California Appellate Lawyer & Attorney : Archer Norris Law Firm : Trial, Business, Torts : Sacramento, Bay Area, Los Angeles, California

Legal Pad reports on a stiff reminder about verifying your declarations and evidence before the Ninth Circuit.  A Special Master recommends sanctions and attorneys fees and costs against plaintiff attorneys for submitting knowingly unverified and questionable translations of a writ of judgment issued by a Nicaraguan Court in an attempt to enforce a judgment against Shell Oil Company and Dole Food Company here in the U.S.  According to the Special Master's report and recommendations (.pdf), the attorneys knew that the "translation" provided to them by a third party was not an accurate representation of the actual judgment and yet they failed to bring it to the attention of the Ninth Circuit. 

Another interesting tidbit -- The Second District decided to rehear their February decision in In re Rachel L., 08 C.D.O.S. 2453 (more commonly known as the case that took down home schooling). 

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The Recorder ran an article today about Chief Justice Ronald George's plea that the state not cut the Judiciary's budget by nearly $246 million.

The article covers the Chief Justice's annual presentation before the Legislature.  For those of you without a subscription to CalLaw, here are some of the more interesting points:

"The legislation you enact into law may not be subject to judicial enforcement if that occurs," George said in his annual State of the Judiciary address to the Legislature. "I believe we all agree that a functioning court system is not a luxury - it is an essential component of state government. There are severe limits to how much we can reduce the services that we are required to provide."

The Chief Justice also requested 50 new judges, which the Legislator has tried to put off until 2009:

George also lobbied lawmakers to authorize a final set of 50 new judgeships, even though legislative leaders have already said there won't be enough money to fund them until 2009 at the earliest. And, as he had before, he asked the Legislature to boost pensions for judges appointed after 1994, an improvement, he said, that would attract more candidates "from diverse backgrounds to the bench."

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Ever find yourself questioning a victory as the verdict is read?

In Zagami, Inc. v. James A. Crone, Inc., Case no. D049563 (4th Dist. Mar. 10, 2008), the Fourth District remanded a case for a rehearing on damages finding that the jury’s verdict was hopelessly ambiguous and refusing to choose between two internally inconsistent verdicts. 

Zagami sued James A. Crone, Inc. seeking compensation after equipment disappeared following delivery.  Zagami claimed an agent of Crone signed for receipt of the equipment upon delivery.  Crone argued it never received the equipment and were therefore not liable for its disappearance.

The special verdict form requested damages on (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) good and services rendered; and (4) an open book accounting. The jury returned a verdict in favor of plaintiff in the amount of $15,500 on issues 1, 2, and 4.  On the value of goods and services rendered, however, the jury found that the lost equipment was worth $30,000.

The attorneys made a tactical decision in not asking for clarification of the verdict from the jury.  Instead, they argued before the trial court as to which amount --  $15,500 or $30,000 – was the proper judgment.  The trial court entered judgment in the amount of $15,500.  Plaintiff appealed.

The Fourth District reiterated that, on appeal, the correctness of the trial court’s interpretation of a special verdict is reviewed de novo.  There can be no inference in favor of the prevailing party and there is no preference for upholding a special verdict where the confusion is caused by two questions within that verdict.  Nor can the court choose between inconsistent answers.  Therefore, unless the court of appeal can interpret the verdict intended by the jury from its language in light of the pleadings and evidence, the case will be reversed and remanded for another trial on the issue of damages – which is exactly what they did here.

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Yesterday, the Second District issued an unfortunate reminder that CCP §§ 425.16, subd. (i), and 904.1, subd. (a)(13) make an order either granting or denying a Special Motion to Strike (Anti-SLAPP) immediately appealable.  Waiting until entry of final judgment after the grant of a Special Motion to Strike that disposes of all of the issues in a case could mean waiving your right to appeal the decision at all.  Russell v. Foglio (February 28, 2008) 73 Cal.Rptr.3d 87.

Plaintiff was successful on its Special Motion to Strike.  Defendant mistakenly waited until the entry of final judgment in the case to appeal the court's order.  The Second District found that it was too late and that the court no longer had jurisdiction to hear the appeal on that issue. 

