Most attorneys know that citing unpublished decisions in California courts is prohibited under California Rules of Court rule 8.1115(a). The rule is emphatic: an unpublished or depublished opinion "must not be cited or relied on by a court or a party in any other action."

There are only two exceptions in the statute, and they are narrow: one is where the decision is binding under the legal doctrines of law of the case or res judicata or estoppel, and the other is when the opinion is relevant to a criminal disciplinary action.

But in practice, courts sometimes read the rule rather more forgivingly than it is written. Maybe courts are as frustrated as we attorneys are when we find just the right case, only to note, alas, it is unpublished.

Here are a few cases I have come across where courts of appeal have cited and even relied on unpublished decisions, Rule 8.1115 notwithstanding:

Unpublished Federal Decisions May Be Cited in California Courts: Rule 8.1115 applies only to California decisions, not to federal decisions. “[U]npublished federal decisions can be cited as persuasive but not precedential authority.” (Dimon v. County of Los Angeles (2008) 166 Cal.App.4th 1276, 1283 (citing Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1352, fn. 6).)
Courts Have Taken Judicial Notice of Unpublished Opinions: Considering whether a corporation could recover its attorney fees for its in-house counsel, the Second District in Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal. App. 4th 212, 218, n. 14, reviewed a Supreme Court decision holding an in pro per attorney may not recover his own fees, and found it needed more context, which context apparently could be found only in the Court of Appeal opinion. But that opinion was unpublished. No problem: “Although the Court of Appeal opinion . . . is not published, we may take judicial notice thereof as a court record pursuant to Evidence Code section 452, subdivision (d)(1).”
Courts Have Considered Unpublished Opinions to Describe the Current State of the Law: In an asbestos wrongful death case relating to a product manufactured in Nebraska, the First District had to answer whether Nebraska's five-year statute of limitation for dissolved companies applied, or whether California's survival statute applied. In tracing through the applicable cases, the First District covered one of its own unpublished decisions, giving a fairly lengthy description of it, and then afterward in a footnote justified it this way: “We are aware of the legal rule barring citation to or reliance upon a depublished California case. (Cal. Rules of Court, rule 8.1115.) We nonetheless mention this recently depublished decision in order to accurately describe the current state of law with respect to the scope of [Corporations Code] section 2010.” (Robinson v. SSW, Inc. (2012) 209 Cal.App.4th 588, 596, n. 7, review granted, depublished by Robinson v. SSW, Inc. (Cal., Dec. 12, 2012) S206347, 2012 Cal. LEXIS 11722.)

Courts Cite Unpublished Opinions to Identify Important Questions of Law: One of the express grounds to obtain Supreme Court review is that review is necessary "to secure uniformity of decision or to settle an important question of law." (Cal. Rules of Court, rule 8.500(b)(1).) To this end, citing unpublished decisions is acceptable. As David Ettinger noted in December 2019, "In his separate statement in People v. Valencia, Justice Liu cited nine unpublished opinions involving the same police practice that was challenged by the defendant in the Valencia case, and he said those cases “are just the tip of the iceberg.” Citing the unpublished opinions is a reasonable way to show Valencia raises “an important question of law,” which is an express ground for Supreme Court review. Nonetheless, rule 8.1115’s terms seem to prohibit those citations." (Emphasis added.)
Courts, and Counsel, Have Cited Unpublished Opinions to Illustrate the Effects of Certain Laws: In a December 2020 Supreme Court opinion in People v. Gentile (Cal. Dec. 17, 2020) S256698, holding SB 1437 (2017-18 Reg. Sess.) bars convictions of second-degree murder under the natural-and-probable-consequences theory, the District Attorney of San Diego submitted an amicus brief citing two unpublished opinions. Those opinions illustrated two scenarios where the Supreme Court's holding would allow defendants who participated in deadly crimes to "get away with murder." The DA apparently did not cite these cases as legal authority, but merely for their relevance as news stories supportive of a policy argument. The plain language of Rule 8.1115 does not allow this. The Court ultimately rejected the DA's argument, but the Court did not mention Rule 8.1115 or otherwise suggest the citations were improper.
Courts Have Cited Unpublished Opinions When Adopting Their Reasoning: In another First District decision in Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, 161, fn. 11 (noted in Mr. Ettinger's post linked above), the court – presumably in its own research – came across a Second District decision it rather fancied. While the parties could not cite to or argue the unpublished case, the First District did not so restrain itself: “While we do not rely on the unpublished opinion as authority, we adopt as our own its reasoning.” A lengthy quotation from the unpublished case followed. (I note this might have presented grounds for rehearing. Pursuant to Government Code section 68081, where an appellate decision is “based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.” Given the parties were barred any opportunity to discuss the unpublished case, it arguably was an "issue which was not proposed or briefed by any party," thus requiring rehearing.)
The Court Might Look at Unpublished Opinions Discussed in Meet-and-Confer Correspondence: If unpublished authorities explain why an appeal is frivolous, and a motion for sanctions for filing a frivolous appeal is merited, why not send those authorities to opposing counsel? You may then attach that correspondence to your motion? Who knows, the court just might take a look at those authorities.

