May 2018 Update
There have been a number of developments since the publication of the 2017 update to this book.
The Judicial Council approved amendments to the state Rules of Court since the last update. We updated all California Rules of Court citations and Judicial Council forms throughout the book. We also updated all citations to local rules of the appellate district courts and superior courts. The California Supreme Court’s new e-filing rules are also included.
Posttrial Motions. In Ryan v Rosenfeld (2017) 3 C5th 124, the California Supreme Court confirmed that an order denying a CCP §663 motion to vacate is appealable, regardless of whether the issues raised in the appeal overlap with issues that were or could have been raised in an appeal of the judgment. See §§2.80, 4.45.
Prospects for Success. In F.P. v Monier (2017) 3 C5th 1099, the California Supreme Court held that when a trial court fails to issue a timely requested statement of decision, reversal on appeal is not automatic; an inquiry into prejudice is required. See §2A.12.
Appealable Judgments and Orders. In Dhillon v John Muir Health (2017) 2 C5th 1109, the California Supreme Court held that a trial court’s order granting a petition for a writ of administrative mandamus and remanding for further administrative proceedings was an appealable final judgment; although issuance of the writ did not definitively resolve the dispute between the parties, it marked the end of the writ proceeding in the trial court. See §3.33.
In Kurwa v Kislinger (2017) 4 C5th 109, the California Supreme Court held that the trial court retained jurisdiction to correct a stipulated order dismissing the parties’ pending claims, which was held unappealable in Kurwa I because the claims were dismissed without prejudice, and to enter an appealable judgment after the claims were either fully litigated or dismissed with prejudice. See §3.54.
In Howeth v Coffelt (2017) 18 CA5th 126, the court of appeal held that an order made after a stipulated judgment was not appealable as an order after judgment. See §3.68.
In Yolanda’s, Inc. v Kahl & Goveia Commercial Real Estate (2017) 11 CA5th 509, the court of appeal held that an order compelling third party discovery responses in postjudgment collection proceedings was not appealable as an order after judgment. See §3.69.
In Chango Coffee, Inc. v Applied Underwriters, Inc. (2017) 11 CA5th 1247, the court of appeal held that an order denying a motion for reconsideration under CCP §1008(b) is not appealable unless the underlying order (the subject of the motion) is appealable, in which case CCP §1008(g) permits an appeal. See §§3.74, 7.87.
In Lindsey v Conteh (2017) 9 CA5th 1296, the court of appeal held that a discovery referee’s sanctions award was directly appealable under CCP §904.1(a)(12), without further action from the court, when the referee’s appointment was a general not special reference. See §3.91.
In Kaiser Found. Health Plan, Inc. v Superior Court (2017) 13 CA5th 1125, the court of appeal held that CCP §1294 did not authorize an appeal from a judgment confirming an interim arbitration award when only threshold issues (preemption and exhaustion) were adjudicated. See §3.93.
Standing to Appeal. The California Supreme Court in Hernandez v Restoration Hardware, Inc. (2018) 4 C5th 260 held that an unnamed class member who fails to become a party of record, either by formally intervening or by filing an appealable motion to set aside and vacate the class judgment under CCP §663, cannot appeal from denial of his or her objections to the class action settlement. See §5.13.
In Kinney v Clark (2017) 12 CA5th 724, the court of appeal held that a previously declared vexatious litigant was subject to prefiling requirements when he was represented by “puppet” attorneys, even though CCP §391.7 by its terms only applies to self-represented litigants. See §5.45
Stay of Enforcement. The court of appeal in URS Corp. v Atkinson/Walsh Joint Venture (2017) 15 CA5th 872 held that, although an appeal from an order disqualifying plaintiffs’ counsel automatically stayed the order, it did not automatically stay the rest of the trial proceedings. See §6.19.
In Quiles v Parent (2017) 10 CA5th 130, the court of appeal held that an appeal is from a “costs-only” judgment under CCP §917.1 if the costs were awarded under CCP §§1021–1038; therefore, the defendant, who satisfied the damages portion of the judgment and appealed only the larger award of attorney fees and costs, was entitled to a stay of enforcement with no bond required. See §6.28.
