Code of Civil Procedure section 473, subdivision (b) requires a court, under certain circumstances, to grant relief from default or dismissal that results from counsel’s mistake, inadvertence, surprise, or neglect. In a recently-published opinion, Las Vegas Land & Development Co. v. Wilkie Way (2013) 219 Cal.App.4th 1086, 1090, Division Three of the Second Appellate District reminded us that California appellate courts are currently split on whether this mandatory provision applies to summary judgment. There, the court joined the majority and held that it does not. (Id. at p. 1091.)
The verdict is in. AEG Live is not liable in the Michael Jackson wrongful death suit. An appeal is a foregone conclusion. But will an appeal be a "Thriller?"
The standards of review tend to reduce the possibility of drama, and also deflate the charged emotions attendant during trial. For example, the pivotal factual dispute–was AEG Live negligent in its retention or supervision of Dr. Murray–will be subject to the substantial evidence standard of review. Despite its name, the substantial evidence standard is not about quantity. Rather, the substantial evidence standard asks if there is any credible evidence sufficient to support the verdict. If there is, the jury’s resolution of the factual issue stands.
Misdirection is a form of deception employed by magicians to focus the attention of an audience on one thing in order to distract its attention from another. For example, a magician announces that he is going to make a donkey appear behind a curtain in the middle of the stage. While his beautiful assistant distracts the audience by making a sudden, scantily-clad appearance, the magician does something very ordinary—leads a donkey onto the stage. A moment later, the magician drops the curtain to the ground, revealing a real live donkey. The audience is amazed. Because its attention was focused on the beautiful assistant, the audience did not notice what would otherwise be an obvious act. Thus, thanks to misdirection, the magician was able to lead his audience to draw the false conclusion that the donkey had “magically appeared.”
In a recently-published decision, Rayii v. Gatica (2013) 218 Cal.App.4th 1402, one party attempted to use this same technique to lead the Court of Appeal to draw the false conclusion that the jury’s finding was not supported by sufficient evidence. The Court of Appeal, however, was not amazed. Rayii reminds us that, unlike a magician’s audience, the Court of Appeal is not easily distracted. The decision is also a reminder that on appeal, the standard of review matters.
Under the California Rules of Court, rule 8.1125(c), the Supreme Court has the discretionary power to depublish an opinion at any time. Recently, the California Court of Appeal held that, when this happens, depublication can constitute “a change in the law” sufficient to warrant reconsideration under Code of Civil Procedure section 1008. Farmers Insurance Exchange v. Superior Court (Wilson) (2013) 218 Cal.App.4th 96, 105 (Farmers). And in the unusual circumstances presented by Farmers, it necessarily did.
In 2006 the Legislature amended Code of Civil Procedure section 998 to state that "The written offer shall include . . . a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted." In 2013, we are still seeing cases in which failure to include the acceptance provision invalidates an otherwise successful 998 offer. The latest is Boeken v. Philip Morris, decided on July 9. In Boeken, failure to comply with the statute cost the plaintiff 10% interest from the date of the 998 offer–on a $12.8 million award. The decision does not elaborate on when the offer was made, but with that size of award, we’re probably talking real money here.
Archer Norris welcomes Tiffany J. Gates to the appellate practice team and is pleased to present her first blog entry:
Flag on the Play
Football coach Vince Lombardi famously opined that, “Winning isn’t everything; it’s the only thing.” This mantra captured the public’s imagination during Lombardi’s reign as coach of the Green Bay Packers in the 1960s, becoming a basic tenet of American sports. But in Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc., 2013 Cal.App.LEXIS 513, the Fourth District Court of Appeal recently made it clear that the “Vince Lombardi” approach to law practice can draw the yellow flag. As explained below, this is particularly true where a modicum of professional courtesy could obviate a summary judgment motion, the imposition of sanctions, and an appeal.
Earlier this week, the state Supreme Court decided Martinez v. Brownco Construction Co. Inc., S200944. The issue was when it comes to two or more valid CCP section 998 offers, each of which is exceeded by the amount of the judgment, which offer shifts costs/fees? The state’s high court affirmed the Second District’s decision that the earliest offer can shift fees. The Supreme Court rejected application of a bright line rule holding that the last valid offer is always the operative offer.
In Martinez, the plaintiff made a valid 998 offer for $250,000, which expired without being accepted. Much later, the plaintiff made another valid offer for $100,000, which was also not accepted. The plaintiff obtained a $250,000 judgment. Then the plaintiff sought expert witness fees from the date of the earlier 998 offer. (The swing between the two 998 offers was no small matter: $188,000.) Applying what is known as the "last offer rule," the trial court decided that the plaintiff’s second offer "extinguished the first for all purposes" such that fees could only shift from the later offer. The Court of Appeal reversed, holding that when a plaintiff makes two or more reasonable 998 offers all of which are valid and expire by operation of law, the plaintiff can shift expert witness fees based upon the earliest offer.
