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............................................................Chapter 8: Appellate Review
.........................................................B. Appealability
1. Appealable Judgments and Orders
(a) One Final Judgment Rule
p. 845, Note 3(g), following Conley cite: An order denying
certification of a class action is considered a final order subject
to immediate appeal under the "death knell doctrine."
The appeal is permitted because "the action has in fact
and law come to an end, as far as the members of the alleged
class are concerned." The parameters of the death knell
doctrine are narrowly defined to encompass only orders denying
class certification. The doctrine does not apply to other class
action orders, such as orders granting certification or directing
service of notice to class members. Farwell v. Sunset Mesa Property
Owners Association, Inc., ___Cal.App.4th___, ___Cal.Rptr.3d___
(2008) [2008 WL 2440522].
.....(b) Interlocutory
Judgments and Orders
p. 850, Note 3, following Annette F. cite: See
also Morton v. Wagner, 156 Cal.App.4th 963, 67 Cal.Rptr.3d 818
(2007) (noting split of authority and aligning with the majority
of recent cases that have found orders denying motions for reconsideration
to be nonappealable).
.....(c) Collateral Orders
p. 856, new Note 8: Similar to the plaintiff in
Ponce-Bran who relied on the collateral order doctrine, a father
in a paternity and child support action argued that the Court
of Appeal should review a trial court order for genetic testing
as a collateral order. While the order was final on the issue
it determined, and it ordered the father to perform an act, the
Court of Appeal dismissed the appeal because the order was not
collateral to or severable from the merits of the action. Also
like Ponce-Bran, the Court also declined to treat the purported
appeal as a petition for an extraordinary writ. Although the
order arose out of an unusual set of factual circumstances, the
order did not raise questions "of general importance to
the trial courts and to the profession." San Joaquin County
Department of Child Support Services v. Winn, 163 Cal.App.4th
296, 77 Cal.Rptr.3d 470 (2008).
...............................................C. Other Requirements for Appellate
Review
2. Timely Notice of Appeal
p. 873, Note 3, following Hollister Convalescent Hospital
cite: However, the Court of Appeal has permitted an incarcerated
pro per litigant seeking to appeal a civil judgment to rely on
the "prison-delivery rule" ordinarily applicable only
to prisoners filing criminal appeals. The prison-delivery rule
deems a notice of appeal timely as long as it was delivered to
prison officials within the required period for filing the notice.
There is no language in the relevant California civil rules of
court that would prohibit the application of the prison-delivery
rule to civil appeals. Shufelt v. Hall, ___Cal.App.4th ___, 77
Cal.Rptr.3d 900 (2008).
p. 873, Note 4: Appellants (and even trial courts)
sometimes seek imaginative ways to mitigate the onerous effects
of the appellate timing rules. In one case, a plaintiff had not
learned of the entry of judgment against her until seven months
later because statutorily-required notice of entry had not been
provided by the defendant or the clerk of the court. The trial
court vacated the judgment as void and reinstated the judgment
as of the date of the order, permitting the plaintiff to file
a "timely" notice of appeal. The Court of Appeal dismissed
the appeal, stating that the trial court lacked jurisdiction
to vacate the judgment due to the failure to provide the required
notice of entry of judgment. In the absence of the notice of
entry, the plaintiff should have filed her notice of appeal within
180 days of the original entry of judgment, pursuant to CRC 8.104(a)(3).
Avenue v. Franco, ___Cal.App.4th ___, ___Cal.Rptr.3d___ (2008)
[2008 WL 2358732].
p. 874, Note 4, new second paragraph: Recall the Edible
Widgets Hypothetical in Chapter 1, Section E. Assume that Pam
prevailed in her personal injury lawsuit against Dan, and the
court entered judgment on June 19. Anna had represented Dan as
his attorney of record throughout the trial court proceedings
A few weeks before the trial, Dan associated additional counsel,
Andy. On the same day the trial court entered its judgment for
Pam, the court clerk mailed notice of entry of judgment to Anna
but not to Andy. Dan then filed a motion for new trial. The trial
court entered an order denying the motion on August 7. The clerk
mailed notice of entry of the order on the same day to only Anna,
not Andy. On September 7, Dan filed a notice of appeal from the
judgment and from the order denying a new trial. Dan contends
that he had 180 days after entry of judgment to file his notice
of appeal because the court clerk mailed notice of entry of the
judgment and order to only one of his two attorneys. However,
since at least one of Dan's attorneys of record received actual
notice of the entry of the judgment and order, the clerk's mailing
was sufficient to require Dan to file his notice of appeal of
the judgment within 30 days after entry of the order denying
a new trial (CRC 8.108(b)). His September 7 notice of appeal
was therefore untimely, and his appeal must be dismissed. See
Adaimy v. Ruhl, 160 Cal.App.4th 583, 72 Cal.Rptr.3d 926 (2008).
................................................................D. Standard of Review
p. 883, Note 3, new second paragraph: Varying
standards of review may apply to the appeal of a trial court
order, depending, among other things, on whether the order denies
or grants a motion. For example, on review of an order denying
a motion for new trial, the appellate court applies a de novo
(independent) review standard. However, if the trial court denied
the motion and provided a statement of its reasons, the applicable
standard is abuse of discretion. In cases where the trial court
has granted the motion for new trial, but it has not adequately
supplied its reasons (as required by CCP § 657), the de
novo standard applies. Whitlock v. Foster Wheeler, LLC, 160 Cal.App.4th
149, 72 Cal.Rptr.3d 369 (2008).
....................................................E. Prejudicial versus Harmless Error
p. 894, Note 2: In Ayala v. Arroyo Vista
Family Health Center, 160 Cal.App.4th 1350, 73 Cal.Rptr.3d 486
(2008), the plaintiff argued that the judgment for the defendants
was based on prejudicial error because the court gave an erroneous
jury instruction that was not supported by the evidence. Although
the Court of Appeal agreed that the instruction was erroneous,
it found the error harmless under the five factors set out in
Soule, focusing particularly on whether other instructions remedied
the error. The court concluded that the error would not reasonably
have resulted in a more favorable outcome for the plaintiff..
...............................................................F. Appellate Sanctions
.....(a) Frivolous
Appeal
p. 895, first paragraph: An appeal that is frivolous (without
merit) or is prosecuted solely to cause delay may be dismissed,
either under the court's inherent power or pursuant to statute
(CCP § 907) or rule of court (CRC 8.276(a)). The determination
of a frivolous appeal is based on an objective standard, while
the analysis that an appeal has been filed solely to cause delay
is measured by a subjective standard. Although frivolousness
or delay each provides an independent ground for sanctions, the
two standards are frequently combined, such that total lack of
merit serves as evidence of intent to delay. In re Marriage of
Gong and Kwong, ___Cal.App.4th___, 77 Cal.Rptr.3d 540 (2008). |