This unpublished decision reviews a trial court's reliance on improper evidence. The case, In re Marriage of Patterson (D5 Feb. 9, 2021) No. F076753, is a good illustration of a key points of trial practice: The trial court may not rely on evidence that was not properly admitting into the record. And judicial notice will not get you there on matters of "substantial consequence" without following the statutory procedures.

The case is also a good illustration of a key point of appellate practice: Even if the trial court relies on improper evidence, that error is not reversible unless the evidence prejudiced the appellant. If there was other substantial evidence supporting the findings, as there was here, the error will be deemed harmless.

In Patterson, wife cuckolded husband and bore two children by another man during their marriage. Through foreclosure, they lost the family home that husband owned separately, but some friends later acquired the deed and transferred it to wife.

After the couple separated, husband agreed to pay wife $60,000 in child support in exchange for visitation. Wife's lawyer, however, did not include the visitation terms in the agreement. Wife later chided husband she had "tricked" him out of his visitation rights. Wife then alleged there were no children of the marriage.

Wife allowed at one point that husband should have the house, but later reneged on that too.

The trial court found wife's actions "particularly calculated and vicious." The court concluded wife breached her fiduciary duties, and she was judicially estopped from claiming the house was community property after having proposed husband receive it in the property division. The court awarded $75,000 in sanctions against wife.

Wife appealed. Among the issues raised, wife argued the trial court erred by relying on no fewer than 26 items that were never admitted into evidence and thus not properly before the court. "We agree," said the Fifth District. The items included a declaration, filings from prior court proceedings, a visitation agreement, a deed of trust, assignments, a notice of trustee's sale, a bill of sale, letters, a valuation opinion, and income and expense declarations.

"However," it went on, letting the air out of wife's balloon, "a judgment may not be reversed unless an error was prejudicial and a different result was likely in absence of the error." (Citing Code Civ. Proc., § 475; In re Marriage of Shimkus (2016)244 Cal.App.4th 1262, 1269.) Notably, wife "does not explain how the individual items were material or dispositive to the court's ruling."

Thus, none of these 26 judicial errors were prejudicial, and thus not reversible. Nor were the errors cumulatively prejudicial, as the findings were independently supported by substantial evidence, by way of testimony and a grant deed properly admitted.

But wife did prevail on appeal concerning a 27th piece of improperly considered evidence supporting the $75,000 sanctions order against her, as that amount was based entirely on an income and expense declaration that was not admitted into evidence. A declaration is not automatically received into evidence merely because it has been filed with the court. (In re Marriage of Shimkus, supra, 244 Cal.App.4th at p. 1271.) "[A]s with any evidence, a declaration must be marked and offered and is subject to objections before admission." (Ibid.)

The Fifth District suggested the trial court might have taken judicial notice of this evidence, but did not follow the correct procedure to do so. "[I]f the matters of which it takes judicial notice are "of substantial consequence to the determination of the action," the court must follow a specific procedure. (Evid. Code, § 455.) "If the trial court ... has taken ... judicial notice of such matter, the court shall afford each party reasonable opportunity ... before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed." (Id., subd. (a).) That did not occur here. ... As a result, Kellee was not afforded a full and proper opportunity to "meet" this evidence."

But wife's victory likely may prove hollow, as the court remanded with directions for the trial court to conduct a new hearing on sanctions, and properly admit the evidence this time.

The Fifth District also held that wife had a point on the issue of judicial estoppel. The trial court erred in finding her pleading references concerning the property to amount to judicial estoppel. No surprise here, as judicial estoppel is a narrow doctrine. " ' "Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] Application of the doctrine is discretionary." ' [Citation.] The doctrine applies when '(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.' [Citation.]' " (In re Marriage of Taschen (2005)134 Cal.App.4th 681, 689-690.)

But again, the finding was supported on independent substantial evidence.

The upshot for appellants: Improperly admitted evidence by itself usually is not a strong grounds to appeal, as you will still be faced with a deferential substantial-evidence review concerning any proper evidence that supports the judgment.

The upshot for respondents: Do not rely on declarations to prove your case. Instead, be sure to have your client or witness testify to them so the matters become part of the evidentiary record.

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 a common question:

A judgment is entered. Later, a separate award of attorney fees and costs is entered. Still later, an amended judgment incorporating the fee and cost award is entered.

To seek reversal of the fee and cost award, which order, or orders, must be appealed?

Answer: All three.

"'When a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudgment order.'" (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222 (Torres).)

(If you really only want to appeal the fee and cost award, you should be fine with just appealing that order: the underlying judgment and later amended judgment ordinarily are not necessary. But you cannot get in trouble by being extra cautious.)

