In a surprising split-decision, the Second District held trust beneficiaries who voluntarily decline to participate in mediation forfeited all rights to object to the mediated settlement.

In Breslin v. Breslin (D2d6 Apr. 5, 2021) no. B301382, the settlor of a trust valued at upwards of $3 million provided for gifts to many charitable and nonprofit organizations. Those groups were listed on an exhibit that, unfortunately, was not attached to the trust. The trustee found a document elsewhere that appeared to be the attachment, listing 24 groups, including Pacific Legal Foundation. The trustee sought confirmation of the list.

Rather than decide the question, the probate court ordered mediation. Notice was given to all the interested parties. But only three of the listed charities participated in the mediation. Pacific Legal was among those who chose not to participate.

Seizing their moment, the participating parties struck a deal dividing the trust corpus amongst themselves, cutting out the non-mediating parties. The probate court approved the settlement over Pacific Legal's objections, on grounds they did not appear at the mediation.

Pacific Legal appealed. But the Second District affirmed.

The Breslin court held that Pacific Legal and the other parties who chose not to participate in mediation forfeited several procedural and substantive rights. Voluntary non-participation in court-ordered mediation forfeited the right to an evidentiary hearing. It forfeited their right to a determination of factual issues. And it forfeited their interests in the trust.

(If there were any rights that were not deemed forfeit, the majority did not mention them.)

Pacific Legal's key procedural misstep here appears to have been failing to appear at the initial probate hearing. Had they done so, "they would have had the opportunity to object to mediation." (To what effect, however, the majority does not say.)

Dissent Notes Forfeiture Offends Testator's Intent:

The opinion was first issued on January 26, 2021. Following rehearing, however, Justice Tangeman withdrew from the unanimous opinion and lodged a dissent.

Justice Tangement observed that a too-cavalier forfeiture rule offends the testator's intent, upturning the trust design merely "because [the beneficiaries] did not satisfy a requirement [the testator] did not impose: participation in mediation at their expense. In effect, the court imposed a terminating sanction against the nonappearing beneficiaries."

Moreover, Justice Tangeman noted that "[a] charitable gift must be carried into effect if it "can possibly be made good." (Estate of Tarrant(1951)38 Cal.2d 42, 46.) The majority's newfound requirement that a party participate in mediation before it can inherit ignores this command."

For my part, I agree with Justice Tangeman. And I have two additional concerns about the majority's opinion, concerns not addressed either by the majority or by the dissent:

Many Other Authorities Caution Against Involuntary Mediation:

The majority began by stating the probate court "has the power to order the parties into mediation." The court cited Probate Code 17206. But section 17206 does not refer to mediation. Section 17206 says, in its entirety: "The court in its discretion may make any orders and take any other action necessary or proper to dispose of the matters presented by the petition, including appointment of a temporary trustee to administer the trust in whole or in part."

The Breslin majority cited no other authorities. Nor did it furnish any exposition, interpretation, or explanation how section 17206 stands for the proposition stated. Westlaw does not reveal any cases holding section 17206 authorizes orders compelling mediation, either.

This point is worth dwelling on because cases and rules in the civil context reject, rather emphatically, the concept of court-enforced mediation:

"[M]ediation is voluntary. (Jeld-Wen, Inc. v. Superior Court (2007)146 Cal.App.4th 536, 541.) Thus, the court cannot force parties to mediate. An order compelling mediation is antithetical to the entire concept of mediation. (Id. at p. 543.)
The decision to send a case to mediation "must be made by the court after consideration of the expressed views of the parties on the amenability of the case to mediation." (Cal. Rules of Court, rule 3.891(a)(1), (b).)
"Even after a case has been ordered to mediation, the mediator must inform the parties that participation in mediation is completely voluntary, refrain from coercing a party to continue its participation in the mediation and respect the right of each party to decide the extent of its participation or withdraw from the mediation." (Jeld-Wen, supra, 146 Cal.App.4th at p. 541; Cal. Rules of Court, rule 3.853.)
"Voluntary participation and self-determination are fundamental principles of mediation that apply both to mediations in which the parties voluntarily elect to mediate and to those in which the parties are required to go to mediation in a mandatory court mediation program or by court order." (Advisory Com. com., Deering’s Ann. Codes, Rules (2018 ed.) foll. rule 3.853.)" (Berkeley Cement, Inc. v. Regents of the Univ. of Cal. (2019) 30 Cal.App.5th 1133, 1141.)

None of these authorities is mentioned. Perhaps that is not particularly surprising, because Breslin is a probate case, and these are civil authorities. But the legal and equitable principles expressed in these civil cases suggest no such limitation. "Mediation is voluntary" is not the sort of proposition one expects simply to fall away simply by walking down the hall from civil to probate department. These principles deserved some sign of acknowledgement by the court. They received none.

Might Breslin Be Applied to Civil Mediation?

Presumably, the Second District supposed pegging its holding to a section of the Probate Code serves a sufficient firewall against its decision bleeding over to ordinary civil litigation.

But there may be some cause for doubt. The civil analog to section 17206 is Code of Civil Procedure section 128. Section 128 empowers the civil court "to compel obedience to its ... process ... in an action or proceeding pending therein," and "to control ... the conduct ... of all other persons in any manner connected with a judicial proceeding before it...."

