Footnotes in appellate decisions are often the repository of somewhat offbeat analysis, and a comment in Villacorta v. Cemex Cement (E054329), published today by Division Two of the Fourth District Court of Appeal, is no exception. The Court begins by analyzing a challenge to the substantiality of the evidence supporting a verdict — a type of argument that does not require an objection in the trial court — and then moves on to analyzing the question of whether wages earned by an individual in a new job must be used to offset damages in a wrongful termination claim. Apparently this question was never brought up below, because the Court drops a footnote stating “Although this argument does not comport with a substantial evidence assertion, we will address the issue because it is easily resolved.“ (Emphasis added.)
Hmmm. As an attorney who is usually on the side of the appellant, I love this idea (and you may be sure that it will be squirreled away for future use). But there are an awful lot of “easily resolved” issues that are normally forfeited if they aren’t the subject of any objection in the trial court.
I’m late on this, but just a quick post to note that the California Supreme Court granted review on 11/26 in Barry v. State Bar of California, which has to do with whether a civil defendant can get attorney fees after prevailing in an Anti-SLAPP motion on the grounds that the court lacks subject matter jurisdiction over the claim.
Attorney fees can add an extra chill to a loss via anti-SLAPP motion.
The Second District Court of Appeal had concluded that “Because the trial court had no jurisdiction to rule on the anti-SLAPP motion, it also lacked jurisdiction to award attorney fees under [Code of Civil Procedure] section 425.16, subdivision (c),” but we’ll see if the CSC agrees on that point.
One thing you don’t want to be as an appellate lawyer is the guy (or gal) whose appellate brief generates the following commentary from the Court of Appeal:
[P]laintiffs simply argued that they “clearly were prejudiced by this error” in the instructions regarding public nuisance. By relying on this conclusory assertion of prejudice, plaintiffs (1) failed to articulate the more favorable result that they believe would have been achieved in the absence of the instructional error and (2) failed to analyze the factors (i.e., the evidence, counsel’s argument, the other instructions and special verdicts) that are used to assess whether that more favorable result was a reasonably [sic] probability.
Therefore, plaintiffs’ opening brief failed to carry their burden of affirmatively demonstrating the existence of a prejudicial error.
Ouch! That’s a snippet from Adams v. MHC Colony Park Limited (F062160), published Tuesday by the Fifth District Court of Appeal. Fortunately for the appellant, the Reply Brief did manage to advance what the Court of Appeal called “the starting point of a prejudice analysis,” but (as one might guess from the tone of the passage quoted above) the ultimate effect of this additional briefing was none too persuasive.
Don’t just tell the court that prejudice occurred. Ya gotta show it. Both because that’s what readers find persuasive and because that’s what the law requires before any reversal can happen.
Can non-humans invoke the right of habeas corpus? That’s the question teed up by a suit noted by the Wall Street Journal Law Blog, which was filed on behalf of Tommy, a chimpanzee being held in a cage in a private property in New York. (The New York Post also has coverage of the suit.)
The plaintiff in the case is the Nonhuman Rights Project, which is a nonprofit that, according to its website, advocates “to change the common law status of at least some nonhuman animals from mere ‘things,’ which lack the capacity to possess any legal right, to ‘persons,’ who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them.”
While the argument that a chimpanzee can invoke the right to habeas may seem outlandish, it’s worth remembering that habeas is a flexible remedy whose scope has frequently been the subject of debate, perhaps most notably (in recent times) in the 2008 case of Boumediene v. Bush, which concluded that even non-citizens designated as “enemy combatants” and held in captivity in Guantanamo Bay, Cuba, had the right to pursue relief via habeas in American courts. Justice Scalia memorably characterized that holding as a “crazy result,” so the argument on behalf of Tommy seems to be in good company. (The Nonhuman Rights Project’s case is filed under New York rather than federal law.)
Some federal judges seem to relish the layers of deference that are involved in performing habeas review of state court decisions, layers that (as a practical matter) allow most outcomes to be upheld on the theory that they aren’t “unreasonable” enough to surmount the procedural bars erected by the AEDPA.
In a decision published yesterday by a Ninth Circuit panel, however, Judge Paul Watford signals a note of discomfort with the deferential posture he’s required to adopt in habeas review. In his concurrence in Long v. Johnson, 12-55820, Judge Watford flatly states that he has “grave doubts about whether the State has convicted the right person in this case.” However, it’s a habeas review of a state court decision that was itself an evidentiary review of the jury’s factual determination, so the degree of deference that is owed to that initial factual call really is significant.
