What is an arguable issue on appeal?

 In People v. Hernandez (2014) ___, Cal.App.4^th ___, Justice Rylaarsdam wrote the opinion in a criminal appeal in which the Court previously appointed counsel to represent the defendant.  The attorney filed a Anders/Wende brief, in which the attorney indicated he could find no issues to argue on defendant’s behalf.  TheAnders/Wende brief is based on Anders v. California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436.

The Court published its opinion, reaffirming its long-standing rejection ofAnders/Wende briefs.  It stated: 

                 “Long ago, this court discredited the custom of raising ‘‘arguable-but-unmeritorious’ issue[s]’ in Anders/Wende appeals; yet this practice persists.  As Justice Gardner noted in People v. Johnson, supra, 123 Cal.App.3d 106, ‘In this case we reject a concept which has crept into our judicial literature – the ‘arguable-but-unmeritorious’ issue on appeal.  We hold that an arguable issue on appeal consists of two elements.  First, the issue must be one which, in counsel’s professional opinion, is meritorious.  That is not to say that the contention must necessarily achieve success.  Rather, it must have a reasonable potential for success.  Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.’”  

 (Opn., pgs. 3-4.) 

 Justice Gardner advocated jettisoning the concept of ‘arguable-but-unmeritorious’ issues, a position with which this Court agreed.  While the Court must review the record in such appeals, and must do so when the defendant personally files a brief raising certain issues, “But there is no such obligation with respect to counsel supplied so-called ‘arguable-but-unmeritorious’ issues.”  (Opn., pg. 4.)  As a result, “An attorney who cannot discover an arguable issue thus secures an appellate review of the record which is not necessarily enjoyed by his more feisty counterpart who raises one or two frivolous issues, easily disposed of by the inspection of a few pages of transcripts.”  (Opn., p. 4; citing People v. McGee I1978) 82 Cal.App.3d 127, 129.) 

 One of the tasks of an appellate attorney is to select the issues on appeal.  Selecting three or four grounds for appeal is best.  At times, an appellate attorney may drop weaker grounds, fearful that their inclusion will bring down the credibility of the appellant’s position.  If a brief includes a laundry list of errors, numbering over five, the Court of Appeal may wonder whether so many errors could be committed in one hearing.  If an civil appellate attorney cannot find any issues for appeal, the attorney simply notifies the client and may even refuse to take the appeal.  Court-appointed criminal appellate attorneys face a different challenge.  What do they do if they cannot find an arguable issue on appeal?  As pointed out by Justice Rylaarsdam, filing a brief in which the attorney discusses the case and indicates he or she cannot find any issues to argue on the defendant’s behalf, is not acceptable.

A nice review on An Appeal to Reason

Fellow appellate attorney Mary-Christine (or affectionately known as M.C.) Sungaila posted a very nice book review of An Appeal to Reason, on http://socal-appellate.blogspot.com/2011/09/introducing-guest-bloggers.html

I do appreciate her recommendation to pick up my book, along with a few others, for your summer reading but I am not sure I would ask anyone to go that far.  I am a big advocate of balance in one's life and find that far too many attorneys are working almost round the clock.  The new social media does not make it any easier because we attorneys are now so accessible.  I have even read about the lack of sleep and insomnia experienced by attorneys who cannot "shut off their minds" at the end of the night.  I would much rather take advantage of a well-rested attorney who can then learn some valuable pointers from my book.  Read it first thing in the morning over a steaming cup of coffee (skip the donut, please!) or maybe at the end of the day.  But for summer reading at the beach?  My advice is to put the book down, jump into our California surf and play with your children or loved ones.  

A few new appellate decisions before Labor Day

The appellate world has been rather busy lately.  Consider the following:

      In Stinnett v. Tam, 2011 Cal.App. LEXIS 1153, the Fifth Appellate District, the plaintiff challenged the MICRA statute in Civil Code 3333.2, which limits "non-economic" damages to $250,000 in any action against a health care provider based on professional negligence.  The court reduced a $6 million non-economic damage award.  The plaintiff argued the reduction violated her right to equal protection, as well as her right to a jury trial.  The court found these arguments to be without merit and affirmed the judgment.

      Okay, I couldn't resist In re Forchion, 2011 Cal.App. LEXIS 1144, in which the Second Appellate District was presented with the issue of whether an individual can change his name to the name of his web site, including the .com.  The petitioner, Robert Edward Forchion, Jr., who manages a Rastafarian temple in Los Angeles and operates a medical marijuana dispensary, wanted to change his name, consistent with his national reputation, to NJWeedman.com.  He first tried to change his name in New Jersey, but that state said no.  The court noted that a name change could last indefinitely, but petitioner might lose his domain name for various reasons.  If someone obtained that domain name later, then petitioner's personal name might result in confusion.  I'll bet that is the first time a name change has been denied for a business reason.  The court stated, "In sum, personal names and domain names should not overlap; they belong in distinct realms.  Domain names were created for use on the Internet and should be limtied to assisting a user in finding a desired Web site.  By the same token, we should not treat a peson as part of a domain."  The court also indicated that a name change to NJWeedman, without the .com, would meet the same result.

