It is something I did not know, anyway:
Plaintiff can still recover post-offer fees even if Plaintiff does not beat the 998 offer.
In Regueiro v. FCA US, LLC (2d Dist., Div. 1 Nov. 19, 2020) Case No. B301772 (unpublished) (https://www.courts.ca.gov/opinions/nonpub/B301772.PDF), Plaintiffs sued on the Song-Beverly Act (lemon law). Defendant made a CCP 998 offer. Three of them, actually, starting at $50,000 and going up from there to over $140,000. Plaintiffs rejected all of them, and then prevailed on their implied warranty claim, but only recovered about $25,000. Plaintiffs didn't remotely beat any of the 998s.
So that means Plaintiffs were foreclosed by CCP 998 from recovering any post-offer fees, right? Nope. The trial court awarded post-offer fees anyway, totaling $83,000.
Defendant appealed, arguing the post-offer fee award was erroneous under CCP 998.
The Second District, Division One, disagreed. The Court noted the statutory language of CCP 998 mandates that no post-offer costs may be awarded. But no such bright-line rule applies to fees. Instead, the trial court has discretion to determine whether plaintiff acted reasonably in rejecting the 998 offer. (Even though the Plaintiffs here did not remotely beat the 998 offers, the lemon law provides statutory penalties, so the court held it was reasonable to hold out and reject the offers under those circumstances.)
Indeed, fee awards that reject post-offer fees, without any analysis of plaintiff's reasonableness in rejecting the 998 offer, may be reversed on that basis. (Etcheson v. FACA US LLC (2018) 30 Cal.App.5th 831, 840.)
Here is something else you might not know about 998 offers: They can prevent Plaintiff from becoming the "prevailing party." (The upshot of this, however, neither the trial nor appellate courts could figure.)
In Geiger v. Floyd’s 99-California, LLC (4th Dist., Div. 3 Nov. 18, 2020) Case No. G056747 (unpublished) (https://www.courts.ca.gov/opinions/nonpub/G056747.PDF), Plaintiff brought individual and PAGA claims, and the individual claims were compelled to arbitration, where plaintiff accepted a 998 offer, and the arbitrator awarded plaintiff pre-offer costs and fees. The arbitrator also determined Plaintiff was the prevailing party.
The trial court affirmed the fee award, but deleted the arbitrator's prevailing-party determination, because the 998 offer denied employer's liability. The trial court also dismissed the PAGA claims, as plaintiff no longer had standing to pursue them.
On appeal, the Fourth District, Division Three, in an opinion written by Acting Presiding Justice Fybel, affirmed the trial court's ruling on the 998 issues. The 998 offer was an arbitration agreement, which by its terms denied employer's liability and permitted plaintiff to recover his costs fees as determined by the arbitrator. Thus, plaintiff employee's recovery was entirely by agreement, not by judicial determination, and thus was not a prevailing party.
If you are curious, this correction of the arbitrator's award is not a correction of a mistake of fact or law. Instead, the arbitrator's prevailing-party determination was an act in excess of the powers conferred on the arbitrator. See CCP § 1286.2(a). That is because the fee determination was made by agreement of the parties, not by a judicial determination of the merits of plaintiff's claims.
Even so, the Court of Appeal seemed to wonder, as the trial court did, "why the parties are fighting so strenuously over this seemingly unimportant issue." (I suspect Plaintiff believed it would get him some traction on his PAGA claims.)
The Court reversed the dismissal of the PAGA claims, however. Noting the California Supreme Court this year in Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73 held that a plaintiff's settlement of individual claims does not affect standing to pursue PAGA claims, the Court reversed to allow the PAGA claims to proceed.
Defendant was hit with a $103k fee award under the UFTA (fraudulent transfer statutes). In fact, there is no published California authority holding there is such a right to fees under the UFTA. And out-of-state authorities say no. (https://www.calattorneysfees.com/2020/11/substantiation-of-reasonableness-of-fees-detailed-time-entries-supported-103950-fee-recovery-under-f.html.)
