Appeals and Writs

• Publication year: 2017
• Author: By Marsha Amin, Karli Eisenberg, Herb Fox, Paul Killion, and Greg Wolff

Appeals and Writs

By Marsha Amin, Karli Eisenberg, Herb Fox, Paul Killion, and Greg Wolff

This round-up contains four sections: it starts with a look at key decisions and developments in 2017 impacting California Supreme Court practice and procedure, then does the same for Court of Appeal practice and procedure, and concludes with sections covering writ practice at the Court of Appeal, in particular, and trial court procedures relevant to appeals.

California Supreme Court Practice and Procedure E-filing Has Arrived in the California Supreme Court

Mandatory e-filing for some cases and types of documents began in the California Supreme Court on September 1, 2017, using TrueFiling. The new rules require electronic filing of specified documents, including petitions for review, answers, and replies. However, unlike in the Court of Appeal, one "unbound paper copy" must also be submitted.

A Comment on a Comment

As noted in last year's round-up, there used to be a rule of court that automatically depublished a Court of Appeal decision if the Supreme Court granted review. In 2016, that rule was changed to provide that the Court of Appeal decision remained published when review was granted, but while the Supreme Court was considering the case, it had "no binding or precedential effect and could be cited for potentially persuasive value only."¹ The rule goes on to say: "After decision on review by the Supreme Court," the Court of Appeal decision "is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court."²

In September, 2017, the Comment to Rule 8.115(e) was amended to clarify what happens when the Supreme Court grants review but later dismisses review without deciding the case on the merits because, for example, the parties reach a settlement or the case otherwise becomes moot. The Comment to Rule 8.115(e) now explains that such an order of dismissal is a "decision on review." "For purposes of subdivision (e)(2) and (3), a 'decision on review' includes any order by the Supreme Court dismissing review. [Citations.] Accordingly, upon dismissal of review, any published Court of Appeal opinion regains binding or precedential effect under rule 8.1115(e)(2) unless the court orders otherwise under that rule's subdivision (e)(3)."

Changes in Death Penalty Rules and Procedure on the Horizon

While this review is focused on civil appellate practice, there is one development in the criminal arena that could potentially impact civil litigators because of the additional pressure it will pile upon the California Supreme Court. The California Supreme Court currently spends about a quarter of its resources on appeals and writs from capital cases. Judgments of death are appealed automatically to the Supreme Court, bypassing the Court of Appeal, and, as a matter of policy, writs of habeas corpus challenging a judgment of death may be filed initially in the Supreme Court.³ The time it takes to complete the appeal and initial state habeas proceedings typically is measured in decades, rather than years.

Two initiatives on the 2016 ballot sought to alter these practices. Proposition 62, which would have abolished the death penalty, was defeated, but Proposition 66, the measure to "Mend, Not End, the Death Penalty," passed. The proponents of Proposition 66 promised the initiative would require the appeal and state habeas corpus proceedings in capital cases to be completed within five years, but the Supreme Court held that this deadline "is directive only."⁴ The court upheld provisions requiring that, absent good cause, newly filed habeas petitions challenging a death judgment be heard by the superior court that rendered the judgment and permitting either party to appeal the superior court's ruling to the Court of Appeal.⁵

Proposition 66 requires that by spring 2019, the Judicial Council "shall adopt initial rules and standards of administration designed to expedite the processing of capital appeals and state habeas corpus review." As there are nearly 750 prisoners on death row, expediting their appeals could put tremendous pressure on the state high court. It remains to be seen how the new rules and standards will alter the way the Supreme Court handles its docket of both criminal and civil cases.

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Court of Appeal Practice and Procedure

Elder Abuse Appeals - Pedal-to-the-Metal

Effective January 1, 2017, the timeline for appeals involving orders dismissing or denying petitions to compel arbitration in elder abuse cases was substantially accelerated. Under Code of Civil Procedure section 1294.4, the entire appeal in such matters must be completed and the decision issued within 100 days from the filing of the notice of appeal. The implementing rules are contained in California Rules of Court, rules 8.710-8.717 effective July 1, 2017, and include such shortened procedures as notice of appeal due 20 days after notice of entry of order, a required appendix record, reporter's transcript due in 10 days, opening brief due 10 days after the notice of appeal, respondent's brief due 25 days later, a reply 15 days later, stipulated extensions only if they "promote the interests of justice," and oral argument on 10-day notice.

