May 2019 Update
There have been a number of developments since the publication of the 2018 update to this book.
The Judicial Council issued new appellate forms, and new Rules of Professional Conduct went into effect November 1, 2018. We updated all California Rules of Court citations and Judicial Council forms throughout the book. We also updated all citations to rules of the appellate district courts and the California Supreme Court.
Posttrial motions. The time for a court to rule on a motion for new trial or motion to vacate, which can extend the time to file a notice of appeal, was increased from 60 to 75 days after notice of entry of judgment is mailed by the clerk or served by the moving party, whichever is earlier. CCP §§660, 663a. See §§2.38, 2.64.
Appealable Judgments and Orders. In Hedwall v PCMV, LLC (2018) 22 CA5th 564, the court of appeal deemed the trial court’s rulings on a demurrer and motion for judgment on the pleadings to incorporate a judgment of dismissal, because the rulings resolved all claims between appellant and one respondent. See §3.17.
In County of Los Angeles v Los Angeles County Civil Serv. Comm’n (2018) 22 CA5th 174, the court of appeal held that a trial court’s order remanding a case to an administrative body was not appealable when the trial court indicated that an issue it did not reach could be revived depending on the outcome of the administrative proceedings. See §3.40.
In Hensley v San Diego Gas & Elec. Co. (2017) 7 CA5th 1337, the court of appeal held that a stipulated judgment disposing of all causes of action and intended to facilitate an appeal after an adverse in limine determination by the trial court was appealable under Kurwa v Kislinger (2013) 57 C4th 1097. See §3.37.
There is a split of authority as to whether an order awarding costs following a voluntary dismissal without prejudice is appealable. Compare Mon Chong Loong Trading Corp. v Superior Court (2013) 218 CA4th 87 (postdismissal order taxing costs not appealable as a postjudgment order under CCP §904.1(a)(2) because there has been no judgment, only a dismissal), with Gassner v Stasa (2018) 30 CA5th 346 (postdismissal costs award itself appealable as a final judgment under CCP § 904.1(a)(1) because it constituted a final determination of the parties’ rights). See §3.39.
In Uber Technols., Inc. v Google (2018) 27 CA5th 953, the court of appeal held that a superior court order vacating an arbitrator’s third-party discovery order disposed of all issues involving the third party and was therefore appealable. See §3.51.
In Finance Holding Co. v American Inst. of Certified Tax Coaches, Inc. (2018) 29 CA5th 663, the court of appeal described the test for finality of a third-party discovery order: the order is final for purposes of appeal if it reflects a final determination of the parties’ rights or obligations, but not if it contains language showing it is only preparatory to a later ruling. See §3.69.
In Maplebear, Inc. v Busick (2018) 26 CA5th 394, the court of appeal treated a superior court order denying a petition to vacate an arbitration ruling as an appealable order dismissing a petition to vacate. See §3.93.
In Ontiveros v Constable (2018) 27 CA5th 259, the court of appeal held that a trial court’s order vacating its grant of a shareholder’s motion under Corp C §2000 (permitting appraisal and shareholder buyout procedures as alternative to dissolution) was appealable because the shareholder’s interest in vindicating his statutory right to purchase shares was immediate, pecuniary, and substantial, and not merely a nominal or remote consequence of the court’s ruling. See §3.99D.
Preserving the Record. In Castillo v Glenair, Inc. (2018) 23 CA5th 262, on appeal from a judgment following a summary judgment motion, the court declined to follow the “golden rule” requiring that all facts must be included in a separate statement, and held that evidence raised for the first time in opposing papers could be incorporated in the moving party’s reply, so long as the opposing party had notice and opportunity to respond. See §4.16.
Staying Enforcement. In LAOSD Asbestos Cases (2018) 28 CA5th 862, the court of appeal held that the automatic stay triggered by an appeal from a personal injury judgment did not preclude the heirs of a newly deceased plaintiff from intervening to file an amended complaint below, because their wrongful death claims were not related to a matter embraced by the judgment. See §6.5.
In Rostack Invs., Inc. v Sabella (2019) 32 CA5th 70, the court of appeal analyzed the reasonableness of costs incurred to furnish security for a stay of enforcement during appeal. See §6.12.
In People v American Sur. Co. (2019) 31 CA5th 380, the court of appeal held that security given for appeal of an order that is neither a money judgment nor an order directing payment of money does not stay enforcement of the underlying unappealed judgment. See §6.38.
