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

Whether prelitigation proceedings under the Calderon Act, Civil Code section 1375 et seq., come within a carrier's duty to defend any "suit" is apparently an issue of first impression.  Or at least, it was.  Such proceedings are covered.  In Clarendon America Insurance Co. v. StarNet Insurance Co. (2010) 186 Cal.App.4th 1397, the Fourth District holds that prelitigation proceedings are "civil proceedings" as that term is used to define a "suit" under the policy.

The Calderon Act requires common interest development associations (of projects greater than 20 units), to give notice to a builder, developer, or general contractor of construction or design defects before suing.  Calderon sets forth a litany of prelitigation steps aimed toward settlement.  (See Civil Code section 1375 subd. (a) - (s).)  If the dispute is not resolved via the Calderon process, then suit may be filed.  The complaint is deemed to have been filed on the date the Calderon notice was served.  (See Civil Code section 1375.05  subd. (b).)

In Clarendon, Centex homes developed a residential development covered by Calderon.  As Calderon requires, the homeowners association served a notice of commencement of legal proceedings prior to filing suit against Centex.  The notice contained the requisite list of alleged construction defects.

Centex was an additional insured on a subcontractor's policy with StarNet Insurance Company.  As is typical, the policy's defense agreement stated that StarNet had the "duty to defend the insured against any 'suit' seeking [ ] damages."  The term "suit" was further defined as "a civil proceeding in which damages . . . to which this insurance applies are alleged."  Centex sued carrier Clarendon, which cross-complained against StarNet, seeking a declaration that StarNet was obligated to defend Centex.

So what happened? 

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As an adjunct professor, I tend to remember that old saw about those that can, those that can't, and which of the two are teachers.  It's a little scary.  Between avoiding being in the wrong half of that equation, and wondering what the students might ask me next, there is plenty of incentive to try hard to stay sharp and also, practice what I preach.  Avoidance of the expression, "do as I say, not as I do" comes to mind.  It's with no small trepidation that you look upon the sea of faces waiting for you to impart wisdom.  Or something.

As lawyers, a frequent lament is about the poor quality of written briefs (never our own, of course).  We sometimes see them in our own cases, filed by our opponents.  And ask any trial or appellate judge at the next MCLE seminar you attend, you'll hear the frustration of a difficult job for shorthanded and overworked courts, exacerbated by poorly written briefs.

Let's face it, between discovery squabbles, pre/post-trial motions, mediation and trial briefs, 90% of what we do is write.  And we must do it (collectively speaking) fairly poorly.  Otherwise, how do you explain the popularity and success of brief writing gurus like Bryan Garner?  His MCLEs are not cheap.  They are also very popular.

In law school, we are taught to IRAC during our first semester and to think about legal writing from that framework.  But when it comes to writing the legal argument sections of briefs, doing CRAC is even better.  So whether you are trying to stay one step ahead of your opponents (or those hungry lawyers below you on the firm totem pole) or just been meaning to take a hard look at your own briefs, doing CRAC is a habit that is actually good for you.

Here's how: 

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It's over a hundred today, way too hot, almost flammable.  Speaking of flames, my recent post about what Code of Civil Procedure section 473 subdivision (b) can and cannot do to save clients from lawyer folly, reminded me of the following gems.  These do not necessarily have to do with attorney mistakes but they might provide a little humor.  So if you can't just drop your briefs (legal, that is) and jump in the pool or join the kids at the ice cream truck just yet, perhaps these will provide a little laughter to get you through a long, hot afternoon.

Dark Roast:  “At the hearing, the trial court deemed [defendant’s] argument ‘gamesmanship,’ ‘disingenuous,’ and worthy of the ‘chutzpah award.’ The trial court commented concerning the motion [to vacate the judgment], ‘When I finished reading this, I had a foul taste in my mouth and it wasn’t from the old Starbucks coffee I was drinking.’ ” (Diamond Game Enterprises, Inc. v. Whipple 2009 WL 921676 at *2.) 

Learned Profession:  “This is an argument only a lawyer could love; it rests on semantics rather than on reason.” (Gallo v. Sup. Ct. (1988) 200 Cal.App.3d 1375, 1380.)

Invigoration:  “After this mind-numbing journey through RCRA, we return to the provision that is, after all, the one before us for examination.” (American Mining Congress v. United States Environmental Protection Agency et al., (D.C. Cir. 1987) 824 F.2d 1177, 1189.)

Try, Try Again:  Taken as a whole, defendant's reply brief reads like an entirely new opening brief rather than as a response to plaintiffs' brief. [FN3. Defendant’s opening brief is only 39 pages long including 17 pages of facts and no footnotes. In contrast, his reply brief is 50 pages long . . . The reply brief contains 48 footnotes and each page of his reply brief contains more than 10 percent more text than the pages of his opening brief . . . In all, defendant’s reply brief contains about twice as much appellate argument as his opening brief.] (Riechardt v. Hoffman (1997) 52 Cal.App.4th 754, 767, fn. 3.)