This is not materially different from section 17206's language empowering the court to "make any orders and take any other action necessary or proper to dispose of the matters presented by the petition."

Breslin's vigorous deployment of section 17206 may well support a similar deployment of section 128.

Watch this space.

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 California Supreme Court in In re A.R. (Apr. 5, 2021) no. S260928 held that failing to file a timely notice of appeal is not necessarily fatal in a dependency case. This is a surprising holding because, as most practitioners know, reviewing courts treat appellate deadlines as jurisdictional in nature: a hard limit on the court's very authority to act, regardless of merits, good cause, or equity.

Does the Court's holding undermine this jurisdictional rule? To escape the harsh effect of the jurisdictional requirement of filing a timely appeal, the Court relies heavily on another statutory right: the right to competent counsel in dependency proceedings. (Welf. & Inst. Code, § 317.5.) But as the Court acknowledges, the Legislature does not furnish any remedy for this right. Namely, the Legislature does not suggest any exception to the jurisdictional limits on the courts' powers.

Here are the facts of In re A.R.:

Faced with an order terminating her parental rights, appellant asked her attorney to take an appeal. Unfortunately, the attorney forgot, and failed to timely appeal. The appeal was filed four days late.

Appellant filed a motion seeking relief from her default. She also timely filed her opening brief. She also filed a habeas petition.

Despite her diligent efforts, the Court of Appeal dismissed her appeal.

The Supreme Court reversed.

The Court began by acknowledging appellant's daunting task in this case. First, the Court reiterated that the deadlines for taking an appeal are "jurisdictional": "This is a jurisdictional deadline, meaning that courts lack the power to extend it, regardless of whether failure to meet the deadline was “wilful [sic] or inadvertent,” “reasonable or unreasonable,” or rooted in “good faith or not.” (Estate of Hanley (1943) 23 Cal.2d 120, 122 (Hanley); see Cal. Rules of Court, rules 8.60(d), 8.104(b).)"

Another grim reality for appellant is that dependency proceedings carry a strong policy in favor of expeditious and final proceedings.

But the Supreme Court went on to note that the Legislature subsequently added the statutory right to "competent counsel" in 1994. Citing the 1996 Court of Appeal decision in Kristin H., the Court agreed that "the Legislature could not have intended to create a ' " hollow right, " ' and so the right to competent counsel 'must include the right to seek review of claims of incompetent counsel.' "

The Court went on to acknowledge its jurisdictional bar against considering untimely appeals. "But," the Court went on, "this jurisdictional bar is absolute only “ ‘[i]n the absence of statutory authorization’ ” to extend the time for filing." Here, the Court concluded, "section 317.5 and the habeas corpus law provide the necessary authorization to override the interests in finality reflected by the jurisdictional rule, at least so long as the extension is of sufficiently short duration that it will not prejudice the interests of others with a stake in the dependency proceedings."

But to reiterate: section 317.5 does not identify such a remedy, or otherwise relax the courts' jurisdictional limits. And the Court rather cavalierly cast aside the statute-driven habeas procedures, which are, as appellant notes, formal and strict.

Here, the Court noted, "counsel's incompetence is the very reason no filing has been made by that deadline." The Court stressed that the appeal was just four days late, that appellant attempted to remedy the error, and filed her brief on time.

The Court also held that, to establish her right to file an untimely appeal due to lack of competent counsel, appellant did not need to establish prejudice by way of a likelihood of prevailing on the merits. Instead, the relevant injury is the denial of opportunity to appeal.

The procedure for seeking relief from an untimely appeal in a dependency proceeding is to apply in the Court of Appeal in the first instance.

One might wonder: What if the lack of competence manifests not in the form of an untimely appeal, but in the form of advice (presumably bad advice) not to appeal at all? In such an instance, the denial of the right to competent counsel might not manifest for months, even years. The Court explicitly declines to illuminate: "We do not here address a situation in which the lawyer concludes that there are no arguable grounds for appeal."

The Court also relies on the federal procedure for relief from untimely appeals. This raises a further question: Presumably our Legislature is aware of Rule 4 of the Federal Rules of Appellate Procedure, which allow appellants to apply to the district court for relief for untimely appeals. Yet our Legislature has not adopted such a rule, but rather has maintained the strict limits to the courts' "jurisdiction" against considering untimely appeals. Does this not suggest the Court here is fashioning for itself a remedy beyond its authority? Not only the authority afforded expressly by the Legislature, but the authority intended or contemplated?

The upshot: I do not expect In re A.R. will lead to any different results in civil appeals in the short term. Courts will continue citing the "jurisdictional" prohibition against considering untimely appeals. But, we may continue to wonder whether they are in earnest.

In this wage-and-hour action in Zhang v. Shao (D4d3 Apr. 1, 2021) no. G058045, the defendant employer made a number of procedural missteps, resulting in plaintiffs' obtaining summary judgment. (Technically, summary adjudication, followed by plaintiffs' voluntary dismissal of their remaining claims.)

Before appealing, employers tried to undo the damage in the trial court. But they bungled that, too. They filed a motion to vacate the order granting summary judgment. But before that motion was decided, the trial court entered judgment, and defendants served a notice of entry of judgment.

