An Appealable Discovery Order

Most parties faced with an adverse discovery ruling have to grin and bear it.  Discovery orders are not generally appealable, and a writ petition is such a longshot that unless the ruling threatens a trade secret or similarly sensitive confidential information, the writ petition hardly seems worthwhile.  In H.B. Fuller Co. v Doe, case no. H030099 (May 31, 2007), California’s Sixth District Court of Appeal reminds us of a rare occasion when a discovery order is appealable. 

Doe sought to quash a subpoena directed to an internet company.  The subpoena sought information that would identify the person (Doe) who posted Fuller’s confidential company information on internet message boards.  No lawsuit was pending in California, and Doe’s identity was apparently necessary before Fuller could commence suit in its home state of Minnesota.

In a decision limited to Doe’s motion to unseal the record and briefs on appeal, the court first addressed the issue of appealability.  It found this discovery order was appealable because “the order is ancillary to litigation in another jurisdiction and operates as the last word by a California trial court on the matters at issue.”  Thus, even though the court could readily have chosen to construe the appeal as a writ petition, it found it unnecessary to do so.

This is a great case to remember.  Dire circumstances justifying writ review won’t always be present when a client gets hit with an unfavorable discovery order arising from litigation in another jurisdiction.  Being able to appeal greatly expands the cases in which review may be invoked.

Appellate Jurisdiction: Order Denying Motion to Vacate

An order denying a motion to vacate usually isn’t appealable unless the motion is a statutory motion under Code of Civil Procedure section 663.  But in Carr v. Kamins, case no. B191247 (May 31, 2007), the California Court of Appeal reminds us of an exception.

The plaintiff in this adverse possession suit served the defendants by publication, after which default and default judgment were entered.  Four years later, one of the defendants later moved to vacate the default judgment on the ground that plaintiff committed fraud in procuring the order for service by publication and that the default judgment was obtained in violation of her right to due process.  The trial court denied the motion, and defendant appealed.

The court rejected the plaintiff’s contention that the order was not appealable.  The reason: the order gave effect to a void judgment, and any order doing so is itself void and appealable as a special order after judgment under Code of Civil Procedure section 904.1, subd. (a)(2), even if no appeal is taken from the underlying judgment.

Liberalized Standards for Publication of Appellate Opinions

Professor Martin jokingly pleaded with the Ninth Circuit and California Court of Appeal to “slow down last” week.  The California Court of Appeal issued 32 decisions in a 3-day span starting on May 29.

I know Professor Martin was reacting to a rather short-term spike, but could it be that the liberalized rule for publication, which only recently went into effect, is starting to show results?

Since April 1, 2007, publication of appellate opinions has been subject to more liberal standards of publication under rule 8.1105(c).  The changes are summarized by the advisory committee at p. 57 of its report.  They:

(a) Replace the presumption against publication with a presumption in favor of publication if the opinion meets one or more of the criteria specified in the rule;

(b) Clarify and expand the criteria that the Courts of Appeal and the appellate divisions of the superior courts should consider when deciding whether to certify an opinion for publication; and

(c)  Identify factors that should not be considered in deciding whether to certify an opinion for publication.

A press release from the Supreme Court last December also summarizes the changes and provides a comparison of the old and new rule, and quotes from the report in stating that the changes should:

clarify the criteria for publication for both justices and attorneys, better ensure the publication of all those opinions that may assist in the reasoned and orderly development of the law, and improve public confidence in the publication process.

Whether a recent spike in opinions reflects these changes or not, we should certainly see an increase in the percentage of published opinions over time.

Anti-SLAPP Attorney Fee and Costs Application is Timely any Time Prior to Final Judgment

In Carpenter v. Jack in the Box Corp., case no. B188707 (May 25, 2007) the Second District Court of Appeal holds that an application for anti-SLAPP attorney fees and costs under Code of Civil Procedure section 425.16(c) by a plaintiff who prevails against an anti-SLAPP motion is timely so long as it is made before entry of final judgment in the action, even if it s not made until after resolution of the appeal of the order denying the anti-SLAPP motion.

Carpenter brought an action for wrongful termination, defamation, and other tort and contract claims related to the termination of employment by Jack in the Box.  Jack in the Box brought an anti-SLAPP motion (special motion to strike) under Code of Civil Procedure section 425.16, claiming that plaintiff’s claims targeted Jack in the Box’s actions in the course of an investigation into allegations that plaintiff had sexually harassed another employee and that such actions were protected under the First Amendment.  The trial court denied the special motion to strike, and the Court of Appeal affirmed.

After remittitur to the trial court, plaintiff filed his application for fees and costs under section 425.16(c).  The court held that the trial court did not lose jurisidction over the aplication simply because the remittitur of the case after the denial of the anti-SLAPP motion did not include instructions to determine attorney fees and costs.  The trial court retains jurisdiction to decide a motion for fees and costs even while the appeal is pending, and a statute authorizing an award of attorney fees in the trial court includes appellate fees unless the statute explicitly states otherwise.

Finding jurisdiction, the court next turned to the issue of whether the application was timely under rules 3.1702 and 8.104 of the California Rules of Court.  After a rigorous and complicated analysis of the rules to resolve a facial ambiguity, the court concludes that an application for fees under section 425.16(c) is timely so long as it is brought any time before final judgment in the action.