Again, all of these exceptions could arguably violate the express language of Rule 8.1115(a), so proceed with extreme caution. But if you have a good unpublished opinion, these cases may suggest some ways the court might look at it.

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.

Before your next summary-judgment motion, be sure to read Sandoval v. County of San Diego (9th Cir. Jan. 13, 2021) No. 18-55289, holding that perfunctory evidentiary objections are disallowed, and summarizing other objections that simply don't apply on summary judgment.

In Sandoval, a man on probation swallowed a lethal amount of meth rather than let deputy sheriffs find it, and died while in his holding cell. His wife brought suit in state court on both state law claims and section 1983. The suit was removed to federal court as to the section 1983 claim.

The County moved for summary judgment. In response to plaintiff's evidence in opposition, the County "submitted boilerplate one-word objections" based on relevance, hearsay, and foundation. The objections were asserted without explanation. The court sustained all the objections, also without explanation.

"This decision," the Ninth Circuit held, "which had the effect of striking crucial evidence from the summary judgment record, was an abuse of discretion."

The lack of any explanation was a factor, and certainly an annoyance, as it forced the Court to carefully review the record to understand the basis for the objections. That done, the Court concluded "the objections were meritless, if not downright frivolous."

Even though plaintiff failed to respond to the objections before the district court sustained them, the Ninth Circuit reversed.

Here are some key points to add to your MSJ checklist:

1. Relevance objections on summary judgment motions are improper. As the Ninth Circuit observes, relevance objections are redundant on summary judgment, because the entire function of the motion is to determine whether there is relevant evidence. As the Court puts it: "if evidence submitted on summary judgment could create a genuine dispute of material fact, it is, by definition, "of consequence in determining the action," and therefore relevant. Id. Conversely, if the submitted evidence does not create a genuine dispute of material fact, there is no need for the court to separately determine whether it is relevant because, even assuming it is not, it will not affect the ultimate summary judgment ruling."

Here, the relevance objections lacked merit as to first-hand observations, and a medical expert report, which "go[] to the central issues in the case."

(I do not know of any similar California authority, but this is a logical analysis and not inconsistent with any rule I am aware of.)

2. Hearsay may be considered in opposition to summary judgment. Under Ninth Circuit authority, the form of the evidence opposing summary judgment need not be admissible so long as the contents would be admissible at trial. "If the contents of a document can be presented in a form that would be admissible at trial—for example, through live testimony by the author of the document—the mere fact that the document itself might be excludable hearsay provides no basis for refusing to consider it on summary judgment." The Court cites Fraser v. Goodale (9th Cr. 2003) 342 F.3d 1032, 1036-37, holding that the plaintiff's diary could be considered on summary judgment because she could testify consistent with its contents at trial.