But, trial counsel did not raise that issue in the trial court.
Defendant did raise it on appeal. But too late, held the Second District, Division Four in Shin v. Chung, Case No. B301055 (2d Dist., Div. 4 Nov. 18, 2020) (unpublished):
“It is a well-established tenet of appellate jurisprudence that a litigant may not pursue one line of legal argument in the trial court, and having failed in that approach, pursue a different . . . line of argument on appeal, thus depriving the trial court of the opportunity to consider what the appellant contends on appeal is the real dispute.” (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1519.)
Fortunately for defendant, an appellate court may always "entertain a belatedly raised legal issue" in the court’s discretion. (Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1275.)
But, never missing an opportunity to miss an opportunity, defendants did not ask the Court of Appeal to exercise its discretion.
As appellate counsel, I see missed legal issues in the trial court all the time. But there are often ways to cure the defect and rescue your case. Ignoring it is not one of those ways.
Affirmed.
https://www.courts.ca.gov/opinions/nonpub/B301055.PDF
Posttrial motions are a procedural minefield. Today's example: whether you have 180 days to file your posttrial motion, or a mere 15 days, depends on the fine print in the clerk's notice of entry.
The case is Simgel Co. v. Jaguar Land Rover N. Am. (D2d8 Oct. 1, 2020) No. B292458 (opens in new tab). It is a lemon law case where the jury completed an ill-prepared verdict form to award plaintiff $26k in rescission damages. Judgment was entered. Entry of judgment sets up a 180-day deadline to file a notice of intent to move for new trial, to set aside and vacate under CCP 663, or for JNOV.
But the clerk served a notice of entry of judgment. A notice of entry sets up a tight 15-day deadline to file the notice of intent.
Here, the defendant filed its notice of intent 20 days later. Too late. The defendant missed the deadline, and the deadline is jurisdictional.
But wait, says the Second District. We have to take a closer look at the clerk's notice of entry. That is because the clerk cannot alter the jurisdictional deadline just on the clerk's own. Instead, the clerk's notice is only effective if that notice was provided “upon order of the court” or “under § 664.5.” The Supreme Court so held in Van Beurden Ins. Services, Inc. v Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51.
Held: The clerk's notice of entry was not effective to trigger the 15-day deadline, thus the 180-day deadline applied and the defendant's posttrial motions were timely. And the defendant's arguments were well-taken, thus the judgment was reversed.
Had the plaintiff filed its own notice of entry instead of relying on the clerk's, the outcome may have been different.
(Note this advice, about the plaintiff serving a notice of entry instead, does not apply in family law cases involving dissolution, nullity, legal separation, child custody/support, or parental relationship cases. In such cases, the clerk is required to serve the Notice of Entry on form FL-190. CRC 5.413, CCP 664.5(a). A party Notice of Entry is inapplicable. Also, in pro per cases, the clerk is required to serve the Notice of Entry. CCP 664.5(b).)
A further note: The deadline for the court to rule on a new trial motion (75 days under new CCP 660) does not start unless the notice of entry or clerk's mailing affirmatively states notice was given "upon order by the court" or "under CCP 664.5". CCP 660.
A still further note: Other than for posttrial motions and other special cases, the general rule is that the service of a clerk's notice of mailing of the file-stamped order triggers the 60-day deadline to appeal under 8.104, even if not ordered by court per CCP 664.5.
Posttrial motions are a good time to consult appellate counsel!
So holds Provost v. Yourmechanic, Inc., No. D076569 (D4d1 Oct. 15, 2020), where an employee alleging misclassification and wage-and-hour claims, both individually and as a PAGA representative, defeated employer's motion to compel arbitration.
The Fourth Appellate District, Division One, explained that the state is the real party in interest in all PAGA claims, and the state never consents to arbitration. And several recent cases, including a 2020 Cal. Supreme Court case, Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, have held the threshold question -- whether the plaintiff is an "aggrieved employee" with standing to bring the representative PAGA claim -- may not be split and arbitrated separately.