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Emotional Distress Damages for Statutory Habitability Action

In McNairy v. C. K. Realty, case no. B178918 (May 22, 2007), the Second District Court of Appeal holds that tenants may recover emotional distress damages in an action under Civil Code section 1942.4 against their landlord for breach of statutory habitability standards. Reasoning that the term “actual damages” in the statute (since amended, but still allowing for “actual damages”) has a plain meaning that includes emotional distress damages, the court rejects the landlord’s contention that emotional distress damages in such actions will lead to windfall recoveries. The statute requires severe and prolonged habitability problems, which naturally lead to inconvenience:

Generally, the residential tenant who has suffered a breach of the warranty does not lose money. He instead cannot bathe as frequently as he would like or at all if there is inadequate hot water; he must worry about rodents harassing his children or spreading disease if the premises are infested; or he must avoid certain rooms or worry about catching a cold if there is inadequate weather protection or heat. Thus discomfort and annoyance are the common injuries caused by each breach and hence the true nature of the general damages the tenant is claiming. (Quotation marks and citation omitted.)

The court notes other states had construed similar statutes to include emotional distress damages, and that other “actual damages” provisions in the California codes had been construed to include emotional distress damages. Finally, because the damages were awarded on a statutory cause of action rather than an action for breach of the lease contract, the award of emotional distress damages was not an impermissible award of tort damages in a contract action.

Settled Statements, New Trials, and the Languishing Criminal Defendant

When a reporter’s transcript of proceedings is unavailable for appeal, the appeal may proceed by way of a “settled statement.” California Rules of Court, rule 8.130(g). Some pitfalls of this procedure are revealed in People v. Cervantes, no. B183412 (May 16, 2007).

On Cervantes’s first appeal, the court reporter advised that a technical malfunction prevented her from transcribing the testimony of the sole prosecution witness. Nearly a year after his conviction, Cervantes moved for summary reversal and a retrial based on the absence of the transcript. The Court of Appeal denied the motion but remanded for the trial court to determine if a settled statement could be obtained.

At the hearing on the settled statement, held more than a year after conviction, the trial judge admitted having no recollection of the trial proceedings. The proffered settled statement was prepared almost entirely by the prosecutor with only nominal participation from appellate defense counsel, who had not participated at trial. Cervantes’ trial counsel had no input at all. He was deemed unavailable when appellate counsel told the court that he had left the public defender’s office. The trial court approved the settled statement.

It turned out that Cervantes’s trial counsel remained practicing in town after leaving the public defender’s office. The Court of Appeal, noting that Cervantes will be entitled to a new trial if a settled statement cannot be approved, remanded for a determination of whether a settled statement could now be prepared with the assistance of his newly located trial counsel.

Net result: More than two years after his conviction, Cervantes still doesn’t know if he will be appealing on the basis of a settled statement or will instead be entitled to a new trial.

Lessons for trial lawyers: The Court of Appeal will not grant new trials on the basis of unavailability of transcripts until efforts at procuring a settled statement are thoroughly exhausted. Determine the availability of your trial transcript immediately and keep track of persons important to the preparation of a settled statement — just in case. It turned out in this case that although Cervantes’s trial counsel had left the public defender’s office, he was still practicing locally — a little effort could have saved a lot of time.

As a side note, the unanimous opinion from our local division of the Second District Court of Appeal contains this gem of writing in the introduction:

“The trial judge has no recollection of the trial proceedings. Yet, he approves a settled statement. This is unsettling.”

That’s the kind of writing that keeps opinions from being boring, yet maintains the seriousness of the subject (unlike, in my view, this opinion). I wish I could write similar remarks. But such writing from an appellate justice is almost universally appreciated, while an attorney submitting a brief has to worry about insulting the seriousness of the court. If I really want to scratch that itch, I should work on getting appointed to the bench.

Thanks to The Electric Lawyer.

Helmetless Motorcyclist Equals Broken Taillight . . . Sort of

I remember my motorcycling days fondly, and riding without a helmet was one of the greatest sensations of physical freedom I ever felt. Right up there with skydiving — maybe better. But I also think I was crazy to ride without a helmet. (I still think the skydiving made perfect sense.)

Richard Quigley probably doesn’t think I was crazy.  He was cited nine times for riding his motorcycle without a helmet and contended that law enforcement officers were required to issue him “fix-it” tickets instead of regular citations because his lack of a helmet was an “infraction involving equipment” that required such treatment.  In Department of the California Highway Patrol v. Superior Court, case no. H029406 (May 17, 2007), the Sixth District Court of Appeal holds that riding without a helmet is indeed a “correctable” violation subject to a fix-it ticket, but also holds that the officers had discretion to cite Quigley in this case because of they could have reasonably concluded that Quigley’s helmetless operation of his motorcycle met the statutory exception of an “immediate safety hazard” — an immediate danger to Quigley, that is.

Which leaves open the possibility that an officer could decide to issue only a fix-it ticket if the rider agreed to leave his motorcycle parked until he could retrieve and put on a helmet.  In that case, there would be no immediate safety hazard.  The hazard passed when the rider stopped the bike.

Hypothetically, one might even run across an officer that doesn’t find helmetless riding to be such a safety hazard that more than a fix-it ticket is required.  But I suspect any officer that feels that way isn’t likely to pull over a helmetless rider in the first place. Mr. Quigley, I wish you good luck finding those officers.

I expect the legislature will move on this issue.