Does the fact that a court makes a point in a footnote, as opposed to in the body of the opinion, make the point less meaningful as precedent? Perhaps, according to a comment in All Towing Services v. City of Orange (G047336), published today by Division Three of the Fourth District Court of Appeal. The Court of Appeal refers to a comment in an earlier opinion, with which it disagrees, and suggests that the comment must not have been well considered because the earlier “court devoted little analysis to the [issue], quickly passing over it in a footnot[e].”
“Such cursory treatment,” the Court of Appeal continues, “affords little confidence in the pronouncement.”
Apparently the key is to have a good statute of limitations defense, if any guidance can be derived from the unpublished case of Shneyder v. Sokolovsky, out today from Division Two of the Second District Court of Appeal. The case concerns the statute of limitations for pursuing a breach of contract claim from an oral contract. The appellant went down in flames despite being represented by a fairly prominent L.A.-area firm that shall remain nameless, and, perhaps more notably, in spite of the fact that respondent never bothered to file a brief (see footnote one of the opinion). Some facts are just tough to argue around, and the statute of limitations is one of them.
One of the thrills of being an appellate lawyer is getting to write sentences such as “the broad federal definition of ‘margarine’ is substantially identical to the state definition of ‘spread’ . . . .” That scintillating line appeared in the appellant’s briefing in Simpson v. Kroger Corp., published Wednesday by Division Four of the Second District Court of Appeal, where the appellant argued that the labeling on Challenge Spreadable Butter was legally inadequate. That argument went down in flames on appeal in a decision that is notable for an appendix including actual images of the labels from butter (or quasi-butter) in question. When the label looks like this, the best lawyering in the world probably won’t save a claim that you thought you were buying pure butter.
As has been extensively discussed in the media (LA Times coverage here), the California Supreme Court held Monday that California’s laws on medical marijuana do not bar local communities from prohibiting the creation of marijuana dispensaries. The case is Riverside v. Inland Empire Patients Health and Wellness Center.
A small but interesting point, to my eye, is the discussion of the limited value of the Legislature’s assertion of its “aims” in enacting the Medical Marijuana Program (MMP) in interpreting the substantive provisions of the statute. Dispensary proponents had emphasized that the Legislature described fairly broad goals of ensuring that medical marijuana patients have access to marijuana, and argued that this aim implied preemption of local authority to regulate dispensaries. Not so fast, says the California Supreme Court: “We cannot employ the Legislature‘s expansive declaration of aims to stretch the MMP‘s effect beyond a reasonable construction of its substantive provisions.” In other words, the expression of Legislative intent only goes so far, and a statute doesn’t necessarily accomplish a goal merely because it describes that goal.
This decision in the CSC comes on the heels of, and reinforces, the pair of cases from the Courts of Appeal that were mentioned in the previous post.
California has adopted fairly robust laws permitting individuals to use marijuana for medical purposes, but many municipalities are not fond of medical marijuana dispensaries. And the municipalities are frequently getting the final word on the subject. Two different districts of the California Court of Appeal recently published cases involving losses for dispensary proponents — City of Tulare v. Nunes (F063555), from the Fifth District Court of Appeal, and City of Monterey v. Carrnshimba (H036475), from the Sixth District Court of Appeal — with each case turning on the interplay between the protections for medical marijuana users on the one hand and the municipality’s power to set zoning regulations on the other hand. The implications of the cases go beyond the realm of medical marijuana because they contain language strongly affirming municipal regulatory power.
Carrnshimba, which was originally issued on March 27 and has now been published, is also interesting from a procedural perspective because of the arc of analysis. The basic issue in the case had to do with whether the city of Monterey could retroactively apply a dispensary moratorium to a dispensary that had been created prior to the enactment of the moratorium. But the Court of Appeal resolves the case by noting that the dispensary violated the City Code even before the moratorium was enacted — a point that was not the basis for granting summary judgment below. The Court of Appeal includes this footnote discussing the procedural issue:
Code of Civil Procedure section 437c, subdivision (m)(2) provides in part: ―Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs.‖ In this case, our affirmance of the trial court‘s grant of summary judgment is in part on a ground not relied upon by the trial court, i.e., that the operation of a Dispensary was not a permitted use under the pre-moratorium City Code. Both parties in fact fully briefed this issue on appeal, and appellants, in doing so, specifically requested that we decide the question. It is therefore debatable whether a supplemental briefing notice is required. (See Bains v. Moores (2009) 172 Cal.App.4th 445, 471, fn. 39; Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1147.) But we nonetheless notified the parties that they could elect to submit supplemental briefing on this issue. Monterey submitted a supplemental brief, which we have considered.