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

Every now and again a case comes along with a result that directly impacts the everyday lives of millions of people. One would not expect such a case to originate in traffic court, however.

But that was the backdrop for a recent case, People v. Nelson (2011) 200 Cal.App.4th 1083, in which Division 2 of the First District Court of Appeal affirmed a guilty judgment against Carl Nelson for violating Vehicle Code section 23123 – also known as California’s hands-free law.

The facts are simple and commonplace: Nelson was driving one morning in Richmond when he stopped at a red light. While he waited for the light to turn green, he picked up his flip-type wireless phone and began to dial a number, his motor running and car still in gear. As he began to move the phone to his ear, a motorcycle officer pulled up next to the driver’s side window. The officer saw Nelson using his phone and cited him for violating section 23123, which states that persons shall not drive on public roadways using a wireless telephone unless the phone is configured for hands-free listening and talking, and used in that manner while driving.

Nelson argued to the traffic commissioner at trial that he was not “driving” his vehicle when he used his wireless telephone since he was stopped at a red light. He based his argument on the California Supreme Court's determination in Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 that the term “drive” as used in Vehicle Code section 23512 (prohibiting driving under the influence of alcohol or drugs), requires proof of “volitional movement.” 

Nelson was found guilty of violating section 23123 and the appellate division of the superior court affirmed his conviction. That court then granted Nelson’s request for transfer certification to the Court of Appeal because it thought it necessary to determine “whether the term ‘driving’ as used in section 23123 requires contemporaneous volitional movement of the motor vehicle as an element of the offense.” 

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A recurring theme is that collectively speaking, lawyers often make and evaluate Code of Civil Procedure section 998 offers without a complete understanding of how the statute operates.  That knowledge gap is a little scary. 

But before you conclude I am talking down to trial lawyers (and many have heard me admire how trial lawyers react in real time and keep all those plates in the air), check this out: judges sometimes get 998 offers wrong too.  And think about this – if anyone sees 998 offers in operation the most – it’s the civil trial court judges.  After all, they have the robust caseloads and are more apt to regularly deal with 998 offers.

In preparing for the upcoming 2011 MCLE Spectacular presentation, I came across a splendid example of how section 998 trips up lawyers and sometimes judges alike.  The case is Warfield v. Chandler 2011 Cal.App. Unpub. LEXIS 4024.  Warfield has a lot to offer.

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What's that old saying that a good lawyer can argue just about anything?  While that may be true, a recent decision by the Sixth District Court of Appeal demonstrates that some arguments are better left not taken.  Sometimes it's probably better to walk away. 

But if taken, a proper record should be designated, or what follows could be quite, well, unpalatable.  For failure to properly perfect the record on appeal can be viewed as evidence that the appeal is frivolous.  And if the Court of Appeal finds the appeal frivolous, it can award sanctions in the form of respondent's attorney fees and fines paid to the court.  That's exactly what happened in Foust v. San Jose Construction Company, where appellant was ordered to pay $15,000 in sanctions. 

What went wrong?

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A recent ruling by the Fourth District Court of Appeal confirms that unless an order of dismissal is in writing, signed by the trial judge, and filed, it is ineffective as a judgment under Code of Civil Procedure section 581d.  In Powell v. County of Orange (Aug. 8, 2011)  2011 Cal.App. LEXIS 1024, the court held that neither a stamped, nor a signed minute order meets the requirements of section 581d.  Consequently, such an order does not qualify as a final judgment that might serve the basis for appellate jurisdiction.  For the decision, please click here

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In what appears to be a trend (see prior post, In Search Of), another decision issued last week demonstrates a different kind of missing ingredient in legal briefs -- the argument:

"The jury awarded Quantum $1 million in damages. Subsequently, LV Associates moved for a new trial and judgment notwithstanding the verdict.  The trial court denied the post-trial motions, finding their one-page supporting memoranda lacked any discussion related to the facts or to the cited law, failing to comply with Rule 3.1113 of the California Rules of Court."  Quantum Cooking Concepts Inc. v. LV Associates Inc. 2011 Cal.App. LEXIS 951.  

Digging a little deeper, the case reveals that the thrifty approach to briefing in Quantum Cooking involved two separate issues assigned a half a page each.  Somewhere there is an attorney mourning the adage, "be brief" and pondering the high school English teacher's mantra that less is more, at least when taken to the extreme.

But if leaving the required statement of facts, specific evidentiary references and arguments out is problematic, there are greater sins of inclusion.  If you are going to let it all hang out in a brief, it's still a good idea to attend to basic spelling and grammar and it's always a good idea to refrain from calling the judge names.  A recent Fifth Circuit decision is, well, you decide:

http://www.virginiaappellatelaw.com/2011/07/articles/writing/dont-mess-with-texis-sic-legalwriting-lessons-from-a-fifthcircuit-benchslap/

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Here's a reminder about the appellate lawyer's obligation to tie legal arguments to the record.  In addition, every now and then you run across what appears to be a little judicial jab in an appellate opinion:

"Under the circumstances, [Plaintiff] has not met his burden of showing abuse of discretion.  Each appellate brief must 'support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.'  (Citation)  'The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.  It is entitled to the assistance of counsel.'  (Citation)  'It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant's contentions on appeal.  If no citation is furnished on a particular point, the court may treat it as waived.'  (Citation)  Further, [Plaintiff] has already filed three complaints without being able to state a single cause of action."  (Durrell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1371-1372.)

Okay, so maybe more than just a little jab.

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Every now and again an appellate decision comes down the pike with the banner, "they didn't, did they!?"  A recent decision, Kimes v. Grosser, 2011 Cal.App. LEXIS 671, is a notorious example.  Cat lovers, stop reading now.  But those annoyed by a neighbor's cat, dog, or even the neighbors themselves, here's your chance to take a deep breath.

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Speaking of Code of Civil Procedure section 998 offers, another decision came out on May 25, 2011.  It is interesting because one would think that the issue had already been covered by a published opinion, but apparently not.  The case is Puerta v. Torres, 2011 Cal.App. LEXIS 649.  And it holds, simply enough, that if a 998 offer lacks a place for the offeree to accept by signing, the offer is invalid. 

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A recent appellate decision is notable for two reasons.  First, it has to be one of the shortest published opinions on record -- the text fits on one page.  Second, it holds that when a Code of Civil Procedure section 998 offer includes the phrase, "each side to bear their own costs," the word "costs" includes any attorney fees available to the offeree as a prevailing party.  The case is Martinez v. Los Angeles County Metropolitan Transportation Authority 2011 Cal.App. LEXIS 620 (2d Dist.).  

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