By the time the trial court ruled on employers' motion, it was more than 60 days later. Too late to appeal the judgment.

Eventually, the trial court denied the motion to vacate. Employers sought to appeal the orders granting summary adjudication and denying the motion to vacate, but those orders were not appealable. Held: appeal dismissed.

Some cautionary lessons from this opinion:

Beware Using the Judicial Council Form Notice of Appeal:

Though too late to appeal the judgment, employers' notice of appeal listed the order denying the motion to vacate.

But the Court of Appeal took exception to that, too. "The boxes for “judgment after an order granting summary judgment” and “other – motion to vacate summary judgment pursuant to CCP 6634 on ground of 473(b)” were checked. As to the latter box, no code section authorizing the appeal was specified, as required."

This is a curious remark by the court. It is curious because it is not, in fact, "required" to set forth the authority authorizing the appeal. All that is required in a notice of appeal is that it be served and filed in the superior court (CRC 8.100(a)(1)); signed (CRC 8.100(a)(1)); and identify the judgment or order being appealed. (CRC 8.100(a)(2).)

The Judicial Council form, however, calls for additional information, namely, the type of order appealed from and the authority making such orders appealable.

Beware using the Judicial Council form. As this case suggests, it sometimes gives the court ideas that other things may be required in your notice of appeal.

Another Note on Notices of Appeal:

The court spends some time explaining that "we cannot review any judgment or order – even if appealable – that is not mentioned in the notice of appeal." In fact, this is not quite correct, at least as framed in this opinion.

"A prior nonappealable order or ruling need not be specified in the notice of appeal from a subsequent appealable judgment." (Eisenberg et al., Cal. Practice Guide, Civil Appeals and Writs (The Rutter Group 2018) ¶ 3:119, p. 3-52, citing Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 669.)

Of course, all appealable orders must be identified in the notice of appeal. But if you are appealing from the judgment, then prior nonappealable orders need not be enumerated.

Beware When Appealing Orders Other Than the Judgment Itself:

Rather than appeal the judgment itself, employers here appealed the order granting summary judgment. This, too, was folly. That is because an order granting summary judgment (or adjudication) is not appealable. (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 319.)

Employers also appealed from the order denying their motion to vacate the summary judgment/adjudication order. But as the court points out, if the underlying order is not appealable, then neither is an order denying a motion to vacate it. “ ‘If the original ruling is not final and appealable in its own right, then it is not a judgment.... “[An] appeal may not be taken from a nonappealable order by the device of moving to vacate the order and appealing from a ruling denying the motion.” [Citation.]’ [Citation.]” (J. Weinrot & Son v. Jackson (1985) 40 Cal.3d 327, 331, superseded by statute on other grounds, County of Monterey v. Mahabir (1991) 231 Cal.App.3d 1650.)"

Nor did employers get the benefit of the extension of time to appeal that normally applies when a party files a motion to vacate. "This rule does not apply here because Appellants did not file a motion to vacate the judgment," but instead appealed the nonappealable order granting summary adjudication.

Beware Late Settlements of Appeals:

One of the appellant employers decided to settle. But it only requested dismissal in the Court of Appeal the day before oral argument. "Since the entire appeal is dismissed, the request to dismiss Xiao Shao is moot." The settling appellant was stuck with the costs of appeal along with the other non-settling appellants.

There are a few curious turns in Marriage of Sellers (D2d6 Mar. 25, 2021) 2021 WL 1134891, No. B306844 (unpublished). While unpublished, it provides a good roadmap – with citable authority – to making a limited appearance without waiving jurisdictional challenges. And if one is inclined toward a cynical view about appellate courts' selective treatment of appealability issues as "jurisdictional," it furnishes some confirmation of that, too.

The Sellerses separated. Husband was already in Virginia with the kids. Wife was still here in California. Husband had divorce proceedings pending in Virginia. Wife petitioned here shortly after, also seeking property division.

Husband, being in Virginia, filed a motion to quash service of wife's petition for lack of personal jurisdiction and subject matter jurisdiction. The family court agreed it lacked personal jurisdiction, and granted husband's motion to quash.

So far so good, for husband. But now with husband out of the case, wife then invoked the family court's "in rem jurisdiction" over the marriage and marital property in California. So back rushed husband with another motion to quash, reminding the court it had already ruled it lacked subject matter jurisdiction.

This time, the family court ruled husband's motion to quash constituted a general appearance, so in for a penny, in for a pound.

The Second District reversed, finding husband did not make a general appearance.

Challenging Subject Matter Jurisdiction Simultaneous with a Challenge to Personal Jurisdiction Does Not Convert an Otherwise Limited Appearance to a General Appearance:

On the one hand, generally “a party who seeks relief on any basis other than a motion to quash for lack of personal jurisdiction will be deemed to have made a general appearance ....” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.) And: “A defendant appears in an action when the defendant ... files a notice of motion to strike ....” (Code Civ. Proc., § 1014.) Such an appearance is usually deemed to be a general appearance. (Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 425 (Air Machine).)