Cross-appeals. In Hong Sang Market, Inc. v Peng (2018) 20 CA5th 474, the court of appeal held that a commercial landlord was not required to file a cross-appeal to raise the issue of waiver of affirmative defenses for the first time on appeal; the trial court’s ruling granting the tenant leave to amend her answer to assert an affirmative defense was an intermediate ruling necessarily affecting the trial court’s final judgment, and so fell within the appellate court’s scope of review. See §8.4.
Designating the record. The Judicial Council has published a variety of optional forms for use in obtaining a settled statement when a record of oral proceedings in the trial court is not otherwise available. These include a form of proposed settled statement, respondent’s proposed amendments, motion to use settled statement, and certification of settled statement. See §§9.136–9.138.
Briefs. New Cal Rules of Prof Cond 3.3 (duty of candor toward the court) imposes a stricter obligation to disclose unfavorable legal authorities than former Rule 5–200. Rule 3.3(a)(2) directs that a lawyer must disclose to the court legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. See §§12.65, 13.9.
In Martine v Heavenly Valley Ltd. Partnership (2018) 27 CA5th 715, appellant’s claims of error regarding a motion for new trial and discovery of new evidence were forfeited for failure to supply cogent and supported arguments with citations to the record affirmatively demonstrating error. See §12.122.
Appellate mediation. Effective January 1, 2019, Evid C §1122 was amended and Evid C §1129 added to require that attorneys provide clients with a printed disclosure regarding confidentiality restrictions in mediation. A sample form of Mediation Disclosure Notification and Acknowledgment has been added to chapter 15A. See §§15A.14–15A.14A.
Oral argument. In March 2019, the First Appellate District issued tentative new local rules, including proposed Rule 15(b) which would permit First District panels, in their discretion, to issue tentative opinions in advance of oral argument. The new rules are expected to go into effect in the summer of 2019. See §16.17.
Decision on the merits. In Samara v Matar (2018) 5 C5th 322, the court of appeal held that when plaintiff appealed a malpractice judgment in defendant’s favor on two grounds, and the appellate court affirmed only on the limitations ground and was silent on the lack-of-causation ground, a co-defendant whom plaintiff alleged was vicariously liable could not invoke claim preclusion on lack-of-causation grounds in a subsequent appeal; the preclusive effect of the prior judgment had to be evaluated as though the trial court did not reach the second ground. See §17.118.
Petition for rehearing. Although successful petitions for rehearing are rare, a grant of rehearing can change the outcome in the case. In People v Douglas (2018) 22 CA5th 1162, the court of appeal’s initial opinion used a mixed motive analysis for evaluating Batson-Wheeler errors in jury selection; on rehearing the court adopted a per se rule instead. In Olive v General Nutrition Ctrs, Inc. (2018) 30 CA5th 804, the court initially held the plaintiff was entitled to attorney fees in a commercial likeness case, even though he received substantially less in damages than he sought; on rehearing, the court changed its “prevailing party” analysis for mixed-results cases and upheld the lower court order denying fees. See §§19.2, 19.8.
In Morgan Hill v Bushey (2018) 5 C5th 1068, the California Supreme Court held that respondent could raise an issue for first time in a petition for rehearing when under prior case law the issue was “irrelevant,” respondent did not contest it, and the court of appeal’s initial opinion relied in part on its determination of that issue; the Supreme Court reasoned that the appellate court’s initial opinion constituted a change in the law. See §19.11.
Attorney Fees and Costs. In Stratton v Beck (2018) 30 CA5th 901, the court of appeal held that when an appellate court orders that “the parties are to bear their own costs of appeal,” it does not mean that the trial court cannot award the prevailing party attorney fees incurred in the appeal; under California Rules of Court 8.278(d)(2) a costs award on appeal neither includes attorney fees nor precludes a party from seeking them, unless the appellate court orders otherwise. See §§18.5, 20.09.
In Hall v Dep’t of Motor Vehicles (2018) 26 CA5th 182, the court of appeal suggested that an extension of the time to file a memorandum of costs on appeal (within 40 days after issuance of remittitur) is available under Cal Rules of Ct 8.278(c)(1) because that rule refers to Cal Rules of Ct 3.1700(b)(3), which permits an extension when filing for prejudgment costs. See §20.19.
Citing of opinions. In Hernandez v Restoration Hardware, Inc. (2018) 4 C5th 260, the California Supreme Court clarified that, although Evid C 452(d)(1) permits courts to take judicial notice of the records of any California court, under Cal Rules of Ct 8.1115(a) an unpublished opinion with very limited exceptions cannot be judicially noticed. See §21.19.
Review by the California Supreme Court. The latest court statistics report shows that the California Supreme Court receives about 900 petitions for review in civil matters annually, and the odds of obtaining a full grant of review are about 4 percent. See §22.4.