Appeals and Writs

by

Appeals and Writs

By Paul Killion, Dean Bochner, Katy Graham, Greg Wolff, Jessica Barber, Matthew Scherb,Jocelyn Sperling, Julia Shear Kushner, David Williams, Benjamin Siminou, Glenn Danas, and Ryan Wu

California Supreme Court Practice and Procedure

For the California Supreme Court, 2020 was a year of leadership in a time of crisis. At the onset of the COVID-19 pandemic, the Court swiftly pivoted to remote oral arguments, building on its early commitment to “Blue Jeans” technology. Chief Justice Cantil-Sakauye invoked constitutional1 and statutory2 powers to issue a series of emergency orders3 intended to protect the health and safety of court staff and the public, while protecting the due process rights of litigants. She cautioned that the 1,700 deaths suffered in California by April would “continue to rise unless the population adheres to shelter-in-place guidelines and appropriate social distancing.”4 By the end of December, California’s COVID-19 related death toll reached 26,000.5 When out- rage over racial injustice peaked in June, the Court issued a formal Statement on Equality and Inclusion in which each justice, and the Court as a whole, committed to answering the call for “a justice system that works fairly for everyone.”6 In July, the Court intervened to extend the statutory deadline for displaying, approving, and certifying redistricting maps due to COVID-19 census delays.7 In August, Justice Ming

W. Chin retired, and in December, Justice Martin J. Jenkins was sworn in as his replacement. The turmoil and changes in 2020 took a toll on productivity. The Court issued only 65 opinions in 2020, 31 of which were in civil cases.

No More Disappearing Act for the Clear and Convincing Standard.

In Conservatorship of O.B.,8 the Court made it easier to challenge on appeal decisions by juries and trial judges that require proof by clear and convincing evidence. The Court disapproved a line of cases (and a prominent treatise) that stated the clear and convincing evidence standard “disappears” during substantial evidence review.9

Appellate courts must now apply the clear and convincing standard of proof when considering a claim of insufficient evidence to support a finding made under the standard.10 Specifically, reviewing courts must ask “whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true.”11 As in any substantial evidence challenge, the appellate court will view the record in the light most favorable to the prevailing party and defer to the trier of fact’s evaluation of credibility, resolution of conflicts in the evidence, and reasonable inferences.12

California law requires proof by clear and convincing evidence in many other areas where important interests are at stake and the social costs of an erroneous determination are high.13 The O.B. decision has already been applied in the context of punitive damages claims14 and dependency cases.15 And the O.B. standard may impact other areas of the law, including elder abuse,16 contracts,17 employment,18 probate,19 property rights,20 and civil restraining orders,21 among others. How widespread that impact may be isn’t entirely clear because O.B. announces “only a general rule” and “different forms of appellate review may apply in certain circumstances.”22

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Notice of Appeal That Names Wrong Appellant Squeaks By.

Disapproving a slew of Court of Appeal decisions, the California Supreme Court in K.J. v. Los Angeles Unified School District23 upheld the validity of a notice of appeal from an order imposing sanctions on an attorney despite the fact that the notice wrongly identified the attorney’s client as the appealing party. The court held the notice of appeal must be liberally construed to include the sanctioned attorney if that intent was apparent and the respondent was not misled or prejudiced by the notice of appeal.24

California Court of Appeal Developments

A Web of Coronavirus Rules in 2020.

After the first round of COVID-19 stay-at-home orders was issued, the Judicial Council and courts throughout the state acted to address the complex issues created by the pandemic. Rule 8.66 of the California Rules of Court, which governs deadlines during emergencies, was amended to clarify that it applies during a public health crisis. The rule already allowed the Judicial Council to extend deadlines in increments of up to 14 days, or to authorize courts themselves to extend deadlines in this fashion. The amendments allowed tolling, in addition to extensions, in increments of 30 days or less.25 The comment accompanying the amendments states that the rule permits extensions and tolling to rules governing finality in the Courts of Appeal and Supreme Court.

Although Rule 8.66 authorized statewide action by the Judicial Council, emergency orders were issued on a court-by-court basis.26 Individual courts also closed their doors and deemed those closed days to be holidays, further impacting filing deadlines.27 Because of this piecemeal response to the pandemic, filing deadlines differed from court to court and day to day as new orders issued.

Only a few appellate opinions from 2020 addressed

Rule 8.66 and related timeliness issues.28 In Rowan v. Kirkpatrick,29 the only published decision on the topic, the Court of Appeal dismissed an appeal that was filed one month late, despite all the extensions afforded by applicable superior court general orders. While the court expressed sympathy over the "unprecedented nature of the circumstances presented by the COVID-19 pandemic, and the hardships it may have caused," it noted the appellant had not claimed she was actually prevented from filing on time.30 However, the court left the door open to relief for other litigants that could show forces beyond their control thwarted their efforts to timely appeal.31

How to Know When It’s Over—And Time to Appeal.

In 1010, we were again reminded that it is sometimes difficult to determine whether an order is final and thus appealable. For example, an order may be final even if a subsequent order or judgment of dismissal seems more definitive. If that first order is indeed final and the time to appeal from that order has expired, the appeal is forfeited.

Anti-SLAPP. In Reyes v. Kruget32 and Marshall v. Webster,33 Courts of Appeal addressed the finality of orders granting anti-SLAPP motions, which are appealable under Code of Civil Procedure section 425.16, subdivision (i), and section 904.1, subdivision (a)(13). In both cases, the courts concluded that the appeals were untimely because they were taken not from the anti-SLAPP orders, but from a subsequent judgment of dismissal (in Reyes) or a subsequent order prepared by the defendant (in Marshall), both of which "had no effect" on the finality of the previously entered anti-SLAPP orders.34 Reyes explained that an anti-SLAPP order is final even if it does not address attorney fees, and a subsequent order or judgment addressing fees does not restart the time to appeal because it is not a "substantial modification" of the anti-SLAPP order.35

Class Actions. Addressing an issue of first impression, Fidelity National Home Warranty Company Cases36 held that orders of dismissal in a class or putative class action are not final if rendered before compliance with requirements governing dismissals of class actions. Before the trial court may dismiss a class action, class members must receive notice.37 In a putative class action, putative class members must receive notice or the court must find dismissal will not prejudice them.38 The Court of Appeal held that these requirements apply to both voluntary and involuntary dismissals.39 Because the involuntary dismissal orders in these cases were issued before these pