

Father promptly complied. But the clerk did not get around to "filing" the notices of appeal until March 17 – one day after the 60-day window to appeal expired.

Held: The appeal was timely. Fortunately, neither appelants' right to appeal nor the Court of Appeal's jurisdiction are at the mercy of a clerk's filing idiosyncrasies:

"We deem Father's appeal to be timely filed. A notice of appeal delivered “within the requisite period and rejected by the clerk for reasons having nothing to do with timeliness” satisfies court rules. (Pangilinan v. Palisoc (2014) 227 Cal.App.4th 765, 769–770 [rejected appeal bore the wrong case number].) “The act of delivering the document to the deputy clerk at the court during office hours constituted the act of filing.” (Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1172; Cal. Rules of Court, rule 8.25(b)(1) [“A document is deemed filed on the date the clerk receives it.”].)"

But, it availed father nothing. As to the merits, the order stands.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

In this appeal of a relatively rare denial of a petition to compel arbitration, Presiding Justice Gilbert and Justice Tangeman each authored an opinion. After you read Gilbert's opinion, you will surely agree with it. But then read Tangeman's opinion, and tell me you haven't changed your mind.

In Wells Fargo Bank, N.A. v. Agak (Apr. 12, 2021) no. B300635 (unpublished), the bank sued to collect a $17,000 consumer debt. The consumer defendant answered, asserting a contractual right to arbitrate. But the bank did not invoke arbitration.

Instead, the bank happily litigated for over a year and a half.

A year-and-a-half later, defendant filed a cross-complaint. The cross-complaint sought leave to allege the bank illegally imposed a "credit defense" fee, turning the cross-complaint into a class action.

This got the bank's attention. The bank removed to federal court. But the district court remanded, sending the case back down (and threatened sanctions against the bank for its improper removal).

Back in state court, the bank petitioned, unsuccessfully, for arbitration.

On appeal, the majority affirmed, and the analysis went as you would expect. The bank was found to have waived arbitration, a finding of fact determined by evaluating the six factors of St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 (St. Agnes).) The finding is reviewed on appeal for substantial evidence. The factors are: (1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether the parties are well into preparation for the lawsuit before a party notified the opposing party of the intent to invoke arbitration; (3) whether a party delayed for a long period before seeking a stay; (4) whether a party seeking arbitration filed a counterclaim before seeking a stay; (5) whether important intervening steps such as discovery procedures not available in arbitration had taken place; and (6) whether the delay affected, misled, or prejudiced the opposing party. (St. Agnes, supra, 31 Cal.4th at p. 1196.) Although the trial court may consider these factors, no single test determines the nature of the conduct that constitutes a waiver of arbitration. (Id. at p. 1195.)

(Side note: It is true that a finding on waiver of the right to arbitrate is a factual finding, and thus reviewed for substantial evidence rather than abuse of discretion. (Burton v. Cruise (2010) 190 Cal.App.4th 939, 945-946.) P.J. Gilbert accused Justice Tangeman of confusing the two. But you tell me: what else are some of the St. Agnes factors – particularly factor 6: consideration of prejudice to the nonmoving party – but a purely discretionary consideration having little to do with the petitioner's intent?)

The majority reasoned that the bank had notice of defendant's cross-claims in October 2018 when defendant sought leave to add its class-action cross-claims. But the bank's ill-fated trip to federal court did in its right to aribtrate, raised seven months later. The bank also attended case management conferences without raising arbitration.

Dissenting, Justice Tangeman said that seven months and a few measly CMCs make too thin a reed on which to hang an arbitration waiver, which is "not to be lightly inferred," and for which the proponent "bears a heavy burden of proof." (St. Agnes, supra, 31 Cal.4th at p. 1195.) Besides, it was only five months – not seven – from the time defendant filed its game-changer class-action claim. And during that five months, Wells Fargo raised arbitration five times and took no other acts inconsistent with arbitration.

The clincher: The parties' arbitration agreement expressly excluded arbitration of consumer debt claims. Thus, Tangeman reasoned, arbitration was never even available to the bank until defendant amended his cross-complaint a mere five months before the bank invoked arbitration. By drawing on factors before that time, Tangeman reasons, the majority was "penalizing Wells Fargo for not taking actions it was legally barred from taking."

The Upshot: If you decide to litigate despite having a right to arbitrate, consider raising a reservation of the right to arbitrate should new arbitrable claims or defenses be raised. Answers and CMC statements may be a good place to leave these breadcrumbs.

Be prepared for litigation to change shape. Retaining appellate counsel early is a good way be prepared for unexpected turns.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

While the parties were clearing up their eviction matter, the tenant-plaintiffs in Mayorga v. Mountview Props. Ltd. (D2d5 Apr. 9, 2021) no. B298284, noticed that landlord-plaintiff had not answered their complaint. So they pounced: they took landlord's default, and got a default judgment of nearly $500,000.

When landlord got notice of the default judgment nearly a year later, he moved to set aside the default judgment. The trial court granted landlord's motion, which the Second District Court of Appeal affirmed.

Under Code of Civil Procedure section 473, relief from default or default judgment is available due to "mistake, inadvertence, surprise, or excusable neglect," if sought within six months of the default (not the default judgment). But even outside the six-month period, the court still has inherent authority to set aside on equitable grounds such as extrinsic fraud or extrinsic mistake. (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29 (Kramer).)

“A party seeking relief under the court's equitable powers must satisfy the elements of a ‘stringent three-pronged test’: (1) a satisfactory excuse for not presenting a defense, (2) a meritorious defense, and (3) diligence in seeking to set aside the default. [Citation.]” (Kramer, supra, 56 Cal.App.5th p. 29.)

Landlord-defendant satisfied the test here: The half-million dollar judgment very likely would have been reduced in light of his mitigation efforts; he reasonably assumed his eviction attorney was handling the civil matter; and he moved to set aside within a month of being served with the default judgment (which followed nearly a year after the entry of default, which plaintiffs had not served).

Order setting aside default judgment affirmed.

A Note on Civility, and Apologies:

It is common for an appellant to be tempted to use heated rhetoric on appeal. But here, it was the landlord-respondent's counsel whom the Court needed to take aside for a minor scolding. In a footnote, the Second District stated:

"Respondents’ counsel's opprobrium of appellants—referring to their “sloth and stealth” and their purported “extreme lack of hygiene” among other things—is unnecessary to the resolution of the issues on appeal, and violates the “civility oath” as well as civility guidelines. (See Cal. Rules of Court, rule 9.7 [“As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”]; see Cal. Attorney Guidelines of Civility and Professionalism, Introduction (2007), p. 3 <https:/www.saccourt.ca. gov/local-rules/docs/guidelines-civility-professionalism.pdf> as of April 1, 2021, archived at <https://perma.cc/X6XH-QVYE> [Attorneys’ “obligation to be professional ... includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.”].)"

Yet aside from this statement, tucked away in a footnote after resolving the case in favor of the offender's client, the Court took no further action: "We see no need to take further action in light of counsel's apology at oral argument."

In fact, far from sanctioning respondent or his counsel, the Court even still awarded respondent his costs on appeal.

The Lesson: If you've gotten a little carried away, a conspicuous and earnest apology can make up a lot of ground.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.