Here, plaintiff's evidence included plaintiff's expert report, which, though hearsay, contained opinions to which the expert would testify at trial.

(This Ninth Circuit precedent is contrary to the rule in California, where declarations submitted to support or oppose motions for summary judgment must be based on personal knowledge. Code Civ. Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 541 ["[T]he summary judgment statute still requires the evidence provided in declarations to be admissible at trial."].)

3. An objection to part of a document must identify which part. The Court notes: "And to the extent the defendants intended to object to only parts of the documents, their unexplained generalized objections were insufficient to raise such an objection. See Fed. R. Evid. 103(a)(1)(B); United States v. Holland, 880 F.2d 1091, 1095 (9th Cir. 1989) ("Holland's blanket objection to the admission of the tape does not preserve an objection to failure to redact the tape.")."

4. Foundation objections must be timely and descriptive so as to permit the party offer the evidence to cure the defects. The Court states: "As for the foundation objections, "an objection to admission of evidence on foundational grounds must give the basis for objection in a timely way to permit the possibility of cure." Jerden v. Amstutz, 430 F.3d 1231, 1237 (9th Cir. 2005); accord 21 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5036.7 (2d ed. 2020 update). The defendants' one-word objections for "foundation" fell well short of providing Plaintiff with notice of the specific ground of objection and, consequently, what could be done to cure any defects."

(The rule is similar in California. See Evid. Code, § 353, subd. (a) [an evidentiary objection must "make clear the specific ground of the objection"]. To preserve an objection of lack of foundation for appellate review, the objection must specifically state the foundational defect. See Bank of America v. Taliaferro (1956) 144 Cal.App.2d 578, 582; People v. Modell (1956) 143 Cal.App.2d 724, 729.)

Evidentiary objections are a major trap for the unwary on summary-judgment motions. Solo practitioners may wish to consult appellate co-counsel to help spot-check.

(Thanks to Prof. Shaun Martin for bringing attention to the case.)

The Discovery Act provides for mandatory sanctions for discovery abuses unless the court finds the offending party acted with substantial justification or the sanction would be "unjust." Plaintiffs in Kwan Software Eng'g, Inc. v. Hennings (D6 Dec. 2, 2020) No. H042715, a high-stakes (the complaint sought $255 million) and multi-party Silicon Valley litigation over "cyber-squatting," gave false deposition testimony, submitted false declarations, and spoiled evidence.

Defendants filed a motion seeking $4 million in litigation fees for discovery abuse, and the trial court issued a 60-page OSC. Under Code of Civil Procedure section 2023.030(a): "... the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust."

Although the court awarded terminating sanctions, ordered restitution of plaintiffs' prior $83,000 anti-SLAPP fee award, and ordered plaintiffs to pay the court $22,000 for costs incurred by the court, the court declined to award any monetary sanctions in favor of defendants. The court reasoned that, in the circumstances, such an award "could be considered as punishment" for misconduct already sanctioned.

The Sixth District disagreed and reversed. The Court acknowledged the standard of review on sanctions orders is deferential, and that "punitive" orders ordinarily are improper. But after "a careful reading" of the record, the Court concluded the trial court had failed to ever impose any sanction specifically for any of plaintiff's discovery abuses. The $22,000 sanction to be paid to the court was for plaintiffs' "fraud on the court." And the disgorgement of anti-SLAPP fees was "for plaintiffs' overall 'wrongful conduct.'" But as plaintiffs' false deposition testimony and spoliation of evidence, no sanction had been awarded.

Thus, the order denying mandatory money damages was not supported by the "unjust" exception to section 2023.030(a).

