Appeals and Writs
| Publication year | 2020 |
| Author | By Paul Killion, Dean Bochner, Katy Graham, Greg Wolff, Jessica Barber, Matthew Scherb,Jocelyn Sperling, Julia Shear Kushner, David Williams, Benjamin Siminou, Glenn Danas, and Ryan Wu |
By Paul Killion, Dean Bochner, Katy Graham, Greg Wolff, Jessica Barber, Matthew Scherb,Jocelyn Sperling, Julia Shear Kushner, David Williams, Benjamin Siminou, Glenn Danas, and Ryan Wu
For the California Supreme Court, 2020 was a year of leadership in a time of crisis. At the onset of the COVID-19 pandemic, the Court swiftly pivoted to remote oral arguments, building on its early commitment to “Blue Jeans” technology. Chief Justice Cantil-Sakauye invoked constitutional1 and statutory2 powers to issue a series of emergency orders3 intended to protect the health and safety of court staff and the public, while protecting the due process rights of litigants. She cautioned that the 1,700 deaths suffered in California by April would “continue to rise unless the population adheres to shelter-in-place guidelines and appropriate social distancing.”4 By the end of December, California’s COVID-19 related death toll reached 26,000.5 When out- rage over racial injustice peaked in June, the Court issued a formal Statement on Equality and Inclusion in which each justice, and the Court as a whole, committed to answering the call for “a justice system that works fairly for everyone.”6 In July, the Court intervened to extend the statutory deadline for displaying, approving, and certifying redistricting maps due to COVID-19 census delays.7 In August, Justice Ming
W. Chin retired, and in December, Justice Martin J. Jenkins was sworn in as his replacement. The turmoil and changes in 2020 took a toll on productivity. The Court issued only 65 opinions in 2020, 31 of which were in civil cases.
In Conservatorship of O.B.,8 the Court made it easier to challenge on appeal decisions by juries and trial judges that require proof by clear and convincing evidence. The Court disapproved a line of cases (and a prominent treatise) that stated the clear and convincing evidence standard “disappears” during substantial evidence review.9
Appellate courts must now apply the clear and convincing standard of proof when considering a claim of insufficient evidence to support a finding made under the standard.10 Specifically, reviewing courts must ask “whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true.”11 As in any substantial evidence challenge, the appellate court will view the record in the light most favorable to the prevailing party and defer to the trier of fact’s evaluation of credibility, resolution of conflicts in the evidence, and reasonable inferences.12
California law requires proof by clear and convincing evidence in many other areas where important interests are at stake and the social costs of an erroneous determination are high.13 The O.B. decision has already been applied in the context of punitive damages claims14 and dependency cases.15 And the O.B. standard may impact other areas of the law, including elder abuse,16 contracts,17 employment,18 probate,19 property rights,20 and civil restraining orders,21 among others. How widespread that impact may be isn’t entirely clear because O.B. announces “only a general rule” and “different forms of appellate review may apply in certain circumstances.”22
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Disapproving a slew of Court of Appeal decisions, the California Supreme Court in K.J. v. Los Angeles Unified School District23 upheld the validity of a notice of appeal from an order imposing sanctions on an attorney despite the fact that the notice wrongly identified the attorney's client as the appealing party. The court held the notice of appeal must be liberally construed to include the sanctioned attorney if that intent was apparent and the respondent was not misled or prejudiced by the notice of appeal.24
After the first round of COVID-19 stay-at-home orders was issued, the Judicial Council and courts throughout the state acted to address the complex issues created by the pandemic. Rule 8.66 of the California Rules of Court, which governs deadlines during emergencies, was amended to clarify that it applies during a public health crisis. The rule already allowed the Judicial Council to extend deadlines in increments of up to 14 days, or to authorize courts themselves to extend deadlines in this fashion. The amendments allowed tolling, in addition to extensions, in increments of 30 days or less.25 The comment accompanying the amendments states that the rule permits extensions and tolling to rules governing finality in the Courts of Appeal and Supreme Court.
Although Rule 8.66 authorized statewide action by the Judicial Council, emergency orders were issued on a court-by-court basis.26 Individual courts also closed their doors and deemed those closed days to be holidays, further impacting filing deadlines.27 Because of this piecemeal response to the pandemic, filing deadlines differed from court to court and day to day as new orders issued.