Interestingly, Justice Rubin's concurrence includes a request to the Legislature that amendment may be needed to protect the unwary.  He argues that a more workable solution may be to have a denial of a Special Motion to Strike to be immediately appealable, but not necessarily the granting of such an order.

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These days the focus of appellate advocacy is on the writing skills of an attorney: framing the issues, arguing in the briefs. Once upon a time, however, there was much more emphasis on the oral arguments before the court.

Recently, we represented one of numerous defendants responding to an appeal by a singular appellant with a fairly sympathetic case. On repeated conference calls, counsel argued over the prudence of attending oral arguments. Some argued that appearing for oral arguments would only give appellants another opportunity to argue in support of their brief, which they did not believe was particularly strong. Certain counsel went so far as to posit that appearing for oral arguments was offensive to the court and counsel as it assumed that the arguments were not laid out clearly in the written briefs.

Others (including myself) argued that we would never waive oral arguments -- that it was an opportunity to enhance arguments made in our brief and respond to questions by the court. As much as I would like to believe that my written briefs are all the information the justices need to decide a matter, I felt it was arrogant to assume the court would not have any questions on our position.

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Fourth District decision seems obvious -- if you want to hold your employees to an arbitration agreement -- having them actually sign an agreement is necessary.   But having run a small business myself, I know all too well how often this does not happen.

So, here is your friendly reminder that those employee handbooks, while necessary and useful, are not the end all be all of your HR Departments.  Is it time to review those employee agreements?

Mitri v. Arnel Management Company (Dec. 12, 2007) :  Employees sued management company for sexual discrimination and harassment.  The employer tried to enforce an arbitration agreement based solely on the language of the employee handbook requiring arbitration.  Court says "not happening" without an agreement to arbitrate signed by each employee.

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I couldn't have said it better. 

Scott Greenfield at Simple Justice explains the evolution of trial lawyers versus appellate lawyers.

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In two separate decisions yesterday, the Second District issued a strong reminder of the difference between raising a triable issue of fact and proving elements of a cause of action on summary judgment.

In Nielsen v. Beck (Los Angeles County Super. Ct. No. BC339322) the found that there remained a triable issue of fact as to whether an attorney continued to represent his client beyond a substitution of attorneys.  The trial court ruled that continued conversation between counsel and his former client did not establish a triable issue of fact sufficient to defeat defendants’ claim that the cause of action was barred by the statute of limitations.  The court disagreed, finding triable issues of fact as to the scope of the attorney’s continuing relationship with his client and regarding the actual date of termination of that relationship.  

In Raven v. Gamette (Los Angeles County Super. Ct. No. BC337558), a tenant sued her landowner for negligent failure to secure the rental premises in light of previous criminal activity.  The landlord brought a motion for summary judgment arguing that his tenant could not prove a causal link between her injuries and his failure to take safety precautions.  The trial court agreed, ruling that plaintiff had “failed to submit admissible evidence establishing a causal link between her injuries . . . and . . . decedent’s alleged breach of duty [and t]hus, plaintiff failed to establish the element of causation in her cause of action for negligence.”  

The Second District overturned the decision admonishing, “In order to defeat defendant’s summary judgment motion, plaintiff only needed to raise a triable issue of material fact as to the issue of causation; she did not need to establish that element of her negligence cause of action.” (Emphasis added).

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 . . . and I was still writing my opening brief.

From the day we enter law school we hear the mantra "simplify simplify simplify".   In honor of "simplicity" this holiday season, Howard Posner, an appellate attorney in Los Angeles, wrote a great article for California Lawyer Magazine about avoiding getting bogged down in words.

Posner writes about a holiday evening as he sits down to read "Harry Potter and the Demurrer of Doom" when he is visited by the ghost of his still practicing law partner who is dragging the chains of his verbosity . . .

"Dreadful apparition, why do you trouble me?"  I started to exclaim, but the words died in my throat because, on second thought, they sounded lame."

I had a good chuckle (Would that be Ho!Ho!Ho!?) and a solid reminder to Keep It Simple!  Read the full story here and many holiday wishes to Mr. Posner.

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