Recently on the California Appellate Law Podcast, we covered AB 3070, which imposes new procedures when making a peremptory challenge of a juror, including providing a valid reason for the challenge (which means, the challenge is no longer peremptory). Although AB 3070 does not go into effect until 2022, judicial temperaments are already strained if People v. Williams (D2d6 Aug. 27, 2020) B298358, is any indication.
That case involved a black defendant who, angry that his neighbors' children were playing in front of his house, fired a gun into the neighbors' house, leaving bullet holes in the door, couch, pillow, and computer. Being his third strike, defendant was sentenced to 59 years to life.
On appeal, defendant argued the prosecution's challenge to a black juror (the only black juror remaining after another was excused by stipulation of the parties) was based on racial discrimination. When defendant raised the Batson/Wheeler motion at trial, the prosecution explained the challenge was based on the juror's occupation as a behavioral therapist.
Presiding Justice Gilbert, writing for the majority for the Second District, Division Six, concluded the record supported the challenge was not based on race. The majority also found it unconvincing that the prosecution did not challenge an occupational therapist and a psychology student, both non-black.
But Justice Tangeman, writing in dissent, was troubled by the fact that the challenge removed "the only remaining" black juror, and that the occupational therapist and psychology student were not challenged. The dissent would require the prosecutor to give further "reasons for excluding" the black juror, and "reasons for not excusing otherwise-similar jurors."
To which suggestion PJ Gilbert shot back: “To what end? To invent a reason acceptable to the dissent?”
The Supreme Court denied review.
To leave you with a much less consequential gripe: Did you know the 2/6 still uses two spaces after a period? How quaint.
Remote Appellate Arguments Could Be Here to Stay
According to a survey conducted by the clerk of the Ninth Circuit, an overwhelming 86% of lawyers who have given oral arguments remotely thought the level of engagement with the judges was the same or better than in-person proceedings.
A lower percentage, though still a majority, rated the experience to be overall positive, with 62% rating the experience similar to or even better than in-person proceedings. The remaining 38% rated it worse.
Nonetheless, most attorneys were reluctant to support future remote arguments unless in the case of a pandemic or where opposing counsel was also appearing remotely. Only 13% would appear remotely again without those conditions.
The survey was reported here: https://lnkd.in/dKHNwpp
A recent unpublished decision sets up three good lessons: (1) SLAPPing based on plaintiff's subjective intent to chill protected conduct is meritless and sanctionable; (2) but sanctions are not available on appeal unless sought in a separate motion; and (3) whether a defendant may recover costs against a plaintiff who voluntarily dismisses claims may depend on which appellate district you are in.
In Lang v. Petaluma Hills Farm, LLC (D1d5 Nov. 20, 2020) A156614, neighbors sued other neighbors running a cannabis farm as a tourist attraction, for nuisance and operating without licenses. The cannabis farms responded with an anti-SLAPP motion, arguing the plaintiff's subjective intent in filing suit was to oppose the farms' permit application. The motion was denied as frivolous, because "it is well-established that [subjective] intent is irrelevant."
The defendant farms narrowly avoided appellate sanctions, which the Court of Appeal denied because the request was not made in a separate motion as required by CRC 8.276(b)(1). Had plaintiffs filed a separate motion, they might have recovered their fees on appeal.
Then there is a curious ruling at the end of the opinion. Three plaintiffs had decided to voluntarily dismiss their claims, so defendants sought their costs against those plaintiffs. But the trial court struck defendants' cost memo "without prejudice" to seeking them "at the end of the litigation." The First District affirmed this ruling, holding that, as it was without prejudice, it was not a final ruling, and thus the defendants would have to wait until there was a "final judgment" to seek costs against the dismissed plaintiffs.
