Not To Be Published (6/20/23)

tl;dr:

--?Court allows losing party to dismiss appeal after unfavorable tentative.

-- Can a judge just stay a money judgment?.

-- A Tranquil High Court? And other legal cases & trends this week ending June 16, 2023.

--?When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused (published at CEB).

--?San Berdo Supervisor Challenge Not Moot, Split Appellate Court Holds.

-- New Cal.App.Law.Pod episode?w/?Jennifer Novak on Representing the Environment in Court.

Dear Colleagues:

Each week, I look for cases presenting a likelihood to shock, surprise, puzzle, inform, anger, or elate. The summaries are mine, the reactions are yours. If you would like to share your reactions, or provide a tip, email me at?[email protected].

And I am always happy to talk about these kinds of issues in your cases.

–Tim Kowal

Court allows losing party to dismiss appeal after unfavorable tentative

After the record is filed on appeal, you no longer have an absolute right to dismiss the appeal. So if you decide that the the appeal is not worth the risk of attorneys’ fees or bad precedent, you have to request a dismissal. And last month, the Court of Appeal cautioned that if you wait until the court issues its tentative opinion, it’s probably going to be too late. My plea was: not many courts do litigants the favor of issuing tentatives, so please don’t abuse it. Requesting dismissal after an unfavorable tentative risks ruining it for the rest of us.

But the court in Northgate Gonzalez, LLC v. Realm Real Estate, LLC (D4d2 Jun. 16, 2023 No. E078106) 2023 WL 4042678 (nonpub. opn.) didn’t seem to mind. The trial court entered a preliminary injunction of a development project. After two-and-a-half years on appeal, the Court of Appeal issued a tentative opinion. But before oral argument, the trial court made its injunction permanent, thus mooting the appeal. So Realm requested dismissal, and the Court of Appeal granted it.

Realm already filed a new notice of appeal from the permanent injunction. (No indication which way the Court of Appeal’s tentative went, though.)

Takeaway: If you are appealing from a preliminary injunction, consider also file a petition for a writ of mandate. Otherwise, you might go through two years of briefing only to find your appeal is moot.

This is a summary. Read the full article at the?tvalaw.com?blog here.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y.

Can a judge just stay a money judgment?

Stays of judgment enforcement in California are governed by statute. There are basically only two ways to stay enforcement of a money judgment: (1) post a bond and file a notice of appeal, or (2) ask for a temporary stay under Code of Civil Procedure section 918 (but the stay only lasts until the deadline to file an appeal, plus 10 days).

So the indefinite stay of an immediately-enforceable sanctions order in Marriage of Bush (D4d3 Jun. 15, 2023 No. G061202) 2023 WL 4013349 (nonpub. opn.) was a little surprising. The court granted sanctions of $3,635 in favor of the husband against the wife. But until the court decided the property issues, it was still possible the ultimate judgment would wind up with the husband owing the wife. So the judge stayed enforcement of the money order.

Can the trial court do this? Just take an immediately enforceable order for the payment of money, and stay enforcement?

Yes, the Court of Appeal held. But the court did not explain why.

Comment: There is a key detail that, if changed, would require a different outcome. That detail is the amount of the discovery sanction of $3,635. If instead the amount was greater than $5,000, the sanction would have been immediately appealable. And in that case, the order could not have been stayed consistent with section 918 longer than 10 days after the deadline to appeal.

This is a summary. Read the full article at the?tvalaw.com?blog here.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y.

A Tranquil High Court? And other legal cases & trends this week ending June 16, 2023

Here are some legal trends and trivia from this week:

??U.S. Supreme Court: Liberal justices' 'dissent rate' lowest since Roberts joined in 2005.

??But women are underrepresented at oral argument at the Supreme Court: just 20 women—19% of the 103 total advocates— argued before the justices.

?Cal. Supreme Court is taking longer to decide its cases.

??But the Cal. Supreme Court ranks high in diversity, says the Brennan Center for Justice.

??Cal. Supreme Court bars treble damages against a public entity for child sex abuse coverup because government can’t be liable for punitive damages. The holding overrules three of the Court’s prior cases.

??But trial court was justified in imposing evidentiary sanctions on a school district for negligently erasing a videotape of a sexual assault on a student.

??Check your break room jukebox: The Ninth Circuit, reversing a trial court's dismissal, holds that it might well constitute sexual harassment for a business to play "sexually derogatory" or "misogynistic" music in the workplace.

