Legal News and Appellate Tips

One reason I like to read unpublished opinions is they are a little bit less guarded in their analyses. Even if the outcomes would not be different had the opinion been published, the courts sometimes offer analyses that seem somewhat unusual, or incomplete, and these can give a glimpse into how the justices and their research attorneys are struggling through the issues in the case.

I got this impression reading San Felipe Farms L.P. v. LLY Ranch (D4d3 Jul. 8, 2021) no. G060126. It involves an appeal that seems clearly moot, and from an order that seems clearly nonappealable. But the court for some reason did not want to dismiss the appeal on either of those grounds – and in so doing suggests a possible loophole in the appealability doctrine that may be larger than typically advertised.

The court also noted the appellant had put its toes right on the line of its duty of candor.

When you are trying to determine if an order is appealable, that question is normally pretty cut-and-dried. But not in the probate case of Manvelian v. Manvel (D2d7 Jun. 22, 2021) no. B297334 (nonpub. opn.). The Second District Court of Appeal spent several paragraphs, evaluated the factual record, and threaded its analytical needle through multiple cases, including 100-year-old Supreme Court precedent, to determine that, though it is a "close call," the order denying a motion to vacate an order confirming a settlement was appealable.

You can usually tell whether the order is appealable just by the title or nature of the order. It should not require researching 100 years of precedent to find out if an order is appealable. But that is what it took here.

The Upshot: If you plan to challenge an order or judgment in a motion to vacate in probate court, try to raise issues and evidence that were not available at the time the underlying order or judgment was issued. That will help ensure an order denying your motion is independently appealable.

But if you do not need to raise new issues or evidence, make sure to timely appeal the underlying order or judgment. (In fact, you might timely appeal it regardless. You should consult an appellate attorney in this situation.)

The plaintiffs in Aghaian v. Minassian (D2d8 May 24, 2021) no. B296287 are children of Iranians who fled during the Iranian Revolution. Their parents had amassed a large amount of property, and had asked the defendant, a family friend, to recover it for them. Turns out the defendant used the opportunity to enrich himself by some $34 million. The children sued, and the defendant argued Iran was a more suitable forum. Iran? the Court of Appeal asked. That Iran? Iran is not a suitable forum.

But by the time the first appeal was done, the plaintiff had initiated proceedings in Iran. Now can we litigate in Iran, the defendant asked again? Look, the plaintiffs have waived their objections to Iran!

No, the Court of Appeal responded in this second appeal. We have already decided the question. It is law of the case. Our holding is our holding. It cannot be waived.

But: An order denying a motion for inconvenient forum may be reviewed as an interlocutory order following a final judgment. The defendant did not waive his right to appellate review by failing to file a writ petition.

The Second District Court of Appeal has the latest update in the fight over Charles Manson's estate. After Manson died in 2017, the probate court ordered Freeman was the sole surviving adult next of kin, and authorized to determine the disposition of Manson's remains. Manson penpal and "murderabilia" collector Channels disputed Freeman's kinship, and moved for genetic testing under Probate Code section 6453.

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

Before reaching the question, however, the court found a jurisdictional defect. The court concluded the order appealed was not an appealable order. But the court exercised its discretion to treat the appeal as a writ petition because the improper genetic test "will involve an invasion of Freeman's privacy that cannot be undone," leaving Freeman with "no adequate remedy at law."

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

An order granting terminating sanctions may seem like the end of the world. It isn't. The judgment on the order granting terminating sanctions is the end of the world. Then, and only then, may you appeal.

Chung & Assocs. v. Mendoza (D2d1 Feb. 18, 2021) No. B297304 (unpublished)

Practitioners know that amendments to pleadings are liberally allowed. But every now and then, they are denied. What can you do then?

An order denying leave to amend is not directly appealable. So that's out.

You could try your case on the existing complaint and appeal if you are unsuccessful. But in that case, it would be difficult to establish any error in denying leave was prejudicial – after all, the trier of fact rejected your evidence.

There's always a writ petition. Good luck with that.

The solution: Strategic voluntary dismissal to expedite an appeal.

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 […]

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 […]