Concerning the "substantial justification" exception, however, the Court engaged in a curious bit analysis. The Court found that the "substantial justification" exception was implicitly not met. I find this odd because, ordinarily, the Court of Appeal only infers findings in favor of affirming the judgment. “The doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment. (Sammis v. Stafford (1996) 48 Cal.App.4th 1935, 1942.) "The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. [Citations.]" (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)

Here, the Court chose to infer a finding in favor of reversing the judgment. And then the Court went on to find that "[s]ubstantial evidence supports that determination [in favor of the implied finding]." Again, this is unusual, because the substantial-evidence standard ordinarily is deployed in the aid of affirmance, not in reversal.

The denial of monetary sanctions was reversed and remanded for determination of an appropriate amount. The Court affirmed the denial of sanctions against plaintiffs' attorneys, however, finding there was no direct evidence the attorneys advised their clients to engage in any discovery abuse – a high evidentiary standard mandated by the statute.

h/t Michael Shipley.

Last week, Bryan Garner's LawProse lesson was on succinctness, noting that the late Justice Ruth Bader Ginsburg once told him that "Eye fatigue sets in well before page 50."

The appellant in Semmerling v. Bormann, No. 19-3211 (7th Cir. Jan. 5, 2021) was not in danger of reaching page 50. Instead, he kind of went a whole other direction on this.

First, Semmerling's statement of facts and procedural history did "not even come close to meeting" the requirements of Federal Rule of Appellate Procedure 28(a)(6), requiring "a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record."

Keeping things brisk, Semmerling also nipped and tucked Rule 28, which requires that the legal argument section of the brief contain the "appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies." Instead, Semmerling's brief "is, oxymoronically, devoid of any legal argument whatsoever." In the parsimonious 2-1/2 pages devoted to his legal arguments, Semmerling "makes incoherent claims," fails to "identify and critique the key points in the district judge's analysis," and cites no legal authority except "disjointed sources for an utterly irrelevant proposition."

Appellant's argument, in short, "is woefully deficient."

Semmerling had been "generously offered" an opportunity to file a new brief, but "[c]ounsel passed on the chance for a fresh start." Committed to his theory of maniacal economy in briefing, counsel also dispensed with the reply brief.

Affirmed.

The rule is the same in the Ninth Circuit as well. Arguments made in passing, indistinctly, inadequately briefed, or in a perfunctory manner, may be deemed waived or abandoned. 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).

And also in California state courts. From a recent (unpublished) decision in California v. Ass'n of Bay Area Governments, A159235, at *2 (Cal. Ct. App. Dec. 18, 2020), deeming an argument abandoned for failure to adequately brief it: “We dismiss as abandoned plaintiffs' appeal from a post-judgment order striking their request for costs as appellate " 'review is limited to issues which have been adequately raised and briefed.' " (Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1519.) ”

In this commercial eviction case in Lee v. Kotyluk (D4d3 Jan. 7, 2021) No. G058631, defendant-tenant filed a motion in limine for judgment on the pleadings, asserting a defect in landlord's three-day notice to quit. The trial court granted the motion and entered judgment for the tenant. Plaintiff-landlord appealed the judgment. The prevailing defendant-tenant then obtained an award of costs and contractual fees of just over $27,000. Landlord appealed that award, too.

And good thing it did. Had it not appealed the fee award, plaintiff-landlord would have lost its underlying appeal.

Conversely, had defendant-tenant not obtained the fee award, it could have killed the appeal and won the case.

I will explain.

After plaintiff appealed the judgment, defendant moved to dismiss the appeal. The grounds: somewhere along the way, tenant had tendered possession back to landlord. This meant the appeal was moot, because even were the Court to reverse on the judgment concerning possession, the issue of possession was now resolved, so there was nothing left to fight over. "'Generally, an appeal will be dismissed as "moot" when, through no fault of respondent, the occurrence of an event renders it impossible for the appellate court to grant appellant any effective relief.'" (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 77-78.)

Defendant would have been correct. Except for one thing: there was still one thing left to fight over: defendant's $27,000 fee award. So although an appellate decision favorable to plaintiff would make no difference on the only substantive issue in the lawsuit – possession – it would eliminate defendant's fee award. So, the appeal was not moot.