On the other hand, the filing of a motion to strike does not constitute an appearance if the defendant simultaneously makes or, as here, previously made a motion “[t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (§ 418.10, subds. (a)(1), (e)(1); Air Machine, supra, at p. 426; Roy v. Superior Court (2005) 127 Cal.App.4th 337, 345 [“Nothing could be clearer: a defendant may move to quash coupled with any other action without being deemed to have submitted to the court's jurisdiction”].)

As most attorneys know, a trial court, on its own motion, must dismiss an action if there is no subject matter jurisdiction. (Goodwine v. Superior Court of Los Angeles County (1965) 63 Cal.2d 481, 484 (Goodwine).) It would be perverse to hold that a party's attempt to aid the court's duty constituted a consent to jurisdiction.

Absence of Formal Judgment Held No Bar to Appealability:

In an unusual procedural oversight, the family court neglected to enter a judgment. (Unusual, but not rare.) The order following trial instructed a judgment be prepared by wife's counsel. But apparently none was prepared. So husband appealed from the non-final order after trial.

The court was not troubled by this:

"In the interest of judicial economy, we consider the court's ruling to be a final appealable judgment. (See Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 571.) There is no reason to delay the appeal by requiring the parties to obtain the omitted judgment."

(NOTE: I have experienced inconsistent treatment by courts on this point. See CALPodcast episode 2 on interlocutory orders. So keep the Hedwall case handy.)

Curious Finding of Waiver of Appealability Question:

Wife also sought to dismiss husband's appeal on appealability grounds. Wife argued husband should have appealed from the family court's order finding husband had made a general appearance. Instead, husband waited until after trial. This, wife argued, was too late, and husband's challenge to the earlier order was waived.

In a curious move, the Second District did not expressly disagree with wife's challenge to appealability. Instead, the court held that wife "forfeited" the claim because she "cites no authority granting the right to appeal from such a ruling."

““ ‘When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as [forfeited].’ ”” (Lee v. Kim (2019) 41 Cal.App.5th 705, 721.)

Of course, the court is correct in its implicit suggestion that an order denying a motion to quash is not an appealable order. (See Code Civ. Proc., § 904.1(a)(3) [appealable orders include orders granting a motion to quash service of summons].)

But the court cannot decide challenges to appealability by way of waiver or forfeiture. The court must of its own motion dismiss an appeal from a nonappealable order. (Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 152.) That is because appealability goes to the court's jurisdiction.

Odd that this would be lost on the court when it was in the very act of reversing for lack of subject matter jurisdiction.

Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals.

We discuss:

Pitfalls in failing to make crucial posttrial motions (FRCP 50).
The vastly different approaches to oral arguments in federal court.
The impact of amicus briefing on the practice of appellate law.

Listen below, or in your favorite podcast player:

If you have tips, or would like to be a guest, please contact Tim Kowal at tkowal@tvalaw.com.

The Good News for Defendant: The Ninth Circuit reversed plaintiff's summary judgment on its breathtaking $1.8 billion Lanham Act claim.

The Bad News: In light of all defendant's discovery abuses, the Ninth Circuit wonders aloud whether the district court, when reconsidering the matter, might simply enter a default judgment against it on remand.

In AECOM Energy and Construction v. Morrison Knudsen Corp., 2021 WL 1117780 (9th Cir. Mar. 24, 2021), plaintiff moved for summary judgment on its Lanham Act claim, which carries a right to disgorgement damages.

In support of disgorgement damages, plaintiff offered just three press releases, announcing the EPA, the Bureau of Land Management [I recall a time when that was abbreviated BLM without risk of confusion], and other mining concerns had awarded defendant construction contracts totaling $1.8 billion.

Plaintiff offered no other evidence supporting the $1.8 billion in damages. On the other hand, defendant offered nothing in rebuttal, either. To the contrary, the Ninth Circuit acknowledged that defendants "failed to provide in discovery any reliable evidence of their sales, profits, or costs, despite court orders compelling them to do so."

A split panel held that plaintiff's evidence of the award of contracts was not enough to demonstrate sales or revenues. The court remanded on the issue of damages.

In a concurring opinion that I find more persuasive than the majority's, Judge Friedland agreed the matter must be remanded, but only because the district court apparently did not understand it was empowered to reduce the award. "To the contrary, the district court stated that it was “restless ... over the amount of damages,” but Defendants-Appellants’ “procedural failures left the [c]ourt with no clear avenue other than to rest upon the standards of civil procedure,” which suggests that it may have felt bound to grant $1.8 billion or nothing. This error amounted to an abuse of discretion requiring a remand for reconsideration. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)."

In other words, as we often note in these pages, the failure to exercise discretion is an abuse of discretion. Thus, back down this ruling goes.

But for this oversight, however, the concurrence goes on to explain why the $1.8 billion should have been affirmed. Noting defendants had failed to participate in the fact-finding process, " “[r]equiring more precision than can be attained, especially where the impossibility of more precise ascertainment was the fault of the wrongdoer, would be inequitable and is not required.” DSPT Int'l, Inc. v. Nahum, 624 F.3d 1213, 1223 (9th Cir. 2010)."

"Consequently, the district court was permitted to assume that this fact “as claimed and adequately supported by the moving party [was] admitted to exist without controversy.” C.D. Cal. R. 56-3."