Designating the Record. Effective January 1, 2018, Cal Rules of Ct 8.137 was amended to streamline the procedure for using a settled statement in some cases. An appellant does not have to file a motion in the trial court for permission to proceed by settled statement, as long as the designated oral proceedings were never reported or the appellant has received a fee waiver. See §§9.58–9.66, 9.137. The Judicial Council has also published a new optional form for filing a proposed settled statement. See §9.137.
In Rhue v Superior Court (2017) 17 CA5th 892, the court of appeal held that the superior court cannot refuse to approve an appellant’s settled statement on the ground that it would be difficult to reconstruct a hearing. See §9.65.
In Rhule v WaveFront Technol., Inc. (2017) 8 CA5th 1223, the court of appeal affirmed an attorney fees order, holding that, in the absence of any transcript of fee-related hearings, or an agreed or settled settlement, the record was inadequate to show the trial court abused its discretion. See §9.52.
Opening Briefs. In Phillips v Honeywell Int’l Inc. (2017) 9 CA5th 1061 and Pizarro v Reynoso (2017) 10 CA5th 172, when appellants did not present arguments in separate headings or subheadings in their opening briefs as required by Cal Rules of Ct 8.204(a)(1)(B), the courts of appeal treated those arguments as forfeited. See §12.53.
In Ewald v Nationstar Mortgage, LLC (2017) 13 CA5th 947, on appeal after grant of summary judgment, the appellant cited only one case without explaining its relevance, failed to articulate the standard of review or to describe elements of causes of action for which triable issues of fact might exist, and filed no reply brief; the court of appeal affirmed with no discussion of the merits due to “[e]gregious violations of basic appellate norms.” See §12.122.
Decision on the Merits. In Beach Break Equities, LLC v Lowell (2016) 6 CA5th 847, the court of appeal held that a tenant who won reversal of a judgment in an unlawful detainer case could obtain restitution of possession through a motion on remand; filing a cross-complaint was not required. See §17.68.
In Stueve v Nemer (2017) 7 CA5th 746, the court of appeal held that, in calculating the time limit for bringing a case to trial, an action is “brought to trial” when prospective jurors have assembled for voir dire and are sworn to tell the truth; not later, when the clerk administers the oath to the trial jurors after they have been selected. See §17.78.
Petition for Rehearing. In Bigler-Engler v Breg, Inc. (2017) 7 CA5th 276, the court of appeal modified its analysis of a key issue in response to a petition for rehearing based on Govt C §68081 (rehearing required when appeal decided on issue that was not briefed). See §19.9.
Attorney Fees. In City of Crescent City v Reddy (2017) 9 CA5th 458, the court of appeal denied appellant’s request for attorney fees under Health & S C §17980.7 (enforcement of state housing law) on the ground that a statutory award of fees incurred on appeal should be sought in the first instance in the trial court. See §20.32.
In Gonzalez v Santa Clara Dep’t of Soc. Servs. (2017) 9 CA5th 162, the court of appeal held that less deference may be awarded to a trial court’s fee award for appellate services than would otherwise be the case under the abuse of discretion standard, given that appellate court is “at least as well situated as the trial court to determine [the] reasonable value” of the fees. See §20.32.
Sanctions. In Kinney v Clark (2017) 12 CA5th 724, the court of appeal held that when counsel acted as “mere puppets” for a vexatious litigant, the court could expand a prefiling order to prohibit attorneys on appellant’s behalf from filing any new litigation or appeal without prior leave of court. See §20.42
In Diaz v Professional Community Mgmt., Inc. (2017) 16 CA5th 1190, the appeal was held frivolous when appellant intentionally and misleadingly induced the trial court to deny the very order it was appealing, solely for purposes of delaying the pending trial and obtaining immediate appellate review. See §20.44.
In Lopez v Routt (2017) 17 CA5th 1006, the appeal was not held frivolous because, although there was relevant supreme court precedent, no court had expressly ruled on the precise question at issue in the appeal. See §20.45.
Citing of Opinions. In Direct Capital Corp. v Brooks (2017) 14 CA5th 1168, the court of appeal advised that, when citing an unpublished federal or sister-state opinion, counsel should supply Lexis or Westlaw citations or, if a citation is unavailable, present the opinion by way of judicial notice. See §21.20.