(In the separate appeal on the fee award, defendant argued that that appeal was "frivolous" because its fate hung in the balance of the first appeal. In fact, defendant had it backward: the fate of the first appeal hung on the balance of the fee appeal because, had plaintiff not appealed the fees, the first appeal would have been dismissed as moot.)

The Fourth District went on to hold that, although the trial court was correct in granting the motion for judgment on the pleadings, it abused its discretion by not granting plaintiff leave to amend its pleading defect. "If there is a reasonable possibility the defect in the pleading can be cured by amendment, denial of leave to amend is an abuse of discretion." (Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 209.)

The upshot: Close to 5% of appeals are dismissed on procedural grounds. Had the respondent walked away from its right to in attorney fees, it would have established the appeal was moot and obtained dismissal of the appeal. Instead, respondent stood on its $27,000 fee award, the appeal was decided on the merits against respondent, thus automatically reversing its fee award. And insult to injury: respondent was stuck with the bill for appellant's costs on appeal.

...But that's nitpicking, innit?

In the lease dispute in KJ Investment Group v. American Heritage College, (D4d3 Oct. 1, 2020) No. G058270 (unpublished), defendant, fresh off a loss on its challenge to the judgment against it, filed a second appeal, this time to the award of about $80,000 in fees. (At under six figures, I'd say it got off easy.)

But defendant did not seem terribly interested in arguing the fee award. Indeed, a puzzled Fourth District noted "[t]he purpose of this appeal [of the fee order] is unclear because [the] opening brief focuses primarily on arguing again the merits of the judgment." And you can't do that, because an appeal is not an opportunity to retry a case based on evidence not presented in the trial court. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 ["[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court"].) Not to mention defendant did not include anything in the record concerning the underlying judgment.

So the Court denied defendant's requests for judicial notice of documents whose only relevance was to besmirch the final judgment. (I'd say it got off easy.)

Defendant did make one – and only one – argument aimed at the fee award. And that was that plaintiff's counsel had engaged in conduct (not specified) that caused plaintiff's principal (by means not specified) to provide inaccurate testimony at trial, which thus disentitles counsel to fees (for reasons not specified).

The Fourth District, still puzzled, declines to strain itself further, noting "we are not bound to develop appellants' arguments for them." (Public Employment Relations Bd. v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927, 939.)

And besides, defendant waived that argument by not raising it in the trial court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 ["'An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method'"].)

Held: Fee award affirmed, with respondent to recover its costs on appeal. And given its entitlement to contractual fees, it will recover its appellate attorney fees against defendant as well. Which is the same result as if defendant had been sanctioned for what appears to have been a nigh-totally meritless appeal.

Except its attorney will not have to report it to the Bar.

(So, I'd say he got off easy.)

Failing to timely seek fees after judgment does not forfeit the right to seek postjudgment fees, holds the Second District, Division Six in Vincent v. Sonkey (D2d6 Dec. 29, 2020) No. B293251.

After obtaining a default judgment of $123,000 on a lease agreement, plaintiff failed to file a motion for attorney fees. Defendant then moved to set aside the default, claiming she did not have notice of the action. The trial court initially granted the motion and set aside the default, but on plaintiff's motion for reconsideration, the trial court thought better of it:

"Upon reconsideration," the trial court said, "the court strikes [defendant's] declaration based on her lack of veracity."

Defendant filed another reconsideration motion, this time unsuccessfully.

By now, plaintiff's fees for this postjudgment work plaintiff cut into her judgment substantially. So she moved for fees for her postjudgment fees. But the trial court denied her fees, relying on Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479, which held that "a party seeking entry of a default judgment must apply for all of the relief sought-including attorney fees-when application is made for entry of default."

The Second District reversed. Garcia's holding did not reach postjudgment fees, and "[t]here is no statutory authority to impose a forfeiture here. Forfeitures are not favored in the law." (Except, this cynic notes, when the court would prefer to affirm.)

