Appeals and Writs

• Publication year: 2022
• Author: Josh Patashnik

APPEALS AND WRITS

AUTHORS^*

Josh Patashnik

Dean Bochner

Glenn Danas

Katy Graham

Jonathan Grossman

Matthew Scherb

Ben Siminou

Jocelyn Sperling

Ryan Wu

CALIFORNIA SUPREME COURT

In November, the California Supreme Court returned to in-person oral argument after more than two and half years of remote argument during the COVID-19 pandemic. Counsel may still appear remotely if they choose, but under a new order all counsel must file an appearance form within seven calendar days after the case is set for argument, indicating their preference and identifying counsel who will argue.¹

2022 also saw several personnel changes at the court. Justice Patricia Guerrero was sworn in as an associate justice in March, becoming the court's first Latina member. Chief Justice Tani Cantil-Sakauye announced in July that she would not seek re-election on the November ballot. Governor Newsom then nominated Justice Guerrero as the new Chief Justice, and she took up the position on January 2, 2023, following gubernatorial nomination, confirmation, and voter approval. Alameda Superior Court Judge Kelli Evans has been confirmed and sworn in to fill Justice Guerrero's associate justice seat Justice Evans becomes the second openly gay member of the court.

The court issued 49 opinions and received 3,294 petitions for review in the September 2021-August 2022 court year. The court launched a new website in 2022 with improved accessibility and archives of oral arguments and related briefs organized by year.²

DEFAULTING PARTY CAN PRESERVE APPEAL WITH MOTION FOR NEW TRIAL

In Siry Investment, L.P. v. Farkhondehpour, the court clarified a defaulting defendant's appellate options.³ The defaulting defendant may appeal on three limited grounds, namely that a damages award: (1) is so disproportionate to the evidence as to suggest that the verdict was the result of passion, prejudice or corruption; (2) is so out of proportion to the evidence that it shocks the conscience of the appellate court; or (3) is contrary to law.⁴

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But before appealing, the defaulting defendant must raise one or more of these three grounds in a motion for new trial as "errors of law," pursuant to Code of Civil Procedure section 657, subdivision 7.⁵ The court disapproved older cases that held a defaulting defendant is "out of court" and may not move for a new trial.⁶ Thus, appellate counsel who is contacted by a defaulting defendant should coordinate with trial counsel to ensure that a timely motion for new trial, based on one or more of the three permissible grounds, precedes any notice of appeal.

CURBING APPELLATE FACT-FINDING AND POLICY-MAKING

In several cases, the court admonished appellate panels for second-guessing jury findings or for taking their own policy determinations into account, rather than deferring to the legislature's.

For example, in People v. Hendrix, the court emphasized that the appellate court's personal beliefs are not to be considered when it conducts a prejudicial error analysis.⁷ The appellate court should "focus on whether the error affected the outcome" in light of the error's "likely effect on the jury's consideration of [the] facts," not on the court's "own view of the facts" or the court's overall sense of whether the result was correct.⁸

Likewise, in Hoffman v. Young, the court reversed a decision in which the Court of Appeal had relied on its own beliefs about what is reasonable, as well as "a modicum of common sense," to conclude that a teenage son's invitation operated as an express invitation by his landowner parents for purposes of the recreational immunity exception.⁹ The Court of Appeal had opined that "it is reasonable to say" that children living with their parents have permission to invite their friends onto the property.¹⁰ The California Supreme Court called for a more rigorous agency analysis regarding "whether the circumstances establish that a parent has authorized the child to issue an invitation on the parent's behalf, such that the child's invitation strips the landowner of immunity."¹¹

Another example is Sheen v. Wells Fargo Bank, N.A., in which the court faulted the Court of Appeal for engaging in policy determinations better left to the legislature.¹² The Supreme Court reversed a decision that would have imposed a duty on lenders to exercise due care in processing, reviewing and responding to loan modification applications.¹³ The court was "unpersuaded that such a remedy should be created by judicial fiat."¹⁴ The court acknowledged that it had the power to announce a duty, because the expanding consumer laws in the mortgage service industry "do not occupy the field and preclude us from acting."¹⁵ But it declined to "tak[e] action merely because we may."¹⁶ Imposition of a duty would involve "policy choices that the judiciary is poorly positioned to make," whereas the legislature has "superior access to information about the social costs and benefits of each policy."¹⁷