This strikes me as obviously incorrect. When the clerk entered those plaintiffs' requests for dismissal, those claims were finished: there was nothing left to be adjudicated concerning those plaintiffs. Defendants were entitled to seek their costs against those plaintiffs now. (The "final" component in the Final Judgment Rule applies on a party-by-party basis, asking whether all claims against that party have been adjudicated.) So the Court of Appeal should have reviewed the denial of costs against the dismissed plaintiffs on the merits.
In fact, by the time the case is resolved, the time to seek costs against those plaintiffs -- having dismissed their claims many months or years ago by that time -- will have expired. (I may write more about this later: the cases are convoluted in their treatment of the appealability of voluntary dismissals.)
Apparently, there is a split of authority on this question as it concerns the appealability of cost awards, with the Second District, Division Three, holding orders following a dismissal without prejudice are not appealable, and the Fourth District, Division Three, holding they are appealable. The Second Division of the Fourth District followed the Third Division in the 2018 opinion in Gassner v. Stasa (D4d3 Dec. 17, 2018) E068058, at *8, agreeing that “the law has taken a wrong turn” and that “[c]ommon sense dictates that we forego a hypertechnical interpretation of [Code of Civil Procedure] section 904.1 that would leave the [defendants] without the right to appeal despite an adverse judicial ruling ending the action and their right to seek attorney fees."
In Lang, however, given the trial court granted plaintiff's preliminary injunction, it appears unlikely the defendants will ultimately prevail. But if you represent a defendant against multiple plaintiffs and certain plaintiffs voluntarily dismiss their claims, and if you are not in the Fourth Appellate District, you may have to get creative to preserve your right to recover costs.
So holds the Fourth District, Third Division Court of Appeal in Buechler v. Butker, Case No. G058054 (4th Dist. Div. 3 November 23, 2020) (unpublished), where plaintiff sought contempt against defendant for failing to comply with an agreement to remove defendant's sewer system from a sewer line. The agreement was reduced to judgment that also awarded contractual attorney fees. Plaintiff's effort to hold defendant in contempt was unsuccessful, in part because plaintiff kept shifting its position on how the sewer line was to be removed. So the trial court denied plaintiff's request for enforcement fees, noting the judgment did not provide for enforcement fees, and because plaintiff's enforcement effort was unsuccessful.
Reversing, the Fourth District, in an opinion by Justice Ikola, held nothing in CCP § 685.040 requires a plaintiff's judgment-enforcement efforts to be successful. Instead, they need only be “reasonable and necessary." As the trial court did not consider this factor, the case was sent back. (As covered here, failing to exercise discretion in an abuse of discretion.) Also, under section 685.040, a judgment need not expressly provide for further attorney fees; it need only contain an award of contractual attorney fees.
I admit I find the outcome a bit surprising. The trial court's finding that plaintiff's efforts were not successful sounds close enough, to me anyway, to a finding that those efforts were not "reasonable and necessary." Even the Fourth District seems to agree with the trial court's outcome, stating plaintiff's efforts "were counterproductive" and "actually inhibited the enforcement of the judgment.”
So given the Court does not seem to disagree with the trial court's ruling, and given the court did not find its opinion worth publishing, I find the outcome somewhat unusual. Nonetheless, it is a helpful reminder that plaintiffs enforcing a judgment have the wind at their backs, and tend to enjoy every presumption in their favor.
Two recent cases caution litigants to take special care when preparing a notice of appeal. Though unpublished, these cases give insight into how appellate courts analyze your notices of appeal.
When the trial court sustained two demurrers to his complaint, the plaintiff in Renfro v. Kai-Lieh Chen, F076083 (D5 Apr. 6, 2020), used the Judicial Council form to prepare a notice of appeal. There is a box to check for "judgment of dismissal after ... demurrer." But Renfro did not check that box. Instead, he checked "Other," and explained he was appealing the "judgment on demurrer 5/23/2017," which was the date of the order sustaining the demurrer (which is nonappealable), and "relief from dismissal." Given the liberal treatment of notices of appeal, that might have been ok. The notice just has to indicate what judgment or order you are appealing. Referencing the dismissal might be close enough.
But, Renfro was not done. Although there is no requirement to attach anything to the notice of appeal, Renfro attached the order sustaining the demurrer, and did not attach the judgment of dismissal. Now Renfro has made it even less clear what he is appealing: the judgment (appealable)? Or the order sustaining the demurrer (not appealable)?
Still, I would argue that the liberality principle says that, when it is not clear which of two orders is being appealed, we ought to assume appellant means to appeal the order that may be appealed, and not the order that may not be appealed.
But, Renfro still was not done. The Fifth District out of Fresno invited Renfro to clear things up. Renfro should either explain how the court has jurisdiction to consider an appeal from a (nonappealable) order sustaining a demurrer, or, why not just file a copy of the judgment? (Hint, hint.) Taking the road less traveled, however, Renfro chose neither, and instead asked for leave to augment his notice of appeal to include the order sustaining an earlier demurrer, too.
No, said the Court, you may not augment your notice to add another (nonappealable) order.
Not finished digging, Renfro then asked, if he may not augment his notice, may he at least amend it? (I am aware of no difference between the two.)
No more hints for you, Renfro. The Court took the matter under submission. "[T]here are limits to our ability to liberally construe a notice of appeal," the Court wrote in its opinion. The Court refused to review the order sustaining the first demurrer.
Yet, the longsuffering Fifth District still considered Renfro's appeal of the judgment (though only as to the second demurrer).
Would the Court would have been justified in dismissing the entire appeal due to the defective notice of appeal? The Fifth District leaves us assuming it might be.
But the liberal construction of notices of appeal prevails in the recent personal-injury case of Morales v. Harris, G057729 (D4d3 Nov. 17, 2020). There, in completing her Judicial Council form notice of appeal, Morales checked the box for "Judgment after jury trial." So far, so good.
But, not having learned from Renfro, Morales unnecessarily attached a copy of the minute order denying her postjudgment motions. She did not attach the judgment.
Morales, again like Renfro, also gave the wrong date of the judgment in her notice of appeal. Instead, she wrote the date her postjudgment motions were denied. "If Morales only intended to appeal the JNOV ruling," the Fourth District said, "she should have checked the box" for orders under Code of Civil Procedure section 904.1(a)(3)-(13).
(Curiously, the Court also goes out of its way to instruct litigants on the proper method of appealing an order denying a motion for new trial -- that is, to "check[] the 'other' box ... and describe and specify the code section that authorizes the appeal" -- before proceeding to recite the rule that such orders are not appealable anyway, and dismissing Morales's appeal on that basis. It had not occurred to me there was a correct way to do an incorrect thing.)
Fortunately for Morales, the Court construes the appeal to be from the JNOV order (but, unfortunately for Morales, affirms on the merits).
What about Morales's appeal of the judgment? Fortunate again, the Court "conclude[s] Morales intended to appeal from the judgment as well." Although she attached the postjudgment order and not the judgment to her notice of appeal, she did attach the judgment to her civil case information statement. And because the respondent was not prejudiced or misled, liberality requires the appeal be given that effect.
But unfortunately for Morales, the deadline to appeal her judgment was May 9. Her notice of appeal was filed May 10.
Liberality may save a fairly well botched notice of appeal. But liberality will not buy even a single day's extension of the deadline to file it.
A final tip: On a recent episode of the California Appellate Law Podcast, my colleague and co-host Jeff Lewis told us he never uses the Judicial Council form notice of appeal, and instead files his notices of appeal on pleading paper. These recent cases illustrate why that may be worth considering, as appellants may get into hot water on their appeals merely by checking the wrong box.
An ever better tip: If it is time to file a notice of appeal, it is also time to contact an appellate specialist.
Tim Kowal helps trial attorneys and clients win their cases. He co-hosts the Cal. Appellate Law Podcast at http://www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at https://tvalaw.com/articles. Feel free to email Tim at tkowal@tvalaw.com or (714) 641-1232.
A few good tips came across my desk this week. Use in good health.
1. Via Bryan Garner's LawProse (# 351): Before launching thoughtlessly into a grab-bag of arguments, tell your reader how many arguments to expect. If it is a long list, give signposts where your arguments are going before sending your reader on the arduous journey. This will help prevent losing reader by attrition.
Tip: Keeps readers constantly (if only subliminally) aware of how the argument is progressing. Ex. "In ruling on this motion, this Court is presented with three issues—any one of which is dispositive in Burton's favor." Then "First, . . ." It's a simple but powerful format. Remember it and use it.
2. "In terms of." Think through what this means. It is unnecessary 99% of the time, and simply "for" or "in" may be used instead. Usually we use "in terms of" during speech when we get lost in a sentence. There is no excuse for it in writing.
3. Mind how you begin and end sentences. Start and finish strong. This means eliminating the words “It” and “There” to begin sentences, and it is why to avoid ending sentences with prepositions -- prepositions are weak. (Did that last sentence finish with a weak word?)
Anti-SLAPP motions are powerful remedy, and litigants sometimes cannot resist filing even frivolous motions. Can a plaintiff faced with a frivolous anti-SLAPP motion get sanctions in light of the difficult procedural hurdles of CCP 128.5, which requires a separate motion served 21 days before filing it? The Fourth Appellate District, Division Two, says yes, finding these requirements of CCP 128.5(f) to be irreconcilably inconsistent with the anti-SLAPP statute. "We have tried" to reconcile them, says the Court, "but have concluded that it cannot be done."
Faced with fraud and aiding-and-abetting claims in a San Bernardino civil lawsuit, defendants responded with a frivolous anti-SLAPP motion. In its opposition, plaintiff asked the court to award its fees incurred to oppose the frivolous anti-SLAPP. The court agreed, set a hearing to determine the amount, and ultimately imposed almost $62,000 in sanctions against defendants.
That is about all we are given in the way of facts in Changsha Metro Group Co., Ltd. v. Xufeng, E073322 (D4d2), covered in the first two pages of the opinion. Apparently, defendants did not seriously dispute that their anti-SLAPP motion was frivolous and intended solely to delay. Instead, defendants argued they had to be provided a 21-day "safe harbor" notice before they could be sanctioned, and that the sanctions request had to be made in a separate motion. That argument, at least, was not frivolous, as it is explicitly required in the sanctions statute, CCP 128.5(f).
But it did not smell right to the Second Division of the Fourth Appellate District, who, for the rest of its 30 page opinion, tried to find a way to reconcile the sanctions clause of anti-SLAPP statute, CCP 425.16(c)(1), with the sanctions statute, CCP 128.5, which is incorporated by reference in the anti-SLAPP statute. "We have tried," says the Court, "but have concluded that it cannot be done."
The nub of the problem is that 128.5(f), which requires the 21-day safe harbor and a separate motion, preliminarily requires a finding under subdivision (a) that the underlying filing is frivolous entitling the moving party to fees. But subdivision (a) does not require a safe harbor notice, and may be requested either in moving papers "or responding" papers.
The Court considers the possibility that an anti-SLAPP hearing, which otherwise by statute must be heard within 30 days of filing, may be continued to provide plaintiff with more time to make the 21-day safe harbor notice. But the Court concludes that that would only play into the hands of litigants filing frivolous anti-SLAPP motions solely to delay.
Ultimately the Court, concluding there is no way to reconcile the provisions of CCP 128.5(f) with the anti-SLAPP statute, holds sanctions may be imposed through the procedures of CCP 128.5(a) and (c) in cases involving frivolous anti-SLAPP motions.
The Court also makes a plea to the Legislature of amend sections 128.5 and 425.16 to resolve the inconsistency.
Affirmed.
Many orders present an uphill climb because the appellate courts review them under the very deferential abuse-of-discretion standard, which means the order is likely within the trial court's wide latitude. In my appellate practice, however, I have seen a number of discretionary orders -- a small number, but a significant number -- that may be challenged as the product of a failure to exercise discretion altogether, such as refusing to rule on a motion, or accepting counsel's representation sight unseen, or refusing to grant a new-trial motion out of sheer squeamishness.
The most often cited case for this point is Fletcher v. Super.Ct. (Oakland Police Dept.) (2002) 100 Cal.App.4th 386, 392, for its strong quote: “Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal.” (Internal quotes and citations omitted.)
But here are some examples from civil cases.
Take Ashburn v. AIG Financial Advisors, Inc. (2015) 234 Cal.App.4th 79, where a financial advisor, sued by investors, moved to compel the matter to arbitration. The investors vigorously opposed, arguing the arbitration agreement was the product of fraud, and requesting an evidentiary hearing on the issue. The trial court compelled arbitrate, finding no evidence of fraud.
Held: Reversed. Whether to hold an evidentiary hearing was discretionary, but there was nothing to suggest the trial court exercised any discretion at all.
Or in the family law context, take In re Marriage of Gray (2007) 155 Cal.App.4th 504, where husband's defined-benefit pension was reserved for allocation pursuant to "the Brown formula," which vexed the parties and consumed many pages of analysis in the opinion. The trial court decided the Brown formula required the court to employ the time rule, which is a mathematical formula (read: no judicial discretion involved), making the community share of the pension directly proportional to the time the community invested in the pension.
Held: Reversed. The Brown "formula" is not formulaic, it is discretionary. Trial court failed to exercise discretion. That was reversible error.
Similarly, when the trial court employs an erroneously narrow set of factors in exercising discretion, such as in the case of a civil harassment restraining order, that, too, is a failure to exercise discretion warranting reversal. Yost v. Forestiere, F078580, at *1 (Cal. Ct. App. June 29, 2020). (This case was covered in episode 4 of the California Appellate Law Podcast.)
But my favorite failure to exercise discretion is in the case of Gardner v. Superior Court (1968) 182 Cal.App.3d 335, where husband and wife borrowers on a small loan failed to show up to depositions, then failed to show up at a trial setting conference. Husband said he didn't want to travel from their Montana home to San Diego because he had had "bad luck" there. When borrowers failed to show at trial, default judgment was entered. Borrowers then moved to set aside the default, this time submitting affidavits complaining of respiratory infection, bronchitis, and severe weather. etc.
Having witnessed defendants' evasive conduct throughout the proceedings, the trial judge would have denied the motion to set aside the default judgment. But the judge didn't deny the motion. Why didn't the judge deny the motion, you ask? The judge, who clearly had been reversed in the past and had not gotten over it, tells us exactly why:
"I can just see these guys in the Fourth Appellate District. The crocodile tears would be falling all over the place." "I think it is a stall, too, in reality, but that is just not the way they come out when they come up to the 4th District. It comes out, 'Here's the poor citizen, denied their day in court.'"
Well, if the Fourth District had reluctantly reversed this judge before, it was going to relish it this time. In issuing a peremptory writ, the Court found the trial court's exercise of discretion "distressingly absent," and had several quotable things to say on the subject:
"To put the matter plainly, it is the trial judge's job to decide such cases. It is the judge's responsibility to consider and weigh all the evidence and argument and make a reasoned choice. Abdication to some imagined appellate compulsion is not the exercise of discretion." (Italics added.)
And:
"If we are going to make the decisions [in the first instance], we might as well do away with the trial courts and try all cases as original proceedings."
And the capper:
"We encourage our colleague on the trial bench, regardless whether he thinks his views are currently out of fashion, to shoulder his responsibilities as a player on the field of the common law, and leave the determination of hits and errors to the official scorer. By issuing our writ of mandate here, we afford him a second chance to play ball."
Judges may make the wrong call. But don't let your judge get away with a ruling that makes no call at all.
