May 2020 Update
There have been a number of developments since the publication of the 2019 update to this practice guide.
We updated all California Rules of Court citations and Judicial Council forms throughout the guide. We also updated all citations to rules of the appellate district courts and the California Supreme Court. Effective January 1, 2020, the Judicial Council issued new statewide uniform rules governing the format of documents filed electronically in the courts of appeal. See Cal Rules of Ct 8.74. Unlike the courts of appeal, the California Supreme Court is still phasing in mandatory e-filing. Practitioners should check the court’s website at https://www.courts.ca.gov/24590.htm to determine which documents must be electronically filed.
Prospects of success on appeal. In Ryan v Real Estate of the Pac., Inc. (2019) 32 CA5th 637, appellants were permitted to argue for the first time on appeal that, under the “common knowledge theory,” an expert witness was not needed to establish a real estate broker’s standard of care, because new questions of law based on undisputed facts may be raised in the court of appeal. See §§2A.71, 4.6.
Posttrial motions. In ENA North Beach, Inc. v 524 Union Street (2019) 43 CA5th 195, the court of appeal held that the trial court could not reduce a punitive damages award without first finding that it exceeded the maximum permitted by constitutional due process. See §2.48.
Appealable judgments and orders. Although stipulated judgments are generally not appealable, in Machado v Myers (2019) 39 CA5th 779, the court reviewed a judgment titled “on stipulation” because it differed from the terms of the parties’ stipulated settlement. See §3.36.
In Williams v Impax Labs., Inc. (2019) 41 CA5th 1060, the court of appeal held that because plaintiff did not file a timely appeal from a “death knell” order striking class allegations from the complaint with leave to amend, a later appeal was foreclosed when the trial court struck the class allegations from the amended complaint. See §3.53.
In Hanna v Mercedes-Benz USA, LLC (2019) 36 CA5th 493, an order awarding attorney fees and costs, entered after an order of dismissal following acceptance of a CCP §998 offer, was appealable both as a collateral ruling and as an order made after an appealable order or judgment. See §3.57.
In Alaama v Presbyterian Intercommunity Hosp., Inc. (2019) 40 CA5th 55, the court of appeal held that an order resolving some causes of action was appealable, even though the remaining causes of action were dismissed without prejudice; the question is whether there was any agreement for future litigation, not whether the dismissal was without prejudice. See §3.36.
Courts continue to be split on the issue of whether an order compelling third party discovery responses in postjudgment collection proceedings is an appealable final order. See Dalessandro v Mitchell (2019) 43 CA5th 1088 (appeal treated as writ petition), Shrewsbury Mgmt., Inc. v Superior Court (2019) 32 CA5th 1213 (same), and Marriage of Tim & Wong (2019) 32 CA5th 1049 (order not appealable under circumstances; appeal not treated as writ petition), discussed in §3.69.
In Rostack Invs., Inc. v Sabella (2019) 32 CA5th 70, the court of appeal noted the weight of authority holding that an order taxing appellate costs (or denying such a motion for such an order) is appealable as a postjudgment order although the action remains to be tried on remand. See §3.71.
In City of Santa Maria v Adam (2019) 43 CA5th 152, a postjudgment order denying a motion to clarify the judgment was appealable when it raised issues distinct from the issues on appeal from the judgment. See §3.74.
The Sixth District Court of Appeal in Global Protein Prods., Inc. v Le (2019) 42 CA5th 352 followed Tate v Wilburn (2010) 184 CA4th 150 to hold that, under amended CCP §1008, an order denying a motion for reconsideration under CCP §1008(b) (renewed motion) is not separately appealable. See §3.74.
Several cases interpreted CCP §904.1(a)(6), which provides for appeal from an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction. See Bustos v Wells Fargo Bank, N.A. (2019) 39 CA5th 369 (temporary restraining order is appealable), Brown v Upside Gading, LP (2019) 42 CA5th 140 (order that simply controls litigation proceedings not injunction and therefore not appealable), and O&C Creditors Group, LLC v Stephens & Stephens XII, LLC (2019) 42 CA5th 546 (discovery order not appealable, despite motion’s label as “preliminary injunction motion”; substance of motion, not label, controls), discussed in §3.81.
In Doe v Superior Court (2019) 36 CA 5th 199, the court of appeal advised that, although an order granting a motion to disqualify a lawyer is appealable, review by way of a writ petition is also proper and may be preferable. See §3.86.
Appealability of orders dismissing or denying a petition to compel arbitration continued to be an issue in several published cases. Compare Muller v Roy Miller Freight Lines, LLC (2019) 34 CA5th 1056 (portion of order denying petition to compel arbitration as to one cause of action was appealable), with J.H. Boyd Enters., Inc. v Boyd (2019) 39 CA5th 802 (order denying motion for judicial reference was not appealable, and there was no ancillary appellate jurisdiction under CCP §1294.2 in connection with order denying motion to compel arbitration), and Levinson Arshonsky & Kurtz LLP v Kim (2019) 35 CA5th 896 (CCP §1294(a) does not apply to order denying motion to compel arbitration of attorney fee dispute under Mandatory Fee Arbitration Act (Bus & P C §§6200–6206)).