This is the law under California procedure, too: "When a party does not produce ordered documents, the court is entitled to infer the documents would contain evidence damaging to that party's case and instruct the jury accordingly. (See Kuhns v. State of California (1992) 8 Cal.App.4th 982, 987–990.)" (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 605, review denied (July 27, 2016).)

There is no duck blind in civil discovery: you don't get to take shots at the other side's evidence if they don't get to take shots at yours.

The concurrence concludes with this chilling suggestion: "I share the majority's opinion that the district court could consider entering discovery sanctions. See supra note 5. In my view, appropriate sanctions could even include a default judgment against Defendants-Appellants, if the district court deems it justified."

I previously reported a case suggesting that a legitimate Covid excuse might afford some relief from the otherwise strict deadline to file a notice of appeal. Yesterday, however, another case rejected just such a argument.

The recent case is Yuzon v. Contra Costa County Comm. Coll. Dist. (D1d2 Mar. 29, 2021) no. A161834 (unpublished). Plaintiff's complaint, alleging injury during a science demonstration, was dismissed upon summary judgment. A notice of entry of judgment was served on October 29, 2020. Plaintiff-appellant filed his notice of appeal on December 29, which was 61 days later.

One day late.

Appellant urged that the trial court was closed for most of December due to Covid. His attorney's office was also closed due to a county stay-home order.

But the Court rejected these arguments. Appellant could have filed his notice of appeal via the "drop box" provided by the trial court. Court and office closures, the court abruptly held, do "not excuse appellant from the jurisdictional deadline for filing his notice of appeal, even during a challenging time when many people were working from home."

Contrast the approach taken by the First District six months ago in, the published opinion of Rowan v. Kirkpatrick (D1d3 Sep. 4, 2020) 54 Cal.App.5th 289. While the Covid-related extended deadlines likewise there had passed, "Courts have long recognized the policy, based on the remedial character of the right of appeal, to accord that right in doubtful cases when it can be accomplished without doing violence to applicable rules."

The Rowan court concluded: "Here, however, [appellant] does not contend she was prevented in any way from timely filing notices of appeal...."

Appellant in Yuzon likely had some hope of obtaining some relief, given his delay was a mere one day. But the Yuzon court was not inclined to do so.

Note, however, that the Yuzon court cited Rowan, stating appellant "has not shown that he was otherwise excused from filing a timely notice of appeal." Perhaps this suggests that, although the courts and offices were closed, appellant did not establish that this in fact prevented him from timely filing his appeal. Appellate courts do have ways of bending their "jurisdictional" limits when they are inclined to do so. But it did not happen here.

Covering the differences between California state and federal appeals on the California Appellate Law Podcast (available Tuesday, Mar. 30), co-hosts Jeff Lewis and I discussed with guest Cory Webster the importance of Federal Rules of Civil Procedure 50, governing motions for judgment as a matter of law made before submission to the jury and after judgment. If appellant could have raised an issue in a motion for judgment as a matter of law but failed to do so, that issue is waived on appeal.

The Ninth Circuit helpfully furnishes a recent example in Brown v. County of San Bernardino, 2021 WL 1054561 (9th Cir. Mar. 19, 2021). Brown brought a civil rights claim against the sheriff's department, but failed on grounds of qualified immunity.

On appeal, appellant ran into several waiver and forfeiture issues.

Appellant argued, "for the first time on appeal," that the jury was racially biased against her, and that the district court's comments during trial prejudiced the jury. "We review forfeited rights for plain error. See Hoard v. Hartman, 904 F.3d 780, 786–87 (9th Cir. 2018)." Plain error review is better than no review, but only by a little. "In that event, reversal is warranted only if such plain error would result in a manifest miscarriage of justice. Equal Employment Opportunity Commission v. Go Daddy Software, Inc., 581 F.3d 951, 962-70 (9th Cir. 2009) (internal quotations and citations omitted). Plain error review permits only extraordinarily deferential review that is limited to whether there was any evidence to support the jury's verdict. See id. at 961-62.

Unfortunately for appellant, she "has not shown any obvious error affecting her substantial rights. Her generalized assertions of systemic racism in America are insufficient to establish actual or implied juror bias. See Fields v. Woodford, 309 F.3d 1095, 1103–04 (9th Cir.), amended by, 315 F.3d 1062 (9th Cir. 2002)."

Ditto for her claims of judicial misconduct: the judge, by occasionally stopping Brown from questioning witnesses, "does not itself show misconduct, let alone plain error. See Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008); Hansen v. Comm'r, 820 F.2d 1464, 1467 (9th Cir. 1987)."

Appellant's failure to make Rule 50 and 59 motions resulted in a total waiver of her substantial evidence arguments. "Even if she had raised the argument in her opening brief, Brown's failure to make the appropriate motions under Federal Rules of Civil Procedure 50 and 59 precludes this court's review. See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 401–04, 126 S. Ct. 980, 985–87, 163 L. Ed. 2d 974 (2006); Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1088–90 (9th Cir. 2007)."