??Who likes legalese? No one—not even lawyers. So researchers drilled down to the cause: the “copy-and-paste hypothesis”: lawyers imitate what previous lawyers have done because the legalese can be incorporated routinely into contracts drafted for clients.

??Look out, UC Berkeley: The “Berkeley Library” naming has been canceled by Ireland’s premier university, Trinity College. A NY Times piece on the change noted that the library’s namesake “owned slaves in colonial Rhode Island and wrote pamphlets supportive of slavery.” Unless you are prepared to yield everything, yield nothing.

This is a summary. Read the full article at the?tvalaw.com?blog here.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y.

When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused (published at CEB)

CEB has published my article, “When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused,” available here.?

The article is about the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The setup is that, when challenging an agency action via a writ of administrative mandamus, normally you have to assume the trial court’s ruling is the appealable order. But the Santa Cruz court permitted an appeal much later than that, when the appellant appealed from a statement of decision (which itself is usually not appealable).

The decision contradicts last year’s holding in Meinhardt v. City of Sunnyvale (2022) 76 Cal.App.5th 43 (but the Supreme Court granted review in Meinhardt).

My comment: It should make you nervous when courts are wishy-washy on appealability. Once the cases suggest an order might be appealable, you need to assume they are definitely appealable, because they’re treated as jurisdictional.

This is a summary. Read the full article at the?tvalaw.com?blog here.?

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y.

San Berdo Supervisor Challenge Not Moot, Split Appellate Court Holds

The voters of San Berdardino passed Measure K in 2020 to limit supervisors to a single four-year term at a monthly compensation of $5,000. The trial court invalidated Measure K as unconstitutional. But the Court of Appeal in San Bernardino County Board of Supervisors v. Monell (D2d4 May 25, 2023) --- Cal.Rptr.3d ---- held the term limit and pay cap were constitutional. (As to new supervisors, though, the pay cap will not apply.)

The procedural wrinkle was whether the appeal was mooted when, a new term- and pay-limit measure, Measure D, passed in 2022, totally superseding Measure K. Justice Menetrez thought Measure K was moot, and filed a dissent saying so. “[N]o matter what we do,” Justice Menetrez pointed out, “Measure K cannot go back into effect unless and until Measure D is invalidated.”

Justice Menetrez noted the court could simply stay this Measure K appeal pending resolution of the Measure D appeal, just in case Measure D were to be invalidated.

The majority rejected this, reasoning there “is not even any pending request for a stay.” But this statement is not entirely forthcoming because, as Justice Menetrez notes, the county had requested a stay, which was denied (over his objection).

But to give the majority the last word: “We see no reason why the [Measure D] appeal filed later should have precedence over the one filed earlier.”

The Takeaway: It can be almost impossible to predict how a Court of Appeal will come out on a question of mootness. And despite being a jurisdictional doctrine, mootness is almost completely discretionary.

This is a summary. Read the full article at the?tvalaw.com?blog here.?

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y.

Jennifer Novak on Representing the Environment in Court

As a former Deputy Attorney General with the California Department of Justice, Jennifer Novak now serves as a “Rosetta Stone” in her private practice translating complicated environmental rules to businesses and individuals in environmental disputes. Jennifer tells us her secrets how to convey complicated issues as a subject-matter specialist to generalists on the bench.

Then we discuss the March 2023 SCOTUS opinion Sackett v. EPA, which sided with a landowner against the EPA. The EPA’s jurisdiction in keeping our waters clean extends to the “waters of the United States,” or WOTUS. Can wetlands and unconnected waters be WOTUS? Under the EPA’s “significant nexus test,” the answer was yes. But the Court reversed and replaced the test with a “continuous surface connection” test.

Jennifer explains how the new test may still open the floodgates to more water litigation.

(Neither Jennifer nor Jeff laughed at that pun.)

Listen to the podcast here.

Video clips from the podcast are available here.

You can also subscribe to the California Appellate Law Podcast on your favorite podcast player.

_______________________

I am always happy to talk with you about these kinds of issues in your cases.

-Tim

Tim Kowal?helps trial attorneys and clients win their cases and?avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at?www.CALPodcast.com, and posts regular updates of appellate news and tips for trial attorneys at?www.tvalaw.com/articles. Contact Tim at?[email protected]?or (714) 641-1232.

Click here?to have future appellate tips emailed to you.