Only a few appellate opinions from 2020 addressed
Rule 8.66 and related timeliness issues.28 In Rowan v. Kirkpatrick,29 the only published decision on the topic, the Court of Appeal dismissed an appeal that was filed one month late, despite all the extensions afforded by applicable superior court general orders. While the court expressed sympathy over the "unprecedented nature of the circumstances presented by the COVID-19 pandemic, and the hardships it may have caused," it noted the appellant had not claimed she was actually prevented from filing on time.30 However, the court left the door open to relief for other litigants that could show forces beyond their control thwarted their efforts to timely appeal.31
How to Know When It's Over—And Time to Appeal.In 1010, we were again reminded that it is sometimes difficult to determine whether an order is final and thus appealable. For example, an order may be final even if a subsequent order or judgment of dismissal seems more definitive. If that first order is indeed final and the time to appeal from that order has expired, the appeal is forfeited.
Anti-SLAPP. In Reyes v. Kruget32 and Marshall v. Webster,33 Courts of Appeal addressed the finality of orders granting anti-SLAPP motions, which are appealable under Code of Civil Procedure section 425.16, subdivision (i), and section 904.1, subdivision (a)(13). In both cases, the courts concluded that the appeals were untimely because they were taken not from the anti-SLAPP orders, but from a subsequent judgment of dismissal (in Reyes) or a subsequent order prepared by the defendant (in Marshall), both of which "had no effect" on the finality of the previously entered anti-SLAPP orders.34 Reyes explained that an anti-SLAPP order is final even if it does not address attorney fees, and a subsequent order or judgment addressing fees does not restart the time to appeal because it is not a "substantial modification" of the anti-SLAPP order.35
Class Actions. Addressing an issue of first impression, Fidelity National Home Warranty Company Cases36 held that orders of dismissal in a class or putative class action are not final if rendered before compliance with requirements governing dismissals of class actions. Before the trial court may dismiss a class action, class members must receive notice.37 In a putative class action, putative class members must receive notice or the court must find dismissal will not prejudice them.38 The Court of Appeal held that these requirements apply to both voluntary and involuntary dismissals.39 Because the involuntary dismissal orders in these cases were issued before these pre-dismissal requirements were satisfied, those orders were not final and the appeals from the subsequent judgments were therefore timely.40
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Cautionary Tales: That Motion Might Not Extend the Time to Appeal.Under rule 8.108 of the California Rules of Court, the time to appeal is extended if any party files and serves a "valid" motion for new trial, motion to vacate judgment, motion for judgment notwithstanding the verdict, or motion to reconsider an appealable order. Three recent cases address the "validity" requirement.41
In Rowan v. Kirkpatrick, the Court of Appeal held that a motion for reconsideration under Code of Civil Procedure section 1008, subdivision (a), was invalid because the motion was not filed within the statutory 10-day deadline.42 To the extent that the motion qualified as a renewed motion under section 1008, subdivision (b), it still did not trigger an extension under rule 8.108(e) because renewed motions under subdivision (b) are not listed in rule 8.108.43 Further, the motion was invalid under subdivision (b) because it did not include the required affidavit.44 As a result, the motion did not extend the time to appeal.
In Marshall v. Webster, the Court of Appeal held that a motion for reconsideration was invalid because it was filed after entry of judgment, when the trial court no longer had jurisdiction to decide the motion.45 Although no formal judgment had been entered, the court determined that the order granting an anti-SLAPP motion qualified as the judgment.46 The court added that if there were any doubt about the effect of the anti-SLAPP order, the trial court's entry of a dismissal in the docket made it clear that judgment had been entered.47
In Reyes v. Kruger, another anti-SLAPP case, the Court of Appeal held that a new trial motion was invalid because the notice of intention to move for a new trial was not filed within the 15-day deadline imposed by Code of Civil Procedure section 659.48 Although the notice of intention should have been filed within 15 days after notice of entry of the order granting the anti-SLAPP motion was served, it was not filed until after the subsequent "redundant" judgment of dismissal.49
In short...
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