The California Attorneys Fees blog reports this unpublished decision out of the Fourth District, Division Three, Tiger Loans, Inc. v. Yan Hao (D4d3 Feb. 9, 2021) No. G058954, dismissing an appeal as untimely.

On June 3, the court entered judgment against plaintiff, but did not resolve the issue of fees and costs. On September 3 defendant obtained an award of fees and costs. After a dispute over a judgment-enforcement matter, on February 26 the court entered an amended judgment including the fee and cost award. On March 5 plaintiff appealed the amended judgment. (There was no notice of entry, so the 180-day deadline applied under California Rules of Court, rule 8.104(a)(1)(C).)

"March 5, 2020 is 266 days after June 13, 2019 and 184 days after September 3, 2019. Plaintiff's appeal is thus untimely as to both the judgment and the attorney fee and cost order. The February 26, 2020 amended judgment merely added costs and attorney fees to the original judgment, and therefore did not extend the time to appeal from the original judgment. Consequently, we are without jurisdiction to entertain plaintiff's appeal and must dismiss it."

Remember: An award of fees and costs is separately appealable under Code of Civil Procedure section 904.1(a)(2). An appeal of the underlying judgment ordinarily will not encompass a later award of fees and costs. Nor will an appeal of a later, amended judgment revive the time to file a prior fee and cost order: "It is well settled . . . that '[w]here the judgment is modified merely to add costs, attorney fees and interest, the original judgment is not substantially changed and the time to appeal it is therefore not affected.'" (Torres, supra, 154 Cal.App.4th at p. 222.)

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.

Most attorneys have missed a deadline at some point in their careers, or have awoken in the night worrying about it. The attorney in this recent case, Ojeda v. Azulay (D2d3 Feb. 10, 2021) No. B302440 (unpublished), missed a deadline to file a fee motion. But he owned up to the mistake, acknowledging it in his reply brief, explaining he had miscalculated the deadline under Code of Civil Procedure section 1013. The trial court granted his motion despite its untimeliness.

The Second District affirmed. Although the motion was untimely, the deadline to file a fee motion is not jurisdictional. That deadline may be extended by stipulation or by the trial judge for good cause under California Rules of Court, rule 3.1702(b)(2). "An honest mistake of law may constitute good cause for relief depending on the reasonableness of the misconception. (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 327-328.) We review a trial court's finding of good cause for an abuse of discretion, and a litigant challenging that finding has an "uphill battle." (Id. at p. 326.)"

But, appellant urged, the trial court made no finding of good cause! Without a finding of good cause, and without a stipulation, there can be no extension under the rule!

Appellants often make technical arguments like this on appeal. But appellants often fail to meet their own technical requirements on appeal to establish them. Here, appellant did not appear at the hearing and did not otherwise argue against the moving party's showing of good faith mistake. Appellant also failed to provide a record of what happened at the hearing.

"Given the standard of review—abuse of discretion—that failure is fatal to this issue." The appellant "bears the burden of affirmatively showing prejudicial error, and, to satisfy this burden, had to provide an adequate record to assess error. (See, e.g., Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)"

What appellant should have done: Appellant needed to make a record to establish any extension was not supported by good cause. Appellant might have done this by requesting leave to file a sur-reply to address the moving party's proffer of good cause, made for the first time in its reply brief. Appellant ought to have pointed out to the trial court that a mistake of law ordinarily is not excusable unless it is a complex and debatable point, and here, the interpretation of section 1013 ordinarily is not. And of course, appellant needed to have attended oral argument with a court reporter, so that the trial court's reasoning and findings on the point, if any, would be made part of the record.

Failing any of that, the Court of Appeal will nearly always hold an implied finding was made, and that it was supported by those portions of the record appellant failed to furnish on appeal.

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.

This appeal over attorney fees concerns thorny issues of appealability. In Doe v. Westmont Coll. (D2d6 Jan. 25, 2021) No. B303208, the Second District rejected the college's arguments that the fee order was not appealable. Even though the fee motion had been made and denied previously, the court noted the second fee motion raised new issues, including seeking fees for a subsequent successful appeal. This opinion seems to differ slightly from a Fourth District opinion in Apex LLC v. Korusfood.com (D4d3 2013) 222 Cal.App.4th 1010 (see here).

Here is what happened in Westmont College. 

In a prior opinion, a Westmont College student who was suspended due to sexual harassment charges filed a successful petition for writ of mandate in the trial court reversing the suspension, on grounds he was denied a fair hearing. After the college unsuccessfully appealed, it decided simply to vacate the findings against the student rather than conduct the required hearing. The successful student then moved for his attorney fees.

The trial court denied the student's fee request, finding fees not supported under Code of Civil Procedure section 1021.5 because the student's case was "personal." To the extent his efforts conferred a significant benefit on a large group of people, that was only because the college had appealed and lost. Thus, awarding fees would amount to a punishment for exercising the right to appeal.

The Second District reversed, holding the trial court had failed to engage in required portions of the analysis under section 1021.5. Failing to exercise discretion is an abuse of discretion.

Section 1021.5 provides fees to a successful party whose action "resulted in the enforcement of an important right affecting the public interest." The statutory inquiry requires the court to find that "(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any." (§ 1021.5.)

Specifically on the question of "necessity and financial burden of private enforcement," a trial court is required to examine two prongs: the adequacy of public enforcement, and the financial burden of private enforcement.

Here, "[t]he trial court examined neither of these prongs when it denied John's motion. . . . That alone was an abuse of discretion." (Citing Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382, 391.)

The court also addressed some thorny issues of appellate procedure, including an issue on which there currently is a split of authority.

First, the college argued that while a post-judgment fee order is appealable, a post-appeal fee order is not. Here, the student's fee motion was based on having prevailed in a prior appeal. An order denying a fee motion ordinarily is appealable as an order after an appealable judgment (Code Civ. Proc., § 904.1(a)(2).) But here, the college apparently argued that the fee award followed not the student's judgment but his favorable appellate opinion.

A similar issue came up in Apex LLC v. Korusfood.com (D4d3 2013) 222 Cal.App.4th 1010, which I wrote about here. In that case, the successful appellant recovered fees after reversing a judgment on appeal. The Fourth District could find "no published decision addressing whether a trial court order granting attorney fees on appeal, made on remand after reversal of the underlying judgment, is directly appealable." So the court there reviewed the order as a collateral order.

The Westmont College court, however, was not vexed by the appealability issue. It cited (Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1029 for the proposition that a fee award under section 1021.5 may be based on a published appellate decision. But that seems to sidestep the appealability question under section 904.1(a)(2). Serrano held that a published opinion is a factor supporting an award of section 1021.5 fees. But it does not appear directly probative of the appealability question.

The college also argued that the student's fee order was based on a renewed motion for fees, made before the first appeal. Orders on renewed motions, the college argued, are not appealable. And the college has cases to back it up. (See, e.g., Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 364; Chango Coffee, Inc. v. Applied Underwriters, Inc. (2017) 11 Cal.App.5th 1247, 1252-1254; Tate v. Wilburn (2010) 184 Cal.App.4th 150, 159-160 (Tate).)

The court agreed that renewed motions "generally not appealable because permitting such appeals might: (1) render "a nonappealable order or judgment . . . appealable," (2) permit a party to "have two appeals from the same decision," or (3) give a party "an unwarranted extension of time to appeal." (Tate, supra, 184 Cal.App.4th at p. 160.)

The court rejected the college's argument, however, because the student here did not make a "renewed" motion. A renewed motion is "a subsequent application for the same order." (Code Civ. Proc., § 1008(b).) The relief sought must be "identical." Here, the student's second fee motion, unlike his first motion, included fees for his successful appeal. The second motion was based on obtained a published decision, unlike his first motion (this is how the fact of the published opinion becomes relevant to the appealability issue). "The postappeal motion thus cannot be construed as a renewal of his preappeal motion."

Moreover, the fee order was a postjudgment order for fees, and such orders "are themselves appealable" under section 904.1(a)(2).

Held: The order on a motion for attorney fees under section 1021.5 following a published appellate court opinion is an appealable order.

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.

"Shotgun pleading," the practice of overpleading a complaint with vague and irrelevant facts, and so annoying a lot of people who never did the plaintiff any harm, is prohibited in federal court, where a "short and plain statement" is required. Often, the rule is relaxed in practice, due to the difficulty of enforcing it.

Too often, says the 11th Circuit. In Barmapov v. Amuial, No. 19-12256 (11th Cir. Feb. 3, 2021), the court affirmed the dismissal with prejudice of a shotgun pleading, even though it probably contained some meritorious claims. What put the court over the edge was that plaintiff was represented by counsel, and the district court gave counsel an opportunity to clean up the "meandering" complaint some 100 pages long, which "lumped together" allegations against more than a dozen defendants, including immaterial allegations about criminal backgrounds and pointless personal history, and "vague and conclusory" allegations, 50 pages of which were "indiscriminately incorporate[d] and repeat[ed]" into nine of the 19 counts.

Yet plaintiff's counsel squandered the opportunity. As the 11th Circuit ominously observed, "the number of legal malpractice claims has recently 'soared,' and the number of large payouts has increased."

"Shotgun pleadings" are prohibited by Federal Rules of Civil Procedure 8(a)(2), which requires "a short and plain statement of the claim," and Rule 10(b), which requires numbered paragraphs in a complaint, each to be "limited as far as practicable to a single set of circumstances."

Chief Judge Pryor, writing for the panel, wrote that precedent in the 11th Circuit is clear: "When a litigant files a shotgun pleading, is represented by counsel, and fails to request leave to amend, a district court must sua sponte give him one chance to replead before dismissing his case with prejudice on non-merits shotgun pleading grounds." Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1296 (11th Cir. 2018). The district court having given counsel that chance, and counsel having squandered it, the panel found little difficulty in affirming the dismissal.

Judge Tjoflat wrote separately to impress upon the bar that "short and plain statement" means "short and plain statement." Too many plaintiff's lawyers, noted Judge Tjoflat, are "too clever for their own good." "Shotgun pleadings" are "calculated to confuse the 'enemy,' and the court, so that theories for relief not provided by law and which can prejudice an opponent's case, especially before the jury, can be masked." Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1320 (11th Cir. 2015) (alterations adopted) (quoting T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1544 n.14 (11th Cir. 1985) (Tjoflat, J., dissenting)).

"To an outside observer, disposing of these otherwise viable claims because a plaintiff's lawyer pled too many facts may seem like strong medicine.... And it is strong medicine, but for good reason." "It is not the proper function of courts in this Circuit to parse out [] incomprehensible allegations."

Shotgun pleading may even expose the pleader to contempt: "the deliberate use of a shotgun pleading to impede the orderly process of a case is an "abusive litigation tactic[]" that could warrant a citation for criminal contempt."

Judge Tjoflat laid some of the blame at the feet of district judges: "district courts must also shoulder some responsibility in ensuring that shotgun pleadings are nipped in the bud." That is because "when shotgun complaints are allowed to survive past the pleadings stage, "all is lost—extended and largely aimless discovery will commence, and the trial court will soon be drowned in an uncharted sea of depositions, interrogatories, and affidavits."

When faced with a shotgun complaint, defendants have two options: move for a more definite statement under FRCP 12(e), or move to dismiss under FRCP 12(b)(6). But defense counsel "should never respond to a shotgun pleading in kind," that is, by filing a "shotgun answer," with one-line affirmative defenses.

With all that said, Judge Tjoflat went on to state plaintiff here "may have pled some claims that could have survived" the motion to dismiss, and that it does appear [plaintiff] was swindled" by the defendants into "invest[ing] millions of dollars in a scam."

Yet despite that it contains some valid claims, the shotgun complaint "must be dismissed," because plaintiff's "counsel failed to uphold their end of the bargain" by rectifying the problems the district identified in the earlier complaint.

"I have little sympathy," Judge Tjoflat concluded, "for lawyers who draft slapdash complaints that are ultimately dismissed."

Look for this "strong medicine" to be adopted in more federal courts in response to shotgun pleading.

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.

During appellate briefing in Howard Jarvis Taxpayers Ass'n v. City of San Francisco (D1d5 Jan. 27, 2021) No. A157983, a case concerning whether a recent local tax increase on a voter initiative needed a two-thirds majority vote rather than a bare majority, another case on the same question was answered in a different case (that case is City and County of San Francisco v. All Persons Interested in the Matter of Proposition C (2020) 51 Cal.App.5th 703). The other case was unfavorable to appellants. The other case, though of parallel jurisdiction and thus not binding, nonetheless was decisive on the issues.

Appellants' counsel did not mention the unfavorable new case in their briefing. In fairness to appellants, the unfavorable new case only came out two months before their reply brief was filed. Sometimes very recent authorities escape counsel's attention. Unfortunately, appellants were also the same losing parties in the unfavorable new case (albeit represented by different counsel).

And removing all doubt, appellants' counsel admitted at oral argument she was aware of the unfavorable new case in time to brief it, but had chosen not to brief it because, she explained, that other case was "different."

The First District obviously did not agree. It exhaustively analyzed the unfavorable new case, found it persuasive, and adopted its reasoning.

"We admonish counsel," the court stated in its published opinion, "to candidly acknowledge such authority in the future." The court cited Jon B. Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 9:58 ["Your failure to confront unfavorable relevant holdings will be regarded as an attempt to deceive and mislead the court."]; Rules Prof. Conduct, rule 3.3(a)(2) ["A lawyer shall not: [¶] . . . [¶] (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel," fns. omitted].

Before issuing its opinion, the court did invite further briefing from the parties on the new case. So counsel's misstep here did not effect any probable change in the court's opinion on the merits. But it likely effected a change in the court's opinion on her credibility.

h/t Ben Shatz.

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.

I have written before about California state court cases holding that failing to exercise discretion is an abuse of discretion. The same rule applies in federal courts, as the recent case of Rembert v. A Plus Home Health Care Agency, LLC (6th Cir. Jan. 25, 2021) No. 20-3454 out of the Sixth Circuit illustrates in the context of attorney fee awards.

In Rembert, a home healthcare agency declined to pay nurses for the overtime they worked because it “couldn’t make money” if it did. The nurses sued and won via settlement. The district court ordered attorney fees, but then reduced them to 35% of the total settlement amount because that’s what judges in that district “typically approve.”

Reversing, the Sixth Circuit acknowledged the district court "has some discretion regarding the rates and hours that are reasonable." But that discretion may be invoked "only when the court provides a clear and concise explanation of its reasons for the fee award," quoting Gonter v. Hunt Valve Co., 510 F.3d 610, 616 (6th Cir. 2007).

The Court reversed on two grounds.

First, in the context of Fair Labor Standards Act (FLSA) claims, where recovery typically is modest, if plaintiffs' fee awards were capped at a percentage of recovery, they "would be unable to 'attract competent counsel' to represent them." So caps based on percentage of recovery are invalid in the FLSA context.

Second, appellant argued the district court "failed adequately to explain the reasons for reducing her counsel’s compensable hours by nearly two-thirds." The Court agreed. “The district court should state with some particularity which of the claimed hours the court is rejecting, which it is accepting, and why.” U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1193 (6th Cir. 1997) (brackets and internal quotation marks omitted). The Court noted: "We lack any such particularity here."

Reviewing the fees in the first instance, the Court noted: "In determining fee awards, courts should not “‘become green-eyeshade accountants[,]’” but instead must content themselves with “‘rough justice[.]’” " (Quoting Carter v. Hickory Healthcare, Inc., 905 F.3d 963, 970 (6th Cir. 2018) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)).) "And though we are mindful of our limited role in adjudicating fee disputes, we see nothing more than de minimis entries (if any) for non-compensable time." "[W]e respectfully conclude that the district court abused its discretion when it did not grant in full the amounts requested in counsel’s fee petition."

Remanded for a further award of appellant's fees on appeal. Reiterating the modest amount of fees at issue, the Court urges the parties not to appeal again.

Usage Note: The court's locution, "failed adequately to explain," hints that the Sixth Circuit expects you keep your infinitives unsplit.

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.

This recent opinion discusses two appeals, both of them dismissed on procedural grounds. The first appeal was dismissed as moot because the appellant failed to obtain a stay of the order on appeal. The second was dismissed as premature because the appellant filed the appeal too early. Both of these kinds of errors are what appellate specialists can help avoid.

Taylor v. Forde (D2d7 Jan. 20, 2021) No. B298957 (unpublished) involved a property management dispute in which the trial court appointed a receiver to manage and sell the real property. Forde, the party who had been allegedly mismanaging the property, appealed the order, but was unable to post a sufficient bond to stay the order pending appeal. (This is surprising, given this is the third appellate decision in the parties' litigation saga, which the court described as having "spread like craquelure through the superior, bankruptcy, and appellate courts. [I had to look up craquelure: it is the fine pattern of cracking typically seen on the surface of oil oil paintings.])

Before the appeal could be decided, the receiver sold the property. The Court of Appeal then dismissed the appeal of the order to sell the property because, the property having been sold, the order was moot.

Ordinarily, orders on appeal are automatically stayed precisely because without a stay, the appeals would become moot, making the right of appeal evanescent. But Code of Civil Procedure section 917.4 expressly makes orders for the sale of real property not stayed on appeal unless the appellate posts a bond against waste. As this case illustrates, section 917.4 made this appeal a pay-to-play affair: no bond, no appeal.

And that was not even the worst thing to happen to appellant Forde.

Forde had also violated discovery orders, and so plaintiffs moved for monetary and terminating sanctions against Forde, which the trial court granted. Without awaiting entry of judgment, however, Forde rushed ahead with his appeal.

What was the problem with that? The problem with that is that discovery orders, including an order granting terminating sanctions, ordinarily are not appealable. Instead, the aggrieved party must await entry of the judgment.

Appellant argued two possible exceptions. First, the terminating sanctions order followed the partition order, which appellant urged was appealable under Code of Civil Procedure section 904.1(a)(1), and thus was appealable under subdivision (a)(2). Wrong. Interlocutory partition orders, as here, are appealable under subdivision (a)(9), and are expressly excluded from the types of orders contemplated under (a)(1). The (a)(2) argument won't work.

Appellant's second argument was more creative. He argued the terminating sanctions order was inextricably intertwined with the monetary sanctions order. And while monetary sanctions ordinarily are not appealable, they are when they exceed $5,000. Here, it did: $5,097.50. Appellant had case law to back him up, citing Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262 (Mileikowsky), out of the Second District, Division Four, which suggested the court may review a nonappealable terminating sanctions order in connection with its review of an appealable monetary sanctions award based on the same conduct so as to make the two orders inextricably intertwined.

The Second District took a dim view of the purported "inextricably intertwined" exception suggested by Mileikowsky (apparently an internecine dispute within the Second District), surmising that it is not a valid exception at all. But the Taylor court concluded the two orders before it were not inextricably intertwined anyway, relying heavily on the fact that appellant did not contest the monetary sanctions, only the terminating sanctions.

Appeal dismissed.

Parting thoughts: 

All is not lost for appellant. The default prove-up hearing is still on calendar in the trial court, which will result in a judgment that may be appealed. More problematic are the instances where a judgment is never entered. I have seen a plaintiff dismiss a defendant (to prevent him from filing a compulsory cross-complaint), which was not followed by entry of a judgment. The Court of Appeal dismissed the appeal as premature. Premature, that is, to a judgment... which was never entered. (The clerk's entry of a voluntary dismissal is not an appealable order. Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975.)

If ever you find yourself in such a predicament where you cannot appeal because the trial court has failed to perform the ministerial act of entering an appealable judgment, you may file a motion under Code of Civil Procedure 664 to have the court enter the judgment. Cite Yu v. Superior Court (Oct. 27, 2020) 56 Cal.App.5th 636 (discussed here), for the proposition that "Section 664 specifies that when, such as here, "the trial has been had by the court, judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision."”

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.

If you find yourself back in the trial court after a remand by the Court of Appeal, things are supposed to be much the same as before. Yet sometimes, things are not the same.

This case provides one example: after a perfectly routine order granting attorney fees, defendant appeals the fee order, which is, likewise, perfectly routine as a postjudgment order. But this time, the effect of the Court of Appeal's reversal means there is no judgment, and you can't appeal as a postjudgment order if you don't have a judgment in the first place, with the effect that the perfectly routine appealable order arguably is not appealable.

Here is what happened in Apex LLC v. Korusfood.com (D4d3 2013) 222 Cal.App.4th 1010. Plaintiff sued defendant Sharing World, Inc. for nonpayment of a delivery of cottonseed under a contract between plaintiff and Sharing World. The contract contained an attorney fee provision. Both Sharing World and its successor entity, Korusfood, answered the complaint in a joint document. Korusfood, however, was not a signatory to the contract with plaintiff.

A judgment for defendants was reversed. On remand, the now-successful plaintiff sought attorney fees against nonsignatory Korusfood. The motion was granted, and Korusfood appealed.

Raising a surprisingly novel point in a motion to dismiss the appeal, plaintiff argued that an award of fees following reversal on appeals is not an appealable order. While fee awards are treated as postjudgment orders appealable under Code of Civil Procedure section 904.1(a)(2), the Apex v. Korusfood court notes that "The effect of a general reversal is to create a situation where no judgment is deemed to have been entered." The decision of the Court of Appeal is not a judgment for purposes of section 904.1(a)(1) or (2).

Worse still, "We have found no published decision addressing whether a trial court order granting attorney fees on appeal, made on remand after reversal of the underlying judgment, is directly appealable."

Fortunately, the post-appeal fee award could be deemed appealable as a collateral order. Collateral orders are an exception to the general rule that only final orders are appealable. To be appealable as a collateral order, the order must be (1) collateral, i.e., separate from the merits of the matter, (2) final, and (3) directing the payment of money or performance of an act.

Interestingly, there is a split of authority whether this third element is truly essential: Compare Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 685, fn. 4 [order does not literally direct payment of money, thus not appealable], and Krikorian Premiere Theatres, LLC v. Westminster Central, LLC (2011) 193 Cal.App.4th 1075, 1083-1085 [no meaningful distinction between an order awarding costs and an order denying a motion to tax costs, thus, order denying motion to tax, whole or in part, is appealable collateral order].

The Fourth District notes this split of authority, but concludes this is not the occasion to decide it because it easily finds all three factors met here. The post-reversal fee award is an appealable collateral order. But the Fourth District appears to take the view that the order must involve the payment of money or performance of an act. So had the trial court denied the fee motion, it seems likely the court would have held the order not appealable, and dismissed the appeal.