Now, isn't that better?

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Being an appellate lawyer is having the luxury (generally speaking) of time to delve into the slightest nuances in the case law in vigorous detail.  And one of the side benefits of reading so many cases is encounters with colorful dissents.  As lawyers know, there's nothing like bitterness to give a fine edge to judicial opinions.  Read any of Justice Scalia's dissents and you immediately become aware of being in the presence of a great writer, not just legal writer.  You also cannot help but wonder which parts got left on the cutting room floor as just a little too inflammatory.  

One of the greatest examples of this art form is Justice Scalia's dissent in Dickerson v. Arizona, 530 U.S. 428 (2004).  Some snippets to whet your appetite:

"Those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored results will doubtless greet today's decision as a paragon of moderation, since it declines to overrule Miranda v. Arizona . . . Those who understand the judicial process will appreciate that today's decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda . . ." 

"And so, to justify today's agreed-upon result, the Court must adopt a significant new, if not entirely comprehensible, principle of constitutional law."

"Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance."

Ah.

Ninth Circuit Chief Judge Alex Kozinski is no slouch either when it comes to pen as sword.  Just a week ago Judge Kozinski dissented from the denial of a petition for rehearing en banc in United States of America v. Pineda-Moreno, 2010 U.S. App. LEXIS 16708.  Here's a taste:

"Having previously decimated the protections the Fourth Amendment accords to the home itself . . . our court now proceeds to dismantle the zone of privacy we enjoy in the home's curtilage and in public."

Oh, the bitterness!  And that's just the opening sentence!  There's more, but why spoil it for you?

Word wars.  Enjoy.

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On August 9th, the Second District reversed a trial court's dismissal of a personal injury/auto accident case on statute of limitations grounds.  The case has a certain Kafkaesque feel to it. Or perhaps Monopoly's "do not pass go" is a better description.

In Mito v. Temple Recycling Center Corp. 2010 Cal.App. LEXIS 1372, the plaintiffs faxed their complaint to the superior court clerk on July 24, 2008, a date within the two-year statute of limitations.  But the trial court clerk rejected the filing because plaintiffs failed to include the "Civil Case Cover Sheet Addendum and Statement of Location" required by local court rule.  The filing included the civil case cover sheet required by California Rules of Court, rule 3.220 subdivision (a).  The clerk stamped the submission "Received Fax Filing July 24, 2008."  The next day, the clerk rejected it, faxing a "Notice of Rejection-Fax Filing" back to plaintiffs.

So on July 28, plaintiffs faxed the same documents again, this time including the local rules cover sheet.  The receipt time printed on top of the superior court copies of the documents showed transmission between 4:16 p.m. and 4:22 p.m. that day.  But the court clerk (probably doing the work the next day), stamped the complaint as filed the following day, July 29, 2008.

That was one day after the statute of limitations expired.

Defendants demurred on statute of limitations grounds.  The trial court's tentative ruling sustained the demurrer without leave to amend.  But at the hearing, the trial court granted plaintiffs 60 days to file a motion to amend the filing date nunc pro tunc under rule 2.304, subdivision (d).  When plaintiffs dutifully filed their motion, defendant objected on the grounds that the supporting declaration submitted as to timeliness of the June 28 fax filing should be excluded.  The reason?  Because the declarant-attorney (Ms. Mito) was also one of the plaintiffs, so could not satisfy the "At the time of transmission I was at least 18 years of age and not a party to this legal proceeding" language required of declarants by rule 2.304 subdivision (d).

So the trial court denied the motion.  Do not pass go.

The Court of Appeal reversed.  After observing that plaintiffs failed to argue in the trial court that their original June 24, 2008 filing was timely, the appellate court reached that issue anyway.  It did so under the doctrine that an appellate court may decide pure questions of law based on undisputed facts and that the original filings were part of the record.  It then held that rule 3.220 subdivision (c) prohibited the court clerk from rejecting the filing for failure to comply with the local rules.  "So long as a complaint complies with state requirements, the clerk has a ministerial duty to file."  The lower courts retain their right to levy lesser, appropriate sanctions.

Lessons?  Don't get into car accidents with lawyers?  Don't file anything less than a week before the statute runs?  Preserve issues for appeal by raising them in the trial court?  Even if they weren't raised below, raise them on appeal?  How about check the local rules, not just the California Rules of Court?  After all, the appellate court's "get out of jail free" card was not exactly free.  It has been two years and additional trial and appellate court briefings since that fateful fax filing. 

There's rules and there's rules.