In Lacayo v Catalina Restaurant Group Inc. (2019) 38 CA5th 244, the court of appeal held that an order compelling arbitration and denying a motion to dismiss class claims, leaving the question of availability of classwide arbitration to the arbitrator, was not appealable. See §3.94.
In Workman v Colichman (2019) 33 CA5th 1039, the court of appeal held that an order awarding attorney fees to a prevailing party on an anti-SLAPP motion was appealable under both CCP §§425.16(i) and 904.1(a)(13). See §3.99.
Staying enforcement. Effective January 1, 2020, the legislature enacted CCP §695.215 to clarify that payment of an uncontested, severable portion of a money judgment, including interest and costs, does not constitute a waiver of the right to appeal the contested portion of the judgment. CCP §695.215. See §6.11.
In Kennedy v Superior Court (2019) 36 CA5th 306, the court of appeal held that the automatic stay provisions of CCP §§916–917.9 did not apply to a proceeding to enforce an administrative subpoena of a doctor’s patient records. See §6.19.
Filing the notice of appeal. In In re J.F. (2019) 39 CA5th 70, the court of appeal could not liberally construe an order terminating parental rights to include an earlier, appealable order denying the parent’s request to modify visitation. See §§7.5, 7.10.
In Cheveldave v Tri Palms Unified Owners Ass’n (2018) 27 CA5th 1202, the court of appeal construed an appeal from an order granting an anti-SLAPP motion to encompass a subsequent attorney fee award because in its order the trial court cited the statute authorizing fees. See §7.5.
In K.J. v Los Angeles Unified Sch. Dist. (2020) 8 C5th 875, the California Supreme Court held that a notice of appeal from a sanctions order should have been construed to include an omitted attorney as an appellant when it was reasonably clear that the attorney intended to join in the appeal and the respondent was not misled or prejudiced by the omission. See §7.8.
In Davis v Mariposa County Bd. of Supervisors (2019) 38 CA5th 1048, the court of appeal held that the 30-day deadline in CCP §870(b) for filing a notice of appeal applied to an action challenging a county’s fire suppression assessment under Govt C §50078.17. See §7.52.
Filing cross-appeals. In Valentine v Plum Healthcare Group, LLC (2019) 37 CA5th 1076, the trial court denied defendant’s petition to compel arbitration, although one plaintiff’s claims were arbitrable, to avoid the possibility of conflicting rulings on a common issue of law or fact. When defendants appealed, the plaintiff/respondent failed to file a cross-appeal and so forfeited his argument that the trial court erred in finding his claims were subject to arbitration.
In Mercury Ins. Co. v Lara (2019) 35 CA5th 82, the respondent did not need to file a cross-appeal for the court of appeal to consider an alternative legal theory on which the judgment could be affirmed, i.e., that a state insurance commission’s compliance proceeding should have been dismissed not on the merits but because of due process violations. See §8.4.
Designating the record. In Korman v Princess Cruise Lines, Ltd. (2019) 32 CA5th 206, the court of appeal held that the lack of a reporter’s transcript did not warrant affirmance based on an inadequate record because appellant’s challenge to the trial court’s decision did not rely on any evidence presented or the trial court’s findings or statements made at the hearing. See §9.2.
Effective January 1, 2020, the Judicial Council issued new statewide uniform rules governing the format of documents filed electronically in the courts of appeal. See Cal Rules of Ct 8.74. For example, the filing limitation for appendixes is ten electronic files of 25 MB each, but multiple appendix volumes may be combined in one filing. See §9.96.
Appeals in limited and small claims cases. In 1550 Laurel Owner’s Ass’n v Appellate Div. of Superior Court (2018) 28 CA5th 1146, the court of appeal held that anti-SLAPP motions cannot be brought in limited cases and therefore the appellate division of the superior court does not have jurisdiction to review orders on such motions. See §10.7.
The Judicial Council has published new rules governing waiver of oral argument in the appellate division of the superior court. See Cal Rules of Ct 8.885(d), discussed in §10.110.
In Pacific Pioneer Ins. Co. v Superior Court (2020) 44 CA5th 890, the court of appeal held that a defendant’s insurer has the right to appeal a small claims judgment even if the insured defendant failed to appear in court. See §10.158.
Motions and applications. In In re B.D. (2019) 35 CA5th 803, the court of appeal granted appellant’s CCP §909 motion to receive additional evidence in light of the parties’ stipulation that postjudgment evidence completely undermined a juvenile court’s order terminating parental rights and finding a minor adoptable. See §11.66.
Filing briefs. In Hernandez v First Student, Inc. (2019) 37 CA5th 270, the court of appeal held that the appellants forfeited multiple claims by failing to make adequate record citations, provide legal authorities and argument, and include a claim in the heading of their brief. See §§12.19, 12.39.
In Orozco v WPV San Jose, LLC (2019) 36 CA5th 375, the court of appeal found that appellant’s failure to summarize all the evidence, when arguing in its brief that there was insufficient evidence to support a jury finding, did not meet the standard of fairness but was not so egregious as to warrant forfeiture of appellant’s claim. See §12.47.