The Supreme Court granted review in light of the contradiction between the "last offer rule" and the earliest offer result in Martinez. In deciding Martinez, the Court rejected automatic application of the "last offer rule" to multiple valid offer cases such as Martinez. But the Court also appeared to embrace the "last offer rule" in a different kind of situation, those in which the earlier 998 offer hits and the later 998 offer misses. As the Court put it, "[F]or present purposes we may assume the propriety of applying the last offer rule where . . . an offeree obtains a judgment or award less favorable than a first section 998 offer but more favorable than the later offer."
Now that Martinez has been decided, what is the current state of multiple 998 offer case law?
If you have a federal practice, chances are you have encountered Ninth Circuit opinions written by Circuit Judge Ferdinand F. Fernandez. For the uninitiated, Judge Fernandez has made a career of teasing readers by sprinkling obscure words into his opinions that often require resort to the dictionary. For those amused by this sport, and I admit to being one, the opinions carry a sense of anticipation wholly separate from the legal issue at play. The eyes scan the pages looking for the unfamiliar arrangement of letters that when found, transmit little more than say, Chinese characters do to the uninitiated.
Usually Judge Fernandez drops one such word in each opinion, but on May 21, 2013 he splurged with a probable three-for-one. The opinion is Lawrence v. Holder. Here is the text that might have you headed for the dictionary for the exact definitions:
"Other courts of appeals have agreed, although sometimes with less than hyaline reasoning."
"If we had any remaining doubt, those cases would absterge it."
"Lawrence, . . . hopes to take advantage of the relief provided by [section] 212(c), but that hope has induced him to chase an eidolon."
Well, there you go. Of course, this game doesn’t quite work so well in reverse, right?!
The California Supreme Court recently decided that so long as its notice of appeal is timely filed, a suspended corporation can still pursue the appeal if it later revives its corporate powers. The case, Bourhis v. Lord, involved a suspended corporation filing notices of appeal. Several months later, the corporation revived its corporate powers. In light of such subsequent revival, the Court of Appeal rejected motions to dismiss the corporation’s appeals, and the Supreme Court affirmed. "When that certificate [of revivor] is received, as one court put it, ‘[t]he legal rights of a suspended corporation are then revived, as an unconscious person is revived by artificial respiration.’" Such revival "made the earlier, invalid but timely, notices of appeal valid and still timely."
If the procedural posture brings to mind audible exclamations of relief, the back-story to this case heightens such emotions. When the Supreme Court heard oral argument by special session in Southern California, the corporation’s appellate counsel showed up for oral argument–in San Francisco! Appellate counsel was anything but a neophyte, having argued dozens of appeals before, including many in the high court. When he failed to show, the Court allowed opposing counsel to argue, then declared the case submitted. Court staffers have reported that counsel’s no-show is only the second one in institutional memory.
The decision, issued on March 4, was controlled by stare decisis. Justice Joyce L. Kennard concurred and dissented, stating that while precedent dictated the outcome, it was time to abandon that precedent. "[T]hose two decisions were wrong then, are wrong now, and should be overruled." Justice Kennard asserted that in order for notices of appeal to invoke appellate court jurisdiction, such notices must be timely and valid when filed.
As for the corporation’s appellate practitioner? Although he had expressed confidence in the result, he must be feeling a little relieved these days. Whew!
The California Supreme Court is reviewing the following question: "Is a party who obtains the dismissal of a contract action entirely on procedural grounds entitled to an award of attorney fees under Civil Code section 1717 as the prevailing party in an action on a contract?" The case being reviewed is Kandy Kiss of California v. Tex-Ellent (2012) 209 Cal.App.4th 604. Kandy Kiss follows other appellate court decisions awarding contractual attorney fees for procedural wins. How much longer will such decisions be good law?
In Kandy Kiss, the defendant obtained dismissal of Kandy Kiss’s suit for lack of subject matter jurisdiction. Even though the battle would shift to federal court, the trial court awarded defendant $129,000 in contractual attorney fees. Kandy Kiss appealed, arguing that since the merits of the dispute would proceed in federal court, there was no contract action winner yet. But the Second District Court of Appeal concluded that "[defendant] should not be deprived of compensation for the fees it expended in defeating a separate action brought in an independent and separate forum."
Now the Supreme Court has granted review.