Other cases are even more emphatic: "a party completely waives an issue that it failed to first raise in a Rule 50(a) motion." Wei Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1028–29 (9th Cir. 2003). Zhang goes on to observe: "This Court strictly applies the rule that Rule 50 allows complete waiver if an objection is not properly made. See, e.g., Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 887 (9th Cir. 2002) (refusing to review an issue even where it was raised in a Rule 50(b) motion after trial because "`the requirement that [a JMOL] motion be made at the close of all the evidence is to be strictly observed'") (quoting Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1346 (9th Cir. 1986))."

Trial attorneys rightly focus on the arguments most likely to persuade the jury. Good appellate arguments are often left underdeveloped until it is too late. In federal trial practice it is especially important to consult appellate counsel before and during trial.

Here is the video clip from episode 11 of Tim's podcast, the California Appellate Law Podcast, discussing this issue.

In another cautionary tale for respondents on appeal, the Second District in this appeal of an order denying arbitration holds the trial court erred in finding an arbitration agreement unenforceable. The opinion in Alvarez v. Altamed Health Servs. (D2d8 Feb. 4, 2021) No. B305155 (published) suggests a couple ways respondents might try to shore up potential defects in their judgments before exposing them to the crucible of appeal.

In Alvarez, employee filed suit against her employer, who then moved to compel arbitration. The trial court denied the motion because, among other grounds, the arbitration agreement "incredibly difficult to read," and the arbitration language "was not highlighted in any way."

The Second District disagreed. The court noted the typeface of the arbitration provision was the same as the offer letter (which the employee did not complain about), and used the same line spacing as the trial court's ruling. Nor was it "sandwiched in between other topics," and it was otherwise "not difficult to find."

The court concluded it was "surprised by the trial court's inability to find the word 'jury' or the jury provision in the arbitration agreement."

Respondent shrewdly then reached for another ground supplied by the trial court's ruling: that employee "never knowingly waived" her right to a jury trial. But the Court of Appeal rejected this. The court took respondent to mean that "there is no proof she saw or read" the arbitration agreement. But, the court went on, "Respondent did not make this claim in the trial court." Accordingly, respondent "has forfeited this contention."

I found this forfeiture outcome surprising, as the doctrine of implied findings usually would carry the day for respondent. “The doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42.)

The court did not directly address the doctrine of implied findings on this issue, but did raise it in its analysis on a different issue, stating:

"Preliminarily we note we do not agree with respondent that the doctrine of implied findings applies here. If a trial court's decision depends on disputed facts or extrinsic evidence, the doctrine of implied findings applies. If "the facts bearing on the trial court's decision derive solely from the language of plaintiff's complaint and from the terms of the [arbitration agreement], [and] neither [are] in dispute," the "doctrine of implied factual findings does into come into play." (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 708.) In such instances we independently review the questions of law raised by the decision."

So the reviewing court will not infer findings on pure questions of law like contractual interpretation. But "knowing waiver" is a fact question, which would not fall within that exception to the doctrine of implied findings.

Another possible explanation lies in still another part of the court's decision, noting that no party requested a statement of decision. As the court observed:

"A party's failure to request a statement of decision when one is available has two consequences. First, the party waives any objection to the trial court's failure to make all findings necessary to support its decision. Second, the appellate court applies the doctrine of implied findings and presumes the trial court made all necessary findings supported by substantial evidence." (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.)"

Unfortunately, the court does not explain the application of this rule to this case. But ordinarily one would expect that, given the appellant did not request a statement of decision, the implied findings doctrine would operate against appellant. Yet that didn't happen here. When the respondent sought to capitalize on the doctrine, the court was unmoved.

This ought to make the blood of any respondent run cold. What consolation may be offered?

Ordinarily, it is the appellant who requests a statement of decision. But a respondent may request one also. (In many cases, the trial court will instruct the respondent to prepare the proposed statement of decision.) Here, the respondent "acknowledge[d] the trial court was mistaken about the absence of a jury waiver provision," the principal thrust of the trial court's ruling. Recognizing this defect might be difficult to overcome on appeal, respondent might have considered shoring up its position on appeal by requesting some backup findings in a request for a statement of decision.

Upshot: Do not overlook the statement of decision process at the end of a critical hearing or bench trial. The statement of decision is often the single most important document the Court of Appeal will review. Either party may drastically alter the meaning and effect of that document by making a strategic request for findings under Code of Civil Procedure section 632 and Rules of Court rule 3.1590.

Waiver or forfeiture of arguments is a big concern for appellants on an appeal. But rarely do courts find that a respondent had waived or forfeited an argument.

In Travis v. Brand (D2d8 Mar. 19, 2021) 2021 WL 1049863 (published), various citizens, political action committees, and elected officials, and other political operatives litigated over whether to redevelop the Redondo Beach waterfront. Ultimately, the trial court found against the two resident plaintiffs who had favored redevelopment, and awarded almost $1 million in fees and costs against them.

Judgment Against Nonparties Void

The twist: The court also entered judgment against several nonparties, who had funded plaintiffs litigation efforts. The trial court called plaintiffs the "shills" of the nonparties, The nonparties were the proverbial man behind the curtain.