By appellate standards, this is lightning fast. The reader will note that this schedule means that the opening brief may be due before the reporter's transcript has even been filed. However, the rules do contain a provision that, in that event, you can file a revised brief with the record citations within 10 days of the certification of the reporter's transcript.

Spending Time on the Appellate Record Is Time Well Spent

In Rhule v. WaveFront Technology, Inc.,⁶ the appellant challenged an award of attorney fees but failed to include a reporter's transcript or an agreed or settled statement of the proceedings at the two pertinent trial court hearings.⁷ Consequently, the Court of Appeal did "not know the basis of the trial court's reasoning in awarding fees" and could not "assess the merits of plaintiff's contentions about certain rulings or statements made by the trial court during the hearings in question."⁸ The Court explained that it does "not presume error on appeal; rather, the opposite is true: we presume that the court's fees order is correct unless plaintiff demonstrates the trial court abused its discretion - which he has not."⁹ Rhule is a good reminder that sometimes getting the appellate record right is half the battle.

Time to Appeal an Administrative Decision

If you handle administrative mandamus actions brought pursuant to Code of Civil Procedure section 1094.5, then you are likely familiar with the common disposition wherein the superior court grants the petition and remands the matter for proceedings before the administrative body. In such a circumstance, the issuance of the writ (i.e. granting the petition), does not definitely resolve the dispute between the parties, but it does conclude the proceedings in the superior court.

The question posed to the California Supreme Court in Dhillon v. John Muir Health¹⁰ was whether such a decision is an appealable final judgment. The Court decided in the affirmative, holding that the superior court's order partially granting the writ petition was an appealable final judgment, thereby resolving a "long-standing" split among the Courts of Appeal.¹¹ The Court explained that because the trial court did not reserve jurisdiction to consider any issues, once it issued the writ, nothing remained to be done there (i.e., no issue was left for the court's consideration).¹² Thus, if petitioner could not immediately appeal, the superior court's decision would essentially evade review.¹³

Failure to Issue a Statement of Decision Is Not Reversible Per Se

Code of Civil Procedure section 632 states that "upon the trial of a question of fact by the court," the court "shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial."¹⁴ But what happens when a trial court fails to issue a statement of decision despite a timely request? The Supreme Court answered this question in F.P. v. Monier.¹⁵

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There, the plaintiff brought an action for sexual battery. Following a presentation of the evidence in a bench trial, the court issued a tentative decision finding that the defendant had committed the alleged acts and awarded damages.¹⁶ The court ordered plaintiff's counsel to prepare a judgment.¹⁷ That same day, the defendant timely requested a statement of decision setting forth the basis upon which the court was awarding damages.¹⁸ Subsequently, plaintiff's counsel submitted a proposed judgment to the court, which the court signed without issuing a separate statement of decision.¹⁹

On appeal, defendant argued that the trial court's failure to issue a statement of decision was reversible per se.²⁰ Defendant asserted that without the statement of decision, it was unknown whether the trial court had apportioned damages as required by law.²¹ On review, the California Supreme Court held that the trial court's error in failing to issue a statement of decision after a timely request is not reversible per se.²² As the Supreme Court explained, nothing in the language of section 632 "establishes a rule of automatic reversal, and nothing in the statute's legislative history suggests the Legislature intended the current statute to have that effect."²³

Although some of the Court's prior precedents may have suggested that automatic reversal was required, the Court noted that the decisions are not entirely "uniform," and, even if the Court's precedents were uniform, the Court "may not blindly endorse" such a rule "in order to preserve doctrinal stability" when doing so "would undermine the important and still-vital requirements and policies" of the harmless error doctrine under the California Constitution.²⁴ The...