PRESERVING AN ISSUE FOR APPELLATE REVIEW

The Supreme Court in several instances declined to consider issues that were not properly preserved in the trial court or briefed in the appellate courts. In Lopez v. Ledesma, the court granted review on two issues, but "[o]n closer examination, decline[d] to consider [the second] issue, which was neither raised in the trial court nor timely raised in the Court of Appeal."¹⁸ Appellant's argument for the second issue was raised for the first time in a rehearing petition and some aspects of the claim were not raised until the petition for review in the Supreme Court.¹⁹

The court also declined to address an issue that was not properly briefed in Presbyterian Camp & Conference Centers, Inc. v. Superior Court.²⁰ A wildfire started on petitioner's property. The state spent $12 million suppressing and investigating the fire. It determined the fire was started when petitioner's employee removed a smoldering log from a malfunctioning fireplace in one of its cabins.²¹ The Supreme Court granted review to determine whether a corporation could be vicariously liable for the cost of suppressing fires that its agents or employees negligently or unlawfully set or allowed to escape. However, its "holding answer[ed] a narrower question than the one originally

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presented" because "the parties focused their briefing on" only one type of vicarious liability (respondeat superior), and "did not comprehensively address other types of vicarious liability."²² The court held that petitioner could be liable on a respondeat superior theory.²³

PUBLIC INTEREST EXCEPTION TO MOOTNESS RESONATES WITH THE COURT

While the Supreme Court declined to address issues not adequately preserved or briefed, it was willing to resolve questions of public importance even if the underlying dispute had become moot by the time of its opinion. In such a situation, an exception to the mootness doctrine allows appellate courts to issue rulings if the parties raise substantial questions of public interest that are likely to recur.²⁴

In Berroteran v. Superior Court, the court granted review to resolve a conflict in the courts of appeal regarding whether depositions could be admitted under the prior testimony exception to the hearsay rule.²⁵ After briefing and oral argument, the parties settled.²⁶ Nonetheless, the court found it appropriate to resolve the legal issue that had led to conflicting decisions in the lower courts. "In light of the important issues presented, we exercise our discretion to proceed to decide the matter" in order to "provide guidance for future resolution of similar issues."²⁷ The court held that depositions are generally not admissible under the prior testimony exception to the hearsay rule.²⁸

CALIFORNIA COURT OF APPEAL VIGILANCE REQUIRED WITH ELECTRONIC FILING OF NOTICES OF APPEAL

Garg v. Garg emphasizes the importance of verifying that one's electronic filings make it to the court.²⁹ Approximately two weeks before the deadline to file a notice of appeal, lawyers instructed a third-party filing service to electronically file the notice in the appropriate trial court.³⁰ Though there was no report of failure, no filing occurred at that time.³¹ Counsel finally filed the notice 29 days later, 15 days after the deadline.³² This proved fatal to the appeal.³³

The Court of Appeal did open the door to saving notices of appeal that are tardy because of electronic filings difficulties. Under trial court rules, "[t]rial courts should deem notices of appeal to be filed as of the date a party submitted the electronic document if the document was not received or accepted due to a technical problem with the court's electronic filing system."³⁴ And, while appellate court rules "are ambiguous," courts of appeal will also consider a motion for relief due to "failure at any point in the electronic transmission and receipt" to or by the trial court of the notice of appeal, if the notice is filed "on paper or electronically as soon thereafter as practicable."³⁵ In Garg, however, the court denied relief because the ultimate filing of the notice of appeal, coming 29 days after the filing attempt, was not "as soon as practicable."³⁶

LET'S BE CANDID

This year the Courts of Appeal reminded counsel of their duty of candor and warned them not to engage in gamesmanship. In Oswald v. Murray Plumbing and Heating Corporation, the court had harsh words for counsel who failed to inform it until right before oral argument of a new development in the case, which caused the court to do unnecessary work.³⁷ The appeal hinged on a provision in a collective bargaining agreement that was superseded by a retroactive Memorandum of Understanding soon after the notice of appeal was filed. The attorneys "behaved as if nothing had occurred and briefed the appeal without mentioning the [memorandum]"; surprisingly, even the party that benefited from the memorandum was silent.³⁸ The court explained that the failure to immediately disclose the memorandum "wasted judicial resources," requiring the court "to prepare an...