Nope, said the Second District, Division Eight. Can't do that. Issuing rulings and judgments against nonparties "implicated due process." Although the nonparties had notice the case was ongoing, they had "no notice the judgment could include them." And even though the nonparties funded the suit, due process includes people funding lawsuits, too. "California has no public policy against funding of litigation by outsiders. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1136.)"

Nonparties Had Standing to Appeal

Defendants-respondents tried out a technical appellate procedure angle: The nonparties don't have standing to challenge the judgment against them because, you see, they are not parties. In an admirable show of restraint, the Court of Appeal patiently rejected this argument (which struck me rather a piece of sophistry).

It is true that to have standing to appeal a judgment, an appellant must be (1) a party of record and (2) aggrieved by the challenged judgment. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736 (Carleson); see also Code Civ. Proc., § 902.)

There is an exception to the “party of record” requirement if the judgment has a “res judicata effect” on the nonparty. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295 (Marsh).)

The court concludes the judgment "arguably has a res judicata effect" on the nonparties. (And it explicitly named the nonparties as "judgment debtors" in the fee and cost award.)

As to the second requirement for standing, a judgment aggrieves a person if it has an “ ‘immediate, pecuniary, and substantial’ ” injurious effect on the person's rights or interests. (Carleson, supra, 5 Cal.3d at p. 737.)"

Respondents Forfeited Arguments on Appeal

In another curious twist, when defendant-respondents argued the nonparties could be bound as "agents" of the plaintiffs, the Court of Appeal rejected this as forfeited because it was not raised in the trial court.

This is curious because, while appellants must always be cautious to preserve arguments for appeal, all respondent's arguments are deemed preserved by operation of law: "It is, of course, immaterial that the theory upon which the judgment may be affirmed is not identical with that relied upon by plaintiffs or by the trial court, since plaintiffs are required only to plead and prove facts sufficient to justify relief, and the trial court's judgment must be affirmed if the findings, supported by the evidence, are sufficient to warrant the relief granted on any legal theory." (Sears v. Rule (1945) 27 Cal.2d 131, 140–141.)

But in Travis, the Second District found defendant-respondents had waived their agency theory by not raising it below. The court noted that plaintiff-appellants had raised the issue when they objected to proposed judgment's findings. When the respondents replied, they "said nothing about an agency relationship" and they "cited no agency law."

Even though the trial court ruled the plaintiffs were "shills" of the nonparties, "'shills' is not a legal designation. It was not a finding of an agency relationship."

Again, this is an unusual holding. I expect it would be deemed peculiar to the facts of this case. But if you are an appellant trying to avoid an implied finding on appeal, you might consider citing Travis v. Brand.

After the 2020 reversal of an arbitrator's award in Brown v. TGS Mgm't Co., LLC, I noted that it may be hasty to conclude arbitration awards are not worth appealing. Reversal is possible where the arbitrator's error "violates a party's unwaivable statutory rights or that contravenes an explicit legislative expression of public policy."

An employee's right to compete is such a right, as in Brown, that even a wayward arbitrator may not ignore. An unlicensed contractor, likewise, may not enforce an agreement, even if the arbitrator says otherwise. Loving & Evans v. Blick (1949) 33 Cal.2d 603.

But the recent published opinion in Bacall v. Shumway (D2d8 Feb. 18, 2021) No. B302787 illustrates the limits of review of arbitration awards.

Bacall involved a talent management and legal representation agreement with Shumway who, unbeknownst to the talent, was no longer licensed to practice law. The arbitrator invalidated the agreement, but still allowed Shumway to keep about $200,000 relating to non-legal services of the approximately $400,000 in total payments.

Shumway appealed, raising a number of legal challenges, apparently hoping to get the same result as in Brown.

Legal Challenges to the Arbitration Award That Failed:

First, appellant Shumway argued the arbitrator's conclusion that the contract was invalid as a matter of law must be reviewed independently by the Court of Appeal. The court disagreed. The court distinguished Loving and other prior cases, as those cases involved arbitration awards upholding the validity of contracts. Here, the arbitrator declined to enforce the contract on grounds it was invalid, and instead severed the illegal portions.

(I find this distinction – between arbitration awards finding contracts enforceable and other awards finding them unenforceable – a doubtful one. In either event, the arbitrator is decide an issue concerning enforceability. Why should the reviewability of an arbitrator's conclusion on a question of law depend on what the conclusion was?)

Second, appellant argued the award violated the public policy enshrined in the Talent Agencies Act (Lab. Code, § 1700 et seq.). Here, appellant might have been on to something, mining the same vein as in Brown. Alas for appellant, however, the public policy at stake in the Talent Agencies Act is protection of the talent, not the agency. No dice.

Appellant's third argument – and my favorite – was that the arbitrator grounded the invalidity of the contract in the appellant-former-attorney's unlicensed practice of law, and that this "'highjack[ed]' the regulatory power of the State Bar and the courts." The court disagreed. (But the gumption deserves some credit.)

Substantial Evidence Challenges to Arbitration Awards Are Not Available:

Appellant also argued the judgment against him personally, as alter ego of his talent agency, was not supported by any evidence.

As a challenge to an arbitration award, this is a nonstarter.

