DRI Appellate Advocacy Seminar

If you want to learn about appellate law from some of the pros while enjoying the beauty of La Jolla, consider the DRI Appellate Advocacy Seminar, which will be held on November 5-6, 2009 at the Hilton La Jolla Torrey Pines.  Unlike seminars that only feature local talent, this two-day program calls on some top lawyers, justices, and judges from around the country to share their wisdom.  It touches on issues involving both the state and federal systems.  I think it is a great way to meet others who are involved in appellate law and to compare ideas.  While I could list some of the seminars, I am going to direct you to "the (new) legal writer," which includes links for the brochure and bios for the panel of speakers. Here's the link.

When do you file your notice of appeal?

In Bi-Coastal Payroll Services, Inc. v. California Insurance Guarantee Association (2009) 174 Cal.App.4th 579, the Second Appellate District, Division Five, held that the plaintiffs' duty to file the notice of appeal arose from service of notice of entry of judgment, and not service of the trial court's earlier minute order.

In Bi-Coastal,  the plaintiff voluntarily dismissed a cause of action after the trial court sustained a demurrer without leave to amend as to several other causes of action. The parties then stipulated to entry of judgment, which was accepted by the trial court in a minute order, which also ordered entry of judgment.  The minute order was served on the parties by the clerk.  Plaintiffs then gave formal notice of entry of the judgment and filed a notice of appeal.

The operative rule in this situation is California Rules of Court, Rule 8.104(a), which sets forth the dates for filing a notice of appeal.  Generally, a party has 180 days after entry of judgment; however, that period of time can be cut down to 60 days after either a party or the clerk serves notice of entry of judgment.  That notice can be in the form of a document entitled "Notice of Entry" of judgment or it can be accomplished by serving a file-stamped copy of the judgment, which isn't required to have any language that notice of entry of judgment is intended.

The minute order mailed out by the clerk in Bi-Coastal was not entitled "Notice of Entry" of judgment but rather, "Court Order re:  Stipulated Judgment."  Nor did the minute order give notice of entry of judgment because it was not file-stamped as required by Rule 8.104(a)(1).  The fact the minute order contained language of "notice of entry of order" was not sufficient because the minute order had a different title and expressly required plaintiffs' attorney to give notice.

The court quoted language, stating, "'Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.'"  (Id. at p. 586.)  I wish it were that easy.  Attorneys frequently call to seek help in calculating when the notice of appeal must be filed.  It's not always clear and all relevant documents should be examined.  For instance, some orders are simply orders while others are orders combined with judgments.  Some minute orders appear complete while others require the preparation of formal orders.  A party may prepare a document entitled a "Notice of Entry of Judgment," which seems self-explanatory but the service of a file-stamped judgment can serve the same purpose without indicating its intent.  All can have an impact on the date the notice of appeal is due.

Of course, the easiest advice is to tell the appealing party's attorney to take the earliest date and file the notice of appeal within 60 days of that date.  A party can never be late in that instance.   In any case, the due date for the notice should be calculated immediately and California Rules of Court, rules 8.104 and 8.108 should be carefully examined to ensure compliance.

Congratulations on a big win!

One of my clients, Marlon Alo, recently won a reversal on appeal after a jury trial in a published decision, Diaz v. Los Angeles County Metropolitan Transportation Authority, 2009 WL 2138976.  Alo represented the plaintiff, a 79-year-old female, who was injured when an MTA bus in which she was a passenger collided with the car in front of it.  The court of appeal held that because MTA is a common carrier and substantial evidence supported the argument that plaintiff was injured due to the bus driver's negligence, the trial court erred in refusing to give a res ipsa loquitur instruction.  Had the instruction been given, the burden of proof would have shifted to MTA and its driver to demonstrate they were not negligent.

The appellant argued lack of substantial evidence, instructional error, and error re the admission of evidence.  If you read my earlier posts, you know that substantial evidence is not a great standard of review for an appellant, but an error based on instructional error puts the appellant in a better position.  As noted by the appellate court, it is required to "review the record in the light most favorable to the party proposing the instruction to determine whether there was substantial evidence warranting the instruction."  (Opn., pg. 3, fn. 3.)

The reviewing court also noted that res ipsa loquitur has frequently been applied in common carrier cases where a passenger is injured, even when a third party driver is involved.  I've also worked on cases when the doctrine has been applied successfully in medical malpractice and fire cases.

Because of the court's finding on the instructional error, it declined to reach the other issues raised on appeal, and remanded the case to the trial court for further proceedings.  Great job, Marlon!

What does the term "valid" mean?

