Legal News and Appellate Tips

H.L. Mencken had it that “democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

In two recent opinions, California courts gave the people what they voted for by enforcing two California voter initiatives: one that is tough on criminal defendants, and another that is favorable to criminal defendants.

• Enforcing the tough-on-crime Three Strikes law, the Los Angeles appellate court handed DA George Gascon a loss on his assertion of prosecutorial discretion to refuse to enforce Three Strikes.

• But the court also enforced the softer-edged Prop 57, the law that requires all criminal charges against minors be tried in juvenile courts. The Supreme Court held Prop 57 was retroactive, with the rather unsettling result that a now-40-year-old who murdered his mother at 16 (he stabbed her 45 times) may soon be released.

Then we turn to some anti-SLAPP news: Another dissent in the 9th circuit arguing that Anti-SLAPP denials should not be immediately appealable.

Then on the expert witness front: A state appellate court holds exclusion of expert opinion is structural error on appeal requiring automatic reversal.

In a 4-3 decision, the majority in People v. Padilla (May 26, 2022, no. S263375) --- Cal.5th ---, started with the proposition that California’s Prop 57, which requires minors to be charged in juvenile court, is retroactive in all nonfinal cases. But when is a case “final”? Here, Padilla, who at age 16 murdered his mother by stabbing her 45 times, was convicted way back in 1999. That seems pretty final, right?

Turns out, “finality” is not quite literal, but more a term of legal art. The majority was more comfortable with blurring the lines than was the dissent, which is why the 4-3 split.

What is surprising about this case is that the high court justices were so evenly split on the question of what makes a judgment “final” — a foundational point of appellate procedure.

The upshot of the majority opinion is that, once a judgment has been successfully reopened to review via a collateral attack, all bets are off, and the judgment is no longer final. So the Prop 57 challenge was available, even to attack the underlying charges — despite the fact that these had been beyond the scope of the collateral challenge.

The upshot of the dissenting opinion is that, although a judgment may be challenged via collateral attack, the review and remedies available should be limited to those available by the collateral challenge. So here, the collateral challenge did not reach the underlying charges, so these should remain “final” and beyond appellate review.

High-profile and celebrity family law attorney Christopher Melcher has represented some of the largest divorce cases in California, including multiple cases ending in published appellate decisions. Chris talks with Jeff Lewis and Tim Kowal about how celebrity-driven cases shape the law, such as the #FreeBritney movement against conservatorship abuse.

Chris then talks about a way to bring more attention to non-celebrity cases through requests for publication of nonpublished opinions that raise important issues. And what kinds of cases pique the Supreme Court’s interest? It is often not what you think, says Chris, which is where bar networks come in handy in keeping up on legal trends.

What was it like to give the first virtual oral argument in the California Supreme Court? And how did the Orange County District Attorney's office create a new legal precedent in California that effectively allows local district attorneys to pursue statewide enforcement actions?

Kelly Ernby of the Orange County District Attorney's office tells Jeff Lewis and me about her experience litigating Abbott Laboratories v. Superior Court in the California Supreme Court. The pharmaceutical company, accused of delaying the generic release of a drug to prop up prices, make a strategic miscalculation by raising statewide enforcement via demurrer. While it was not clear statewide remedies were available when the case was filed, it is now. It is an important lesson in being careful what you wish for.

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The California Supreme Court in *Daly v. San Bernardino County Board of Supervisors* (Aug. 9, 2021) ___ Cal.5th ___ has decided one particular area of the law is unclear and needs "reexamination." When a trial court grants an injunction, and the injunction is appealed, does the injunction still apply during the appeal?

When the Board of Supervisors of San Bernardino violated open-meeting requirements in removing and replacing one of its members, the challenger and a citizen group filed suit and obtained an injunction requiring the Board to rescind the appointment and seat a replacement pursuant to the county charter.

But the Board was not done yet. Hoping to keep the incumbent in office long enough for the upcoming election (see this interesting coverage), the Board appealed, and under Code of Civil Procedure section 916, an appeal automatically stays the order on appeal. But the Court of Appeal denied the Board's petition for supersedeas to effect the stay.

The Supreme Court reversed. And its opinion is a letter to the state legislature to reconsider the appellate stay law.

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Attorneys are aware how important it is to confirm the precedential value of a recent published "smoking gun" decision on all fours with your case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it.
This week, the Supreme Court amended rule 8.1115. Fortunately, the amendment is arguably rather sensible. In short, while Supreme Court review is pending, you can still cite your smoking gun case, and the trial court may follow it, even if another appellate court disagrees with it.
Less fortunate is that, if your smoking-gun case was taken up for review on an issue completely separate from your smoking-gun issue, the case loses precedential effect on your smoking-gun issue, too, as collateral damage.

The California Supreme Court in In re A.R. (Apr. 5, 2021) no. S260928 held that failing to file a timely notice of appeal is not necessarily fatal in a dependency case. This is a surprising holding because, as most practitioners know, reviewing courts treat appellate deadlines as jurisdictional in nature: a hard limit on the court's very authority to act, regardless of merits, good cause, or equity.
Does the Court's holding undermine this jurisdictional rule? To escape the harsh effect of the jurisdictional requirement of filing a timely appeal, the Court relies heavily on another statutory right: the right to competent counsel in dependency proceedings. (Welf. & Inst. Code, § 317.5.) But as the Court acknowledges, the Legislature does not furnish any remedy for this right. Namely, the Legislature does not suggest any exception to the jurisdictional limits on the courts' powers.

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

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition, Covid-based excuses may garner extended appellate deadlines.