In these circumstances, it would be foolish to conclude plaintiff's forfeiture of her right to prejudgment fees operated as a forfeiture of postjudgment fees as well. As the Court pragmatically observes, plaintiff "could have reasonably decided to forfeit attorney fees for the small amount of time it took her attorney to file the complaint and take a default. But at the time of the default judgment, she could not have predicted that the defaulting defendant would set aside the judgment and become a party post-judgment."

The Court reversed and remanded to consider plaintiff's fee motion on the merits.

In this dissolution proceeding in Nevai v. Klemunes (In re Marriage of Nevai) (D3 Dec. 29, 2020) No. C086584, wife, who had quit her engineering career to raise the couple's child, asked for monthly permanent support of $10,000 from husband, who earned between $16,000 and $18,000 per month. Wife also asked that husband be ordered to pay both side's attorney fees. The trial court awarded her only $3,584 per month, based on a computer-generated report, and denied her fees.

Wife appealed, arguing the trial court's rulings were not supported by express findings on the factors required under Family Code sections 2030, 2032, and 4320.

Ordinarily, a losing party must follow a rigorous process of requesting findings and objecting to missing or insufficient findings. Wife did not follow that procedure here. No party requested a statement of decision. And as husband correctly argued on appeal, in the absence of a statement of decision, under the implied-findings doctrine the reviewing court presumes the trial court followed the law, weighed the required factors, and made all findings necessary to support the judgment.

And these implied findings concerning support and fee orders will be upheld unless the reviewing court finds the trial court abused its broad discretion.

The Third District declined to follow these presumptions, however, and held the trial court abused its discretion by following a computer-generated model rather than exercising independent judgment. Following In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525, even starting with a computer-generated figure "and then mak[ing] adjustments" falls short of the required independent findings required by section 4320, because "the ultimate order is not really the product of a truly independent exercise of judicial discretion." (Schulze, at pp. 526-527.)

Indeed, the permanent award was only $89 different from the computer-generated temporary order, leading the Court to conclude it could not indulge the fictional inference that the trial court made the independent findings required of it.

The Court held the same regarding the trial court's order denying wife's request for attorney fees under Family Code section 2030. Section 2030 requires explicit findings, which also were not forthcoming here. And the Court again declined to indulge the presumption they had been impliedly made, given the trial court's "equivocal" "mus[ing]" that wife "might prevail in a [section] 2030 argument," but that she "certainly would not prevail under a [section] 271 argument," which left unanswered "whether the court granted or denied wife's request for need-based fees, let alone whether and how it weighed the three required findings regarding reasonableness, disparity in access to funds, and husband's ability to pay for legal representation for both parties."

The upshot: While the statement of decision is normally requested by the losing party, the prevailing party also should consider requesting a statement of decision when necessary findings are missing.

Most attorneys will, at some point or another in their careers, find they have failed to make a court appearance. When that happens, an order to show cause (OSC) will issued requiring the attorney to explain to the court what happened. Hopefully, the attorney can give a good reason for the absence and avoid sanctions.

Most attorneys will not, it is to be hoped, do what the attorney did in Am. Express Bank FSB v. Singh (D4d2 Dec. 30, 2020) No. E074042. That attorney was required to show cause for his failure to personally appear (which, in 2019, had not yet become extraordinary). He had been required to personally appear because, it appears, he had forged his clients name on a substitution of attorney form when seeking to withdraw as counsel. Instead of personally appearing, the attorney appeared by telephone.

That attorney, you will not be shocked to learn, did not avoid sanctions of $1,000, which he was required to report to the State Bar.

That attorney did, however, reverse the sanctions on appeal, as the sanctions order lacked a specific statement of the conduct being sanctioned. But unfortunately for the attorney, that will not do him any good.

The opinion, while giving the attorney a nominal victory, offers him no solace. As the Fourth District explained, Code of Civil Procedure section 177.5 gives the trial court broad authority to impose sanctions for violating court orders. The Court also noted that the record, even despite lacking a transcript of oral proceedings, amply supported the imposition of sanctions.

The Court also suggested that attorney might have argued whether "personal" appearance did not contemplate the use of a telephone, but that attorney apparently conceded that he needed to be physically present in the courtroom.

But the Court begrudgingly reversed because section 177.5 requires that "[a]n order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order." Here, the trial judge simply ordered sanctions, citing legal authority, but making no record whether the sanctions were for the apparent forgery, or for the failure to personally appear.

(The Court indicated the trial judge appeared to intend to sanction the attorney for the failure to personally appear, not for forging his client's signature. And the trial court specifically intended that that failure – and not the forgery of his client's signature – be reported to the State Bar. An odd way to wield the sanction power.)

"Nevertheless," concluded the Court, putting a final pin in attorney's balloon, "[o]n remand, the court will be able to reenter its order with adequate justification."

In other words, the trial judge is invited to enter the same order as before, so long as it includes an explanation of the conduct or circumstances justifying it this time.

Two recent unpublished cases remind that appeals are lost for failing to designate a sufficient appellate record, and, when challenging findings as lacking substantial evidence in support, for citing only evidence supporting reversal rather than supplying the evidence to support the judgment.

In the real estate nondisclosure case in Newstart Real Estate Inv. v. Huang (D2d8 Dec. 18, 2020) No. B289513, the trial court rejected plaintiff's alter-ego claim. On appeal, plaintiff urged that the alleged alter ego failed to keep corporate formalities. The Second District, Division Eight held: "Plaintiff has waived this contention by discussing only the evidence favorable to its position. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274 [an appellant must discuss all significant facts, and the failure to state all of the evidence fairly in its brief waives the alleged error].)"

(It is worse than this, really, because when a plaintiff loses a claim for failing to meet its burden of persuasion, the matter is at an end, and the finding is beyond appellate review: “In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.” (Sonic Mfg. Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.))

Plaintiff-appellant also argued the fees awarded him were insufficient. But appellant omitted some of the fee bills in support of the motion, thus making the record inadequate to review the claimed error.

The second recent case involves a contested probate proceeding with the probate court siding with sister over brother concerning their father's estate. In Estate of Greer (3D Dec. 21, 2020) (unpublished) No. C087492, the probate court awarded $10,000 in unpaid rent against the son who had lived in the estate home, and a statutory penalty of $5,000 for bad faith conduct. Son appealed, but nearly every one of his arguments lost because he failed to prepare a good appellate record, omitting various pleadings and exhibits.

For example, son argued under the will he, not sister, should have been executor. But, the Court noted, the record "does not contain the trust declaration," and did not include the moving papers and transcripts, or the probate court's order. Thus, brother forfeited this argument.

Son also sought reimbursement of expenses, citing exhibits that supported his argument. But these exhibits were not included in the record, either. Thus, forfeited.

Son also argued the award of attorney fees to his sister was excessive. Here again, the record had holes in it, so the Court must "presume sufficient facts support the trial court's findings of fact and exercise of discretion."

Son also failed to include the record supporting he did not act in bad faith. So again, the Court must "assume all facts necessary to support any implied ruling" existed.

The Upshot: Substantial-evidence appeals must include all evidence supporting the judgment; and if there are any gaps in the appellate record, the Court of Appeal will presume those gaps are chock-full of evidence supporting the judgment, and totally barren of any evidence supporting reversal.

Hiring an appellate specialist is an excellent way to avoid losing appeals for these easily-avoidable procedural missteps.

When the trial court issues a tentative ruling, counsel often will "submit" on the tentative and give no further argument. On occasion I have noticed counsel saying they "stipulate" to the tentative. I have always taken this as a slip of tongue of no real consequence.

Do not be misled: there is a consequence. "Stipulating" to a tentative acquiesces in it, waiving further arguments against it. "Submitting" on a tentative is neutral, and is not a waiver.