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No, not that word. I am referring to "mistake" as in "mistake, inadvertence, surprise or neglect." On August 5th, the Fifth Appellate District issued an opinion in Henderson v. Pacific Gas & Electric 2010 Cal.App. LEXIS 1368. There, plaintiff's counsel "waited until the eleventh hour to begin opposing a summary judgment motion he had known about for months . . . assigned the preparation of that opposition to a paralegal who he failed to supervise." And when the paralegal left town the day before the opposition was due, promising to get it done despite heading for a cruise ship, counsel "hoped for a miracle instead of immediately going to court to request an extension of time."

The trial court found belated attempts to file pieces of opposition untimely. It also granted summary judgment for PG&E. Nothing to worry about. That's where Code of Civil Procedure section 473 subdivision (b) comes in right?

Um, no. As Henderson reminds us, the majority of appellate courts take the view that the "mandatory relief" provision of 473 subdivision (b) does not apply to summary judgment motions. This provision, also referred to as the "attorney fault" provision, requires a court to grant relief so long as the attorney files an affidavit falling on the sword. The policy is to avoid unjust results where due to an attorney's inexcusable failure to act, a party loses its day in court. But, as Henderson observes, by its express terms, the mandatory relief provision only applies to defaults, default judgments or dismissals. And while some appellate courts have taken a broader view, the majority have characterized such decisions as "understandable, yet ultimately misguided quests to salvage cases lost by inept attorneys" applying the mandatory relief provision "far beyond the limited confines the Legislature intended."  (English v. Ikon Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 148.) 

Of course, that leaves the discretionary provision of 473 (b) where a court "may" grant relief from a "judgment, dismissal, order, or other proceeding" due to "mistake, inadvertence, surprise, or excusable neglect." (Italics added.) Certainly, by its terms, relief here applies to more than the mandatory relief provision's "default, default judgment or dismissal."  But note the word "excusable" in the discretionary relief provision? Courts have interpreted it to mean that excusable mistakes are only those that can happen to any non-lawyer, not mistakes falling below the standard of care. Such mistakes include computers crashing, fax machines jamming, erroneous addresses on envelopes, that sort of thing.

But in Henderson, the Fifth District concludes that the trial court did not abuse its discretion in denying relief because, "a reasonably prudent  person . . . upon learning that the opposition would not be available to review before filing, [would not] simply wait to see if in fact the opposition is filed." Such conduct by an attorney is not only inexcusable, it falls below the standard of care.

And those last three words bring us back to the title of this post. 

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Mercifully, the Supreme Court has ended the summary judgment evidence ruling waiver debate. The waiver issue arose out of Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, Ann M. v. Pacific Plaza Shopping Center] (1993) 6 Cal.4th 666 and Sharon P. v. Arman Ltd. (1999) 21 Cal.4th 1181. Last week, in Reid v. Google Inc. 2010 Cal. LEXIS 7544, the Supreme Court held that as long as evidence objections are made in writing or orally at the hearing, trial court failure to rule on them does not result in waiver on appeal. Amen.

In Biljac, plaintiffs filed voluminous evidence objections opposing summary judgment. The trial court refused to make formal rulings, calling such work “a horrendous, incredibly time-consuming task.” The First District held that express evidentiary rulings aren’t necessary because review is de novo, and “the parties remain free to press their admissibility arguments on appeal.” Since then, trial courts often refused to make express rulings, instead citing Biljac and stating that only competent and admissible evidence was considered.

But the real menace was waiver of the objections on appeal. For Biljac was soon shackled sub silentio by the Supreme Court in Ann M. There, ruling without any discussion of Biljac, the high court held that “because counsel failed to obtain rulings, the objections are waived and are not preserved for appeal.” Sharon P. followed, confirming the waiver principle.  But going forward, some appellate courts strictly adhered to the waiver rule, some did not.

Reid holds that "the trial court’s failure to rule expressly on any of Google’s evidentiary objections did not waive them on appeal." Reid concludes that “written evidentiary objections made [before] the hearing, as well as oral objections made at the hearing are deemed made ‘at the hearing’ [for purposes of CCP section 437c (b) (5)] …so that either method of objection avoids waiver.” And, Reid emphasized, “trial court[s] must rule expressly on those objections.”

What about the lawyers? As one appellate court put it, all too often, “litigants file blunderbuss objections to virtually every item of evidence submitted.” (Demps v. San Francisco Housing Authority (1st Dist. 2007) 149 Cal.App.4th 564, fn. 6.) As another put it, filing “innumerable objections…as part of the all-out artillery exchange that summary judgment has become” should be avoided. (Mamou v. Trendwest Resorts Inc. (6th Dist. 2008) 165 Cal.App.4th 686, 711-712.) Instead, as amicus curiae California Academy of Appellate Lawyers put it in Reid, “facilitate [meaningful rulings] by choosing [your] battles wisely and only objecting to evidence when it matters.”