This would have been an injustice, because as the court goes on to hold, plaintiff had a right to fees. The court agreed with plaintiff that Korusfood had "stepped into the shoes of [the signatory], and should be estopped from denying liability for attorney fees." (Id. at p. 1017.) The Court stated the rule, supporting by numerous authorities, that [a] nonsignatory will be bound by an attorney fees provision in a contract when the nonsignatory party stands in the shoes of a party to the contract. (Id. at pp. 1017-18.) The Court noted that both the signatory and nonsignatory defendants filings were always blended into one, which was substantial evidence supporting a finding Korusfood stepped into the shoes of the signatory defendant. (Id. at p. 1018.)

The upshot: If you successfully reverse a judgment and there is an appeal concerning the right to fees or costs after reversal, be mindful of the collateral order doctrine. And be sure to note the split of authority over whether the order must compel the payment of money or performance of an act.

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.

After hitting publish on my recent piece suggesting some ways you might bring unpublished opinions to the court's attention, I remembered another example I blogged about in October:

 A recent (published) decision out of the First Appellate District [People v. Am. Surety Co. (Cal. Ct. App. - Oct. 1, 2020) D1d2 case no. A157154] upheld the validity of a bail bond even though it was for the wrong amount. The bond company, American Surety Co., had relied on a published 1919 Court of Appeal holding for its position. But the Court rejected that holding, stating: "In the course of our research we encountered—but cannot mention by name—a number of unpublished Court of Appeal decisions rejecting American’s argument and distinguishing [the 1919 Court of Appeal opinion]."

It occurs to me that if you are really anxious to get the court to notice a certain unpublished opinion, you might hazard something like:

“While Rule 8.1115 prohibits us from naming unpublished decisions, following the First Appellate District’s example in People v. Am. Sur. Co. (2020) 55 Cal.App.5th 265, 269, we simply note a recent opinion of the ____ District is responsive to this question.”

And then proceed to crib from the case, which will leave a breadcrumb trail the court can follow, if it is so inclined.

Take caution: This is still technically a violation of Rule 8.1115. But if you’re just following the Court of Appeal’s example it might give you some cover.

Also, appellate attorney Paul Alarcon recounted this creative way a court got around Rule 8.1115:

This probably falls under category one, but I recently read an opinion in which the court justified a discussion of an unpublished California appellate decision by explaining that it had been analyzed by a district court order and so the court was merely citing the district court discussion of the un-citable case.

I thought this ingenious, and wondered whether some public-spirited district court judge might do us all a favor sometime and incorporate by reference into a ruling all unpublished California opinions.

Attorney Cory Webster suggests the Judicial Council amend Rule 8.1115 to follow the Ninth Circuit model:

The rule leads to bizarre situations where an appellate panel cannot cite its own prior decision on a question of state law, yet it can cite a federal trial court decision on the same question of state law. The rule should be abandoned in favor of something like what the Ninth Circuit does with mem dispos—you can cite them, but they’re not precedent.

That rule would be an improvement, I think, but still shoots wide of the mark. My own view of the real problem with rule 8.1115 is that it permits the courts to operate in a separate, parallel juridical universe. The practice of deciding cases via uncitable cases is a simulacrum of a normal system of judicial lawmaking, not quite within the norms of the rule of law. Normal judicial lawmaking is still lawmaking, but only to the extent it operates within legal doctrines and reasoning that are binding on itself and lower courts. When a court of appeal's application of doctrine and reasoning is made not binding – either upon other courts or even upon itself – and is not reviewable (except under the state Supreme Court's extremely limited criteria), it is little different than private judging. It becomes part of a subterranean body of law that the bar and the public may not gainsay. The legitimacy of private judging is aided at least by the parties' agreement. I cannot think of any factor that mitigates this defect in a system of nonprecedential appellate decisions.

The practical effect of the current rule is to give cover to judicial mischief. As Howard Bashman recounted:

"The most sinister and inappropriate use of an unpublished opinion must also be considered. Sometimes, it must be admitted, applying existing law to the facts of an appeal would produce a result that it is difficult to describe as "justice" in the context of a given case. In such circumstances, it may be difficult for appellate judges, as human beings, to avoid the temptation of using an unpublished opinion as a method of arriving at a just resolution of the current case while being able to disregard that result in the future as a one-off outcome having no binding effect on future cases. I wish I were inventing this possible use of an unpublished opinion, but I have heard appellate judges admit to it themselves to explain why an appeal might result in an unpublished opinion instead of a published opinion."

Howard J. Bashman, The Recurring Problem of Unpublished Opinions and What to Do About It?, ABA Council of Appellate Lawyers, Appellate Issues, Fall 2017, at 23.