So observed the Fourth Appellate district, Division One in Lave v. Charter Commc'ns, LLC (Cal. Ct. App. Dec. 21, 2020) No. D076206. After prevailing in on a wrongful termination and FEHA case, plaintiff sought attorney fees of $532,000, doubled to over $1 million based on a lodestar calculation.

In its tentative ruling, the trial court refused to apply a lodestar, and reduced the attorneys' hourly rates, and awarded $400,000. At the hearing, plaintiff's counsel stated he would "stipulate to the tentative" and made no further argument.

On appeal, plaintiff argued the trial court made a mathematical error in computing the total award.

The Fourth District held plaintiff had forfeited the issue by not raising it in the trial court, emphasizing counsel's "stipulation" to the tentative ruling. The court cited Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406, in which the Second District rejected a similar claim of forfeiture when the appellant had "submitted" on a tentative. That is different, because “[s]ubmission on a tentative ruling is neutral; it conveys neither agreement nor disagreement with the analysis,” and appellant's arguments had been preserved in the briefing below.

In Lave, however, appellant had "acquiesce[d] in the order by stipulating to the tentative."

The Court also notes that the trial court need not provide a mathematical analysis, or any analysis at all, in support of a fee award. But had the trial court committed a mathematical error over appellant's duly-raised objection, it would have been reversible. "Stipulating" to the tentative and not raising the computation objection lost the appeal here.

Expert declarations opposing summary judgment ordinarily do not need an extensive analysis, and evidentiary objections ordinarily must be ruled upon or else deemed denied. But in a 2-1 decision out of the Fourth Appellate District, Division Three in Menges v. Dep't of Transp., G057643 (Cal. Ct. App. Dec. 24, 2020), that was not the case.

After an auto accident at the bottom of an off-ramp, plaintiff sued CalTrans for negligently designing the off-ramp. CalTrans moved for summary judgment, arguing it was entitled to design immunity because the off-ramp design had been in compliance at the time of construction in 2008. The trial court granted summary judgment, finding the design plans reasonable and finding plaintiff had failed to establish the project had not been build according to the plans.

In a split decision, the Fourth District affirmed. After CalTrans established its design immunity defense, plaintiff argued the trial court should have credited her experts' declarations that CalTrans had failed to actually build the off-ramp in conformity with the plans. Presiding Justice O'Leary, joined by Justice Bedsworth, rejected this argument because plaintiff's experts lacked foundation for their conclusions. Although CalTrans failed to ensure the trial court ruled on its foundation objections, the Court inferred the trial court had agreed the declarations lacked foundation, and the Court agreed CalTrans' objections were "convincing."

In dissent, Justice Thompson takes the majority to task for breaking with precedent concerning unruled-upon objections concerning a summary judgment motion. When the trial court fails to rule on such objections, the reviewing court is required to presume the trial court overruled them. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.)

Moreover, Justice Thompson went on, there was nothing objectionable about the expert declarations, which are only required to set forth their factual conclusions.

And further, Justice Thompson notes the majority proceeded to weigh the relative credibility of the parties' experts, which is "patently improper" on summary judgment. If the court is to give any weight to the evidence in the context of a summary-judgment motion, it is supposed to "strictly construe the evidence of the moving party and liberally construe the evidence of the opposing party; and we must resolve all evidentiary doubts or conflicts and indulge all reasonable inferences in favor of the opposing party."

Justice Thompson then provides an exhaustive analysis of several design immunity cases, concluding the defendant-friendly "substantial evidence" minimum threshold does not apply to the question whether CalTrans constructed the project in conformity with the plans, a question which must go to the jury.

A final good reminder in MSJ practice: The Court also found the trial court did not abuse its discretion in refusing to continue the hearing on the motion. While such a continuance is mandatory when requested in an affidavit demonstrating the continuance is needed to obtain additional facts (Code Civ. Proc., § 437c(h)), plaintiff submitted no affidavit, instead making the request at the end of the hearing.