Legal News and Appellate Tips

In two surprise post-trial moves—likely driven by embedded appellate counsel—a plaintiff first lost her case, then won it back.

The employee won her whistleblower claim after a jury trial in Ivie v. Astrazenica Pharmaceuticals LP, No. 21-35978, 2023 WL 3563007 (9th Cir. May 19, 2023). But then Astrazenica moved for judgment as a matter of law, and won. The grounds: the employee failed to prove a sufficient factual nexus to Oregon to establish a claim under the state’s whistleblower statute.

Tough break for the employee.

But on appeal, the employee argued that Astrazenica never raised its “Oregon-nexus argument” in the parties’ joint pretrial order. So Astrazenia forfeited that argument.

Astrazenica argued that the district court, by granting its motion for JMOL, impliedly amended the pretrial order to include the defense. But that doesn’t work, the majority concluded. While the district court did have discretion to amend the joint pretrial order, it would need to do that explicitly, and give the plaintiff an opportunity to respond to the belatedly-asserted defense. That didn’t happen here.

Dissenting, Judge Bumatay noted that, while Astrazenica did not “explicitly” identify the Oregon-nexus defense, it did assert a “failure to state a claim” defense and pleaded that the employee was not entitled to any relief on the Oregon whistleblower claim. The district court concluded that the lack of explicit mention of the Oregon-nexus defense did not prejudice the employee.

Coming to the point, Judge Bumatay concluded: “That doesn't seem wrong—Ivie hasn't proffered any additional evidence that she would have admitted at trial if she had more express notice of the extraterritorial defense. The district court's ruling then seems to fall within its discretion.”

Judge Bumatay also noted that, while the majority is right that the joint pretrial statement should not be amended after-the-fact if it would prejudice the plaintiff, the majority did not point to any prejudice here. And yet Astrazenica was deprived of a meritorious defense.

Judge Bumatay wonders: “So I'm not sure why *El-Hakem”—and its provision that a defense is preserved if the pretrial order makes any reference to it—*doesn't apply here.”

Takeaway: Pay close attention to the joint pretrial orders before a trial in federal district court. Local rules typically provide that any claims or defenses not mentioned will be deemed waived or forfeited.

But on the other hand, I would not count this result is typical. For every precedent supporting a forfeiture, there is a precedent supporting an exception. If you are going to argue forfeiture, be prepared to show how allowing the belated assertion would result in prejudice. That was not shown here, which makes the majority’s result surprising—and suggests Judge Bumatay is probably correct in his dissent.

Most findings in family court are left to the judge’s discretion. But not a custody order—at least, not once the judge has found that the parent has engaged in domestic violence. Even though the father’s only “domestic violence” was ringing up the mother’s employer, the court in Hutchins v. Hutchins (D4d1 Sept. 13, 2022 no. D078855) 2022 WL 4138735 (nonpub. opn.) held that the 50/50 custody order could not stand, because the family court failed to make written findings on the seven statutory factors. (Fam. Code, § 3044(b)(2).)

Here, the family court acknowledged the presumption, and concluded that it was “rebutted.” But this was not enough. The trial court must undertake two steps before concluding that the presumption of section 3044 has been overcome.

And the failure to make the findings was prejudicial error. But the court’s analysis on this point is underwhelming. And it seems to run afoul of the Supreme Court’s F.P. v. Monier holding from 2017 that missing findings are not structural error, and real prejudice has to be shown. On the record here, it appears the father easily could have rebutted all of the section 3044 factors.

On remand, I suspect the family court will simply make the missing findings to support to same 50/50 custody result.

Trial courts are required to make findings after certain proceedings. So is a court’s failure to make findings reversible error? A few years ago, the California Supreme Court answered No in F.P. v. Monier. Instead, to be reversible, the trial court’s failure to make findings must prejudice the appellant.

But the Fourth District held the opposite in a published opinion in Abdelqader v. Abraham (Mar. 10, 2022 D4d1) --- Cal.Rptr.3d ----. The trial court failed to make required findings, and on that basis, the Court of Appeal reversed. Although the respondent argued the error was harmless, the court disagreed. The court essentially concluded the failure to make findings was a structural defect — the precise argument the Supreme Court rejected in Monier.

Comment: While I strongly agree that litigants deserve reasons for a court’s decision, the court’s analysis in Abdelqader is unsatisfying. The court furnished no basis to distinguish the Supreme Court’s Monier holding. In fact, the court did not even mention Monier.

The Upshot: In any custody matter in which the presumption under Family Code section 3044 is triggered, look hard for any missing findings. Under Abdelqader, that defect is reversible per se.

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.