For these reasons, I respectfully dissent from the practice of issuing uncitable, unpublished decisions. Feel free to cite me on that.

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

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.

I tell clients arbitration awards are virtually unassailable on appeal. After this $3.4 million award in an employment dispute was reversed on appeal in Brown v. TGS Mgm't Co., LLC (D4d3 Nov. 12, 2020) No. G058323, that may technically still be true: but, I am not going to say it anymore.

Employee Brown works in the very specialized, and very lucrative, field of statistical arbitrage. Brown enjoyed highly remunerative employment with TGS. But Brown's employment agreement had a restrictive non-compete, and a very broad confidentiality requirement.

When Brown left his employment, he took some information from TGS. He did not take employment elsewhere. Brown received a $650,000 deferred 2014 bonus from TGS. Brown still expected to receive a $300,000 deferred 2015 bonus when he filed suit.

The matter was compelled to arbitration. TGS claimed Brown had violated the confidentiality agreement, and thus sought to recover the $650,000 bonus it had paid him. Brown sought declaratory relief that the entire confidentiality agreement amounted to a covenant not to compete, void ab initio under Business & Professions Code § 16600.

The arbitration was a disaster for Brown. The arbitrator ruled that Brown's declaratory relief claim was not "ripe" because he had not taken a new job. The arbitrator also denied Brown's § 16600 argument because of Brown's "unclean hands."

The arbitrator awarded TGS $650,000 for the bonus it had paid Brown, a staggering $2.46 million in attorney fees (read that again, slowly), $170,000 in costs, and $134,000 in prejudgment interest.

After an award like that, if there is an exception to the usual rule that arbitration awards are largely unassailable, you are likely motivated to find it.

Brown petitioned the trial court to vacate the award. Of the few and narrow grounds to vacate an arbitration award, one is that the “arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” (Code Civ. Proc., § 1286.2(a)(4).) Brown argued that.

But the trial court denied Brown's petition to vacate the award. The trial court agreed with the arbitrator that the section 16600 argument challenging the confidentiality and non-compete clauses was not "ripe," and thus this ruling could not be said to "exceed" the arbitrator's powers. The trial court also agreed that the arbitrator's finding of Brown's bad faith defeated his section 16600 challenge.

Brown appealed.

Of some appellate procedural interest on the topic of the respondent's role in designating the record: Respondent TGS submitted a Respondent's Appendix along with its Respondent's Brief. The Respondent's Appendix included the arbitration transcripts. Brown noted those transcripts were not provided to the trial court in the petition to confirm the award, and thus were not part of the record on appeal. Brown moved to strike the Respondent's Appendix and for sanctions against TGS.

The Court of Appeal apparently agreed with Brown as a technical matter, but nonetheless allowed the transcripts to come into the record via judicial notice, and refused to impose sanctions. Judicial notice strikes me as an end run around the rules of proper record designation. But, if you are in a pinch, cite Brown v. TGS Mgmt as grounds to include arbitration transcripts or court transcripts into the appellate record.

Back to the issues on appeal: The Fourth District, Division Three, of the Court of Appeal reversed the judgment on the arbitration award. The court relied on "the substantial body of case law holding arbitrators exceed their powers 'by issuing an award that violates a party's unwaivable statutory rights or that contravenes an explicit legislative expression of public policy," quoting Richey v. Autonation, Inc. (2015) 60 Cal.4th 909, 916.

The court went on to rely heavily upon the key California Supreme Court case of Moncharsh v. Heily Blase (1992) 3 Cal.4th 1, which declared an arbitration award is subject to judicial review if inconsistent with the protection of a party's statutory rights. Moncharsh discussed two of the "limited exceptions" in which judicial review of an arbitrator's award is warranted. The first of these exceptions is "where a party claim[s] the entire contract or transaction was illegal."

The court concluded that TGS's extremely broad confidentiality clause – which even swept in information unrelated to the statistical arbitrage business, and information predating Brown's employment – operated as a de facto non-compete. It could not survive under section 16600.

TGS, for its part, did not attempt to defend its confidentiality clauses. Instead, it stood on the argument that Brown's declaratory relief claim was not "justiciable" because it was not ripe.

This was incorrect, the court held, because here, Brown was making a facial challenge to the provisions, not an as-applied challenge. "The factual details of Brown's future employment," the court held, "were irrelevant."

The unclean hands defense, too, was irrelevant to a facial challenge.

The matter was remanded. The arbitration will reconvene for proceedings consistent with the Court's opinion – including on the issue of the monumental amount of fees.

(H/t to Michael Shipley, who wrote about this case here.)

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.