     In Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, a case that has been litigated and appealed on several occasions, the parties were back in court after a jury awarded the plaintiff $13.8 million in punitive damages.  A jury had previously awarded $850,000 in compensatory damages.  The court upheld the punitive damage award based on Philip Morris's conduct in intentionally deceiving the public for several decades concerning the adverse health effects of cigarettes, formulating them to make the cigarettes more addictive, and aggressively advertising to youths.  The award is approximately 16 times the compensatory award and was not considered constitutionally excessive.  This case will probably give plaintiff's attorneys some hope that not all courts are moving toward a 1:1 ratio with compensatory damages.

       In Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, 2011 Cal.App. LEXIS 1117,  the plaintiff sued over the proposed approval of a new shopping center.  While the appeal was pending, the project was abandoned and the appeal became moot.  In considering whether to abandon the appeal, the court of appeal held a dismissal of an appeal constitutes an affirmance of the lower court's ruling.  Maybe not such a good idea as the judgment could have an effect on future litigaiton.  The better solution was to reverse based on mootness, with directions to the trial court to dismiss the complaint.

That's enough for now.  Time to start the Labor Day Weekend.  Enjoy!

Appealing from a summary judgment

Sometimes you just have to pursue a petition for writ of mandate to get a judge to do his or her job.  InDavis v. Superior Court (2011) 196 Cal.App.4th 669, the plaintiff filed a petition for a writ of mandate directing the trial court to enter its final judgment so that the petitioner could appeal.  The petitioner had filed an employment discrimination complaint against the City of Los Angeles, who then moved for summary judgment.  The trial court issued a minute order that tentatively granted the motion, and then set forth an order granting summary judgment, which was served on all parties and labeled as “Notice of Entry of Order.”  The Minute Order included a written ruling, entitled “Order Granting Summary Judgment,” which set forth the trial judge’s order and included a single, underlined sentence, “Judgment is therefore entered in favor of Defendant and against Plaintiff on all causes of action in the complaint.”  (Id. at p. 671.)

Three weeks later, the City filed and served a proposed judgment and a memorandum of costs.  The trial court did not act on the proposed judgment.  The docket showed entry of an order granting summary judgment, but no entry of judgment or notice of entry of judgment.

One year later, the petitioner moved for entry of judgment.  The trial court denied the motion, claiming its order entering summary judgment with the one-line reference to a judgment was sufficient.  The court even noted that in the future it might title the document differently, but it was not about to do so in this case.

The first point is one that is important to remember:  parties do not appeal from an order granting summary judgment.  (Saben, Earlix & Associates v. Fillet (2005) 143 Cal.App.4th 1024, 1030.)  They must appeal from a summary judgment after entry of judgment.  (Code Civ. Proc., sec. 437c(m)(1).)  Of course, this point was very important to the petitioner.  If no judgment had been properly entered, the time would not start for an appeal, but if the document was construed as a judgment, petitioner was out of time.  The trial court deemed its order as a judgment and would not enter a second judgment in the same case.  The City also argued that one should look at the effect of the written ruling, and not its form, pointing to the sentence that provided judgment had been entered.  (If the City wanted to take that position, then why did it file a proposed judgment?)

The appellate court concluded:  “Here, in contrast, construing the trial court’s language as its judgment when it was styled as an order extinguishes the right to appeal.  Consistent with the importance of the right to appeal, we conclude that denying [petitioner] his appellate rights requires more than an ‘order’ (the court’s own title for its ruling) dressed-up to masquerade as a ‘judgment.’”  (Id. at p. 674.)

When I am asking about filing a notice of appeal from the granting of a motion for summary judgment, I request copies of the notice of ruling, order, minute order, judgment, and notice of entry of judgment.  Sometimes the difference is not entirely clear, such as here where an order also appears to contain language that resembles a judgment.  I have seen situations where the order and judgment are combined and caution attorneys to carefully read these documents.  The petitioner in this case might have simply appealed from the order/judgment, and the document could be construed as a final judgment.  But instead, the petitioner waited a year, attacked the order, and now has gained the right to appeal.  That approach, while it worked in Davis, was much more costly and even chancy, but losing a good appeal because you are too late can be very costly as well.