In Branner v. Regents of the University of California, 2009 WL 2026326, the Yolo County Superior Court granted in part and denied in part an anti-SLAPP motion.  The order was immediately appealable but the plaintiff chose to file a motion for reconsideration.  Not only did the plaintiff file an appeal from an order on the anti-SLAPP motion, but he filed one as well from the denial of the motion for reconsideration.  Defendant Regents filed a cross-appeal from that part of the order denying the anti-SLAPP motion.

Defendant Regents brought a motion to dismiss the appeal from the anti-SLAPP motion, claiming the motion for reconsideration was invalid because it was not supported by an affidavit or declaration of counsel.   Plaintiff's attorney failed to include a declaration with the motion, but added it to his reply, simply stating he did not believe the Regents would be prejudiced by the late filing of the declaration.

As to the extension of time to appeal as the result of filing a motion to reconsider, California Rules of Court, rule 8.108(e) requires that the motion be "valid."  While rule 8.108 does not define the term "valid," the court interpreted it to mean "only that the motion or notice complies with all procedural requirements; it does not mean that the motion or notice must also be substantively meritorious."  (Opn., pg. 5.)  A motion for reconsideration brought pursuant to Code Civ. Proc. section 1008(a) must include a declaration or affidavit that states certain facts.  The  declaration eventually submitted with the reply failed to satisfy this requirement.    Thus, the motion was invalid because it failed to comply with statutory procedural requirements.

It didn't help plaintiff that a declaration was submitted after the motion was filed, the appellate court rejecting the "piecemeal filing of a motion."  (Opn., pg. 7.)  The language was especially colorful:

"A straightforward reading of this language [in CRC rule 8.108(e)] suggests that a single, complete, valid motion must be filed -- not one that is later assembled from constituent parts like some Frankenstein monster."

(Ibid.) To allow a piecemeal filing the court noted would "undermine the jurisdictional nature of the appellate time period by permitting the extension of that period based on the mistake or inadvertence of counsel." (Opn., pg. 8.)  Thus, the motion must be valid when it is initially filed.

But the fun never stops.  Because plaintiff's first notice of appeal was untimely, that meant that the Regents cross-appeal was also untimely under CRC, rule 8.104(a) [the time period for filing a cross-appeal is extended by a timely notice of appeal].

That left the court with plaintiff's second appeal from the denial of a motion for reconsideration.  First, and it bears repeating here, the court noted that a motion to reconsider is not valid if it is filed after the final judgment is signed.  (Opn., pg. 6.)  Too many attorneys have ignored this rule.  But the court noted inconsistent authority as to whether the denial of a motion for reconsideration is appealable.  The prevailing view, one to which the court subscribed, was that a motion for reconsideration is not appealable.  (Opn., 10.)

Since the original order was to deny the anti-SLAPP motion in part, then perhaps the plaintiff had a few causes of action left to litigate.

Is legal blogging over?

In a recent post on Law.com Legal Blog Watch, blogger Elefant asks about "The Demise of the Legal Blogsophere."  She refers to another blogger, Mike Cernovich, who believes the blogosphere is overrun by "shallow marketing and exclusive cliques."  While I am always on the lookout for a great appeal, you won't find any "shallow" marketing here; my marketing plan is much more elaborate.

These bloggers have noticed changes in blogging over the years.  I agree.  Several years ago I attended a State Bar Convention and one of the speakers asked how many people had blogs or even searched blogs.  Only a few people out of hundreds raised their hands.  I was not one of them.

I think lawyers generally are behind the times when it comes to marketing, but one thing we seem to instinctively understand, and that's competition.  If one attorney comes up with an inventive marketing plan, then we are all for it.  We don't like being left out.

I started my blog for primarily two reasons:  (1) as an appellate attorney I had observed trial attorneys making the same mistakes over and over again, and those mistakes jeopardized the clients' chances on appeal, and (2) I was (and am) working on a book that tries to summarize my advice to trial lawyers.   I tried to balance my blog entries between giving solid advice and writing about the lighter side of appellate cases.  When I finish my book, perhaps I will just write about humor and the law.

I have been blogging for a short period of time but I have noticed that the field is becoming inundated with experts and expert wannabees.  Frankly, I can't read every blog, no matter how much I want to.  I like to see the sun outside.   There are blogs that are simply marketing tools and I shy away from those.  On the other hand, I am not one to read about an attorney's most recent ski trip or daughter's birthday party.  Sorry but that's just me.

As much as I try to stay on top of new ideas, including social networks, my profiles remain unfinished (at least I started) and I have yet to follow anyone on Twitter.  I am not particularly excited about the posts I read on Facebook and other networks.  Perhaps I am following the wrong people.

In any case, I am going to keep blogging away, at least until I finish my book.  If I seem like I am living in a shell, you may be right.  Occasionally, however, I do find some blogs very interesting - I am rather fond of Law.com Legal Blog Watch - and have to admit that the Internet is an amazing tool.