Reid eradicates a waiver penalty that was particularly unfair given that, “the objector must yell and scream and stamp his feet…to [try to] force the trial court to rule on those objections.” (Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 714 (Vogel J., dissenting).) Choose evidence objections carefully, submit them in proper written form and focus the trial court on them during the hearing. If counsel takes this approach, no kicking and screaming in the courtroom should be necessary. And perhaps, no hair pulling, in chambers.

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Depositions. Place where zealous advocacy and misconduct are frequent companions. Or does it depend on where you are sitting? On July 29, the First District affirmed in part and reversed in part an appeal from discovery sanctions. Translation, somebody was "misbehavin."

The case is Tucker v. Pacific Bell Mobile Services, 2010 Cal.App. LEXIS 1255. After passing the deponent notes to read during the deposition, and instructing the deponent not to answer questions about the notes, on-the-record colloquies included the following "highlight." 

Deposing Lawyer: In the number of years I've been doing this, I have never had a witness -- I have never even seen a suggestion of a witness reviewing, while a question is being framed, material written by counsel for that witness.

Defending Lawyer:  I suggest maybe you need more seasoning. Maybe you haven't been a lawyer long enough.

After further contentious exchanges about defending lawyer's conduct, defending lawyer instructed his client not to answer questions about the allegations in the complaint, on the grounds that they called for a legal conclusion or concerned the merits of plaintiffs' claims!  Objection, allowing my client to answer may provide evidence!  Hmnn...

After the smoke cleared, deposing lawyer asked defending lawyer to stipulate to a discovery referee and other conditions.  Defending lawyer's response?

"As General McAuliffe stated to the Germans at Bastogne in December, 1944: 'Nuts!'"

I guess that's the "all's fair in love and war" interpretation of the Code of Civil Procedure.  Deposing counsel moved for sanctions under Code of Civil Procedure section 2030.030.  The trial court awarded sanctions of $7,500 which included costs for "further deposing the plaintiff."

So what does Tucker stand for?  First, an order awarding sanctions greater than $5,000 is directly appealable. (Code Civ. Proc. section 904.1, subd. (a) (12).) Second, discovery orders are generally reviewed for abuse of discretion. Third, a party does not have to move for an order compelling deposition responses (under section 2025.480) prior to moving for sanctions under section 2023.030. Fourth, the operative phrase in section 2023.030 subdivision (a) is "incurred by anyone." Therefore, trial courts can award sanctions for "reasonable expenses . . . incurred" by a party as the result of discovery abuse, but not for "costs related to the taking of a future deposition." Tucker remanded the matter to the trial court to recalculate the amount of sanctions limited to expenses actually incurred.

Tucker tells the party that was the victim of discovery abuse that some of the cost of that abuse will be absorbed by the victim.  After all, the deposition do-over is caused by the misconduct.  I suppose clever lawyers will find a way to recoup those costs, don't you?

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Understandably eclipsed in the wake of Ronald George's retirement and Tani Cantil-Sakauye's nomination to take the reins as chief justice, was another similar announcement.  Third District presiding justice, Arthur Scotland, is also retiring. As anyone who has ever argued before him can tell you, Scotland is the epitome of a gentleman. No matter how hectic the calendar or how far afield the oralist wandered, Justice Scotland was always patient and thoughtful. He delivered even the most skeptical questions with respect, never disdain.

Scotland has been captain of the ship at the Third District since 1998. His last day will be September 17. But his exemplary legal career is only part of the story, here is a sample from the Court of Appeal website:

"Active in his community, Justice Scotland was named Humanitarian of the Year in 2002 by the Sacramento County Bar Association for his volunteer work on behalf of the Sacramento Children's Home, a residential and treatment facility for abused and neglected children. He also received a Community Service Award from the Center for Youth Citizenship for his volunteer work helping to educate school children about our legal system . . . In 2005, he received a public service award from the American Board of Trial Advocates, Sacramento Valley Chapter, for 'having tirelessly given his time and effort to make the community we live in a better place for those less fortunate and in need.' In 2007, the University of the Pacific, McGeorge School of Law, presented him with its Volunteer Leadership Award. And in 2008, Friends CARE (Children in At Risk Environments) honored him with an award for his 'continued support of the children left behind.'"

Wow. 

Arguing in the court of appeal up and down the state, one collects many anecdotes. The one I remember most about Justice Scotland is this: last summer, while I was waiting to argue as respondent, the panel was becoming impatient with appellant's counsel's long-winded start. Justice Scotland waited for counsel to take a deep breath, and then ever so gently, focused the issue: "Well counsel, your suit stands or falls on the statute of limitations, right?" Taking the cue, counsel got to what really mattered.

Of course, during any stint as presiding justice there will be critics. Others can write those stories. The appellate bench and bar will sorely miss a true gentleman and fine jurist. One thing will remain, Justice Scotland's legacy: Nice guys finish first.

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