Appeals are about real people

Going through recent appellate decisions is something that I do on a daily basis.  Sometimes I am looking to see if a decision might have some application to an issue I am working on.  Other times I am looking for tips and warnings that I can pass on to others so they might avoid pitfalls in pursuing an appeal.  Once in a while I might stumble on a case that is interesting for other reasons. 

When I first started reading Kincaid v. Kincaid, 2011 Cal.App. LEXIS 800, I have to admit I was stunned.  The facts were enough to sadden me.  The appellant is the mother of a young woman, Shannon, who committed suicide by jumping off the roof of her mother's apartment complex.  Shannon was 11 years old when the appellant married Jeffrey Kincaid.  The appellant alleged that shortly after their marriage, respondent began torturing, molesting and raping the young girl.  The opinion described some of these acts, and noted that respondent threatened Shannon if she told anyone about his actions.  As a result, Shannon developed severe emotional problems and became dependent on alcohol and drugs.  After she received psychiatric help, a report was made to law enforcement.  Ultimately, the prosecution did not go forward with a criminal case due to insufficient evidence.  Several years later, Shannon committed suicide.

Mrs. Kincaid filed a wrongful death action, alleging that respondent's behavior was a substantial factor in causing her daughter's suicide.   The trial court granted respondent's motion for summary judgment, but the appellate court reversed the judgment, finding the trial court erred in refusing to admit a transcript of a recorded telephone conversation between the parties in which appellant confronted respondent.  This conversation, had it been admitted, would have created a triable issue as to whether the acts occurred.

This case stayed with me well after I finished reading the opinion.  I am not reporting on the law of the case.  The point that I wanted to make is that while appeals may deal with "judicial error" at the lower court level, the cases are still about people.  Yes, we can make them about the law, but we are missing an important ingredient if we overlook the story behind the appeal.  When dealing with clients, an attorney must be mindful of the story, because the appellant's motivation in pursuing a wrongful death action for the loss of her daughter may mean more to her than just obtaining an award of damages.  And respondent's fight to avoid a finding of liability may also mean more to him than just paying damages.  Motivation is also an important consideration.  But when you are presenting a client's story to the appellate court, remember that you are dealing with real people and try to write your briefs in a way that brings that story alive.  No matter how painful that might be.

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.