In Davis v TWC Dealer Group, Inc. (2019) 41 CA5th 662, published by the First District to stress the importance of counsel’s duty of candor, appellant violated Cal Rules of Prof Cond 3.3(a)(2) by failing to inform the court of an adverse case filed shortly after briefing was completed and squarely on point with the issue in appeal. In addition, appellant’s brief selectively quoted from the record, using long ellipses to misrepresent the content of contracts at issue. See §§12.65, 13.9, 13.14.
Settlement on appeal. In In re B.D. (2019) 35 CA5th 803, the court of appeal declined to accept a stipulated reversal of a judgment terminating parental rights in light of the risk to public trust in the judiciary and the benefit of a published opinion illustrating a child welfare agency’s failure to comply with its statutory duties. See §15.37.
Oral argument. Effective August 2019, the First District Court of Appeal gave appellate panels the discretion to issue tentative opinions in cases scheduled for oral argument, and some divisions immediately started using the procedure. When a tentative opinion is issued, oral argument remains calendared unless it is waived by all parties. 1st App Dist Local R 15(b). See §16.17.
Decision on the merits. In Rel v Pacific Bell Mobile Servs. (2019) 33 CA5th 882, the court of appeal held that appellate decisions reversing “death knell” orders in class actions do not trigger CCP §583.320(a)(3)’s 3-year extension to bring an action to trial. See §17.78.
Petition for rehearing. Effective January 1, 2020, the word limit for a petition for rehearing (or answer) is 7000 words, including footnotes, not the 14,000-word limit applicable to briefs. Cal Rules of Ct 8.204(c)(5). See §19.15.
Costs and attorney fees. In Lopez v Hillshire Brands Co. (2019) 41 CA5th 679, the parties were ordered to bear their own costs on appeal because each party prevailed in defending an aspect of the judgment in its favor. See §20.5. However, an order for the parties to bear their own costs is not a prevailing party determination for the purpose of awarding attorney fees. See de la Carriere v Greene (2019) 39 CA5th 270 and Friends of Spring St. v Nevada City (2019) 33 CA5th 1092, discussed in §20.9.
In Rostack Invs., Inc. v Sabella (2019) 32 CA5th 70, the court of appeal held that when a prevailing party seeks to recover the costs of procuring a surety bond, lost opportunity costs are an appropriate factor to consider in determining the reasonableness and necessity of the method selected to bond the judgment. See §20.15.
Sanctions. In Herriott v Herriott (2019) 33 CA5th 212, the court of appeal refrained from sanctioning a party under Fam C §3111(d) and Cal Rules of Ct 8.276 by attaching a confidential child custody report to an appellate brief because sanctions would have imposed an unreasonable financial burden on the disclosing party. See §20.37.
In Workman v Colichman (2019) 33 CA5th 1039, an appeal from denial of an anti-SLAPP motion was held frivolous when the motion had no merit and the appeal was taken solely for purposes of delay, and the court of appeal ordered appellant to pay sanctions to respondent and to the court. See §§20.41, 20.44, 20.59.
In J.B.B. Inv. Partners Ltd. v Fair (2019) 37 CA5th 1, applying a “clear and convincing evidence” standard for imposing sanctions under CCP §907 and Cal Rules of Ct 8.276, the court of appeal sanctioned appellants and their attorneys for disputing the existence of a settlement which appellants had agreed to in writing several times, asserting patently false claims of threatened criminal action by opposing counsel, and offering misleading partial quotes from case law and from the court’s prior opinion in their briefing. See §§2.44, 20.45.
Citing of opinions. In DeLisi v Lam (2019) 39 CA5th 663, the court of appeal, considering an issue of first impression, noted that published decisions of the superior court appellate division have precedential value. See §10.120.
Review by the California Supreme Court. Chapter 22 was updated with the most recent court statistics indicating that the odds of obtaining a full grant of review by the California Supreme Court are less than 2 percent. See the Judicial Council of California, 2019 Court Statistics Report, discussed in §22.4.
The supreme court is adopting mandatory e-filing in phases. It is essential to check the court’s website at https://www.courts.ca.gov/24590.htm for updates to these rules, including the list of documents which must be electronically filed. See California Supreme Court Rules Regarding Electronic Filing, Rule 3, discussed in §22.19.
Request for decision to the supreme court. New case examples illustrate how the Ninth Circuit may be receptive to certification requests when the issue will affect a large number of cases (Frlekin v Apple, Inc. (9th Cir 2018) 870 F3d 867), a novel fact pattern is involved with a statute of substantial public import (Ixchel Pharma, LLC v Biogen (9th Cir 2019) 930 F3d 1031), or there are competing public policies and a lack of on-point case law (Busker v Wabtec Corp. (9th Cir 2018) 903 F3d 881). See §23.8.
Cole v CRST Van Expedited, Inc. (9th Cir 2019) 932 F3d 871 illustrates how a party opposing a certification request made in a federal appellate court or before the California Supreme Court can facilitate a denial by emphasizing how settled law provides an adequate foundation to answer the question. See §23.20.