Not To Be Published (9/13/23)
Tip Summary:?
--?How to Preserve Appellate Rights in Your Arbitration Agreement.
--?If the appellate court issues a tentative opinion, do this.
--?An amended order suspends the right to appeal from the original order.
--?Appeal using the JC form Notice of Appeal nearly gets dismissed.
-- New Cal.App.Law.Pod episode?w/?Appeal Your Arbitrator?.
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
How to Preserve Appellate Rights in Your Arbitration Agreement
The worst thing about arbitration is the risk of winding up with a decision contrary to law, facts, and common sense—and, because it’s arbitration, having no meaningful recourse. But that’s just the tradeoff. Right?
Actually, that’s not the case. Back in 2008, the California Supreme Court held in Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334 that parties agreeing to arbitration may also agree that the award be subject to judicial review on the merits. So that’s just what the parties did in the recent case Hous. Auth. of City of Calexico v. Multi-Housing Tax Credit Partners XXIX, L.P. (D4d1 Aug. 28, 2023) No. D079967. But there was one thing the Supreme Court was not clear about: does the trial court have to review the arbitration award on the merits?
The trial court thought not. The trial court agreed that the parties had explicitly and unambiguously invoked their right to appellate review of the merits of the arbitration award. But the court still refused to review the merits, leaving that for the Court of Appeal.
That’s not the way review works, said the Fourth District, Division One. The California Constitution vests original jurisdiction in the Superior Courts, and that cannot be changed by stipulation.
Takeaway
Don’t overlook the option in your arbitration agreements to make them subject to judicial review. This is an option not available under the Federal Arbitration Act, but it is available under the California Arbitration Act. (Cable Connection, supra, 44 Cal.4th at p. 1339 (italics added), discussing Hall Street Associates, L.L.C. v. Mattel, Inc.?(2008)?552 U.S. 576, 578?(Hall Street) [“We hold that the statutory grounds are exclusive.”].) But the invocation of the right to merits review must be explicit and unambiguous
This is a summary. Read the full article at the?KowalLawGroup.com blog here.
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If the appellate court issues a tentative opinion, do this
I have yet to meet an attorney who would not welcome the appellate court providing a tentative opinion prior to oral argument. All upside, no downside, right?
There was a downside in Navellier v. Putnam (D1d5 Aug. 17, 2023) No. A166476 (reh’g denied with mods Aug. 30, 2023) (nonpub. opn.). The opinion was decided on an issue that arguably had not been briefed, and a rehearing must be granted when the appeal is decided on an unbriefed issue. (Gov. Code, § 68081.)
But the Court had issued a tentative opinion a month before oral argument. At that point, the Court noted, appellant should have requested leave to file a supplemental brief per California Rules of Court, rule 8.200(a)(4).
If the Court of Appeal issues a tentative opinion deciding your case on an unbriefed issue, you had better move under rule 8.200(a)(4) for leave to submit a supplemental brief. If you don’t, don’t count on relief in a petition for rehearing.
This is a summary. Read the full article at the?KowalLawGroup.com blog here.
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An amended order suspends the right to appeal from the original order
When a judge enters an order, and then later modifies the order, you would probably guess that you should appeal from the modified order. And you would be right. But now try this: Voiding the modified order reinstates the original order, and the time to appeal from the original order has expired. What now?
The answer in Sweeney v. Reg'l Water Quality Control Bd. (D1d3 Aug. 31, 2023) No. A166629 (nonpub. opn.) is: Actually, the time to appeal from the earlier order was suspended upon entry of the modified order. In other words, a modified order supersedes the prior order—including the right to appeal from that order.
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But what about the fact that the modified order was withdrawn? At that point, there could have been no operative appeal from the original order, because under the modified-order rule just cited, the earlier order was not even an appealable order. Once the modified order was withdrawn, then and only then did the earlier order become appealable again—but Sweeney did not file a notice of appeal.
No matter. Relying on In re Marriage of Micalizio (1988) 199 Cal.App.3d 662, 668-669 (Micalizio), the court explained that a modified judgment, even a void one, “superseded the first judgment and remained in effect as the operative judgment, suspending the time to appeal from the first judgment….” (Id. at p. 671.)
At most, the court concluded, Sweeney’s appeal from the first order was premature, not untimely. The court exercised its discretion to save the premature appeal.
(But don’t get this confused with the need to cross-appeal after a JNOV or new-trial order!)
There is also a good disentitlement-doctrine issue here, with a concurring opinion that the appeal should have been dismissed due to plaintiff’s willful refusal to comply with court orders.
This is a summary. Read the full article at the?KowalLawGroup.com blog here.
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Appeal using the JC form Notice of Appeal nearly gets dismissed
The Judicial Council provides a form Notice of Appeal. But be careful if you use this form because it asks for extra information that could be used to limit the scope of your appeal or cause you to appeal from the wrong order.
That is what nearly happened in Lacour v. Marshalls of California (D1d4 Aug. 29, 2023) No. A163920 (nonpub. opn.). The Judicial Council form asked the plaintiff, appealing after the defendant’s motion for judgment on the pleadings was granted, to check a box describing the type of judgment or order. Instead of selecting “Judgment of dismissal,” the plaintiff checked the box for “Other” and typed: “Motion for judgment on the pleadings.”
A-ha! said the defendant. A “motion for judgment on the pleadings”—and orders granting them—are not appealable orders. So the appeal should be dismissed.
The defendant had a point, given the rule about partial appeals. But that rule did not apply here because the notice of appeal identified the date of the judgment or order as the same date the judgment was entered. Although the notice of appeal reflected “some ambiguity,” notices of appeal must be construed liberally.
If you are in doubt about filling out the Judicial Council form, remember that it is an optional form. Consider using a bare bones form—you are not required to do more than identify the date of the order and the court that issued it.
This is a summary. Read the full article at the?KowalLawGroup.com blog here.
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Appeal Your Arbitrator?
We discuss some interesting recent cases out of the California Court of Appeal:
Then we discuss a survey that explains why lawyers still use legalese.
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.
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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 KowalLawGroup.com. Contact Tim at [email protected] or (949) 676-9989.
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