Even if there truly were no evidence, the lack of substantial evidence is never a ground for reversal of an arbitration award. "We do not review the merits of the dispute, the sufficiency of the evidence, or the arbitrator's reasoning, nor may we correct or review an award because of an arbitrator's legal or factual error, even if it appears on the award's face." (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 359, fn. omitted.)

Arbitrator's Award of Fees Without Awaiting Opposition Held Not Grounds for Reversal:

Finally, a good example of it is important to simply follow normal CCP and Rules of Court procedure in arbitration rather than making it up as you go:

In post-hearing closing briefs and before the arbitrator issued an award, Bacall requested fees and costs. Confused by this, appellant emailed arbitrator and asked, wouldn't it be more appropriate to handle issues of fees and costs after the decision, like we do in regular court?

To which arbitrator responded via email: "Consideration of attorney fees will not take place until the case is decided and a prevailing party is determined. Anything submitted in that regard will not be read until then."

Satisfied, appellant waited. But when the decision came down finding Bacall the prevailing party, it also awarded Bacall his requested fees and costs over $237,000.

That seemed rather irregular, appellant argued.

But the Court of Appeal was not roused. The arbitrator didn't exactly deny appellant the ability to file an opposition. The court said the arbitrator's email response was "vague," but that appellant could have sought clarification. (The arbitrator's response does not seem vague to me.)

And even though appellant had a point that it would have made more sense to handle fees and costs after the merits disposition, it would not have been impossible to brief them beforehand.

The court concluded:

"As the Supreme Court recently reaffirmed, " ' "[t]he statutory provisions for [review of an arbitration award] are manifestly for the sole purpose of preventing the misuse of the proceeding, where corruption, fraud, misconduct, gross error, or mistake has been carried into the award to the substantial prejudice of a party to the proceeding." ' [Citation.]" (Heimlich v. Shivji [(2019) 7 Cal.5th 350] at p. 368.) This is not one of those cases."

Here is a tip if you are defending a judgment: If appellants fail to raise an issue, do not raise it for them. That is what happened in Foster v. American Marine Svs Group Benefit Plan, 2021 WL 930257 (9th Cir. Mar. 11, 2021). As a result of respondent/appellee's helpful assist in raising the dispositive issue whether an employer's ERISA plan failed to give notice of a lapse in benefits, an issue appellant had failed to raise in her brief, the court was able to reach the issue. Held: summary judgment reversed.

Foster had died of esophageal cancer shortly after leaving his employment with American Marine. Plaintiff, Foster's wife, filed a claim with her husband's employer's group benefits plan. But the plan denied coverage on grounds Foster was ineligible because employer had stopped making payments on his behalf two months prior. Foster was supposed to have started paying premiums himself.

The district court granted summary judgment in favor of defendants employer and its group benefit plan.

The Ninth Circuit reversed. A group benefit plan is a fiduciary and so has a duty to give notice to the plan beneficiary that the benefits would lapse unless the plan was converted to an individual plan. Plaintiff had established a triable issue that the plan failed to provide this information.

The interesting briefing issue is that plaintiff-appellant failed to raise the notice issue. (It is not clear what other issues distracted her so.) Appellee argued that this amounted to a waiver of the right to challenge those issues on appeal. And appellee would have had a solid point. Unfortunately for appellee, however, by taking the initiative and briefing the issue under its own steam, appellee preserved the issue for decision on the merits. As the Ninth Circuit explained in a footnote:

Although we “ ‘will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant's opening brief,’ [w]e have discretion to review an issue not raised by appellant ... when it is raised in the appellee's brief.” In re Riverside-Linden Inv. Co., 945 F.2d 320, 324 (9th Cir. 1991) (citations omitted) (quoting Miller v. Fairchild Indus, Inc., 797 F.2d 727, 738 (9th Cir. 1986)); cf. Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004) (explaining that the respondent “suffers no prejudice from [a petitioner's] failure to properly raise [an] issue” when the respondent briefed it in its answer). Because American Marine briefed the issue of whether it satisfied its ERISA obligations, we may properly exercise our discretion to reach the issue.

Tip: When arguing waiver, establish prejudice. What appellee should have done here when arguing waiver was to argue how the waiver resulted in prejudice to appellee. That is, by failing to raise issues, or by raising them only in passing, in a perfunctory manner, or indistinctly, or with inadequate explanation or citation to authority, appellee was deprived of notice of the nature and scope of the issues and what authorities supported them. Cite to United Nurses Assocs. of Cal. v. NLRB, 871 F.3d 767, 780 (9th Cir. 2017) (arguments "fleetingly allude[d] to" deemed waived); Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1230 (9th Cir. 2008); Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008); Paladin Assocs., Inc., 328 F.3d at 1164 (issues not specifically and distinctly contested in a party’s opening brief are considered waived).

Be wary of giving any substantive response to the inadequately raised issue. As Foster v. American Marine cautions, briefing the issue is tacit acknowledgment the appellee is on notice of it.

(Incidentally, in another recent ERISA case, the Ninth Circuit holds appellant's equitable estoppel claim, raised for the first time on appeal, was therefore forfeited. Meyer v. United Healthcare Ins. Co., 2021 WL 930258 (Mar. 11, 2021). Presumably the appellee there did not go out of its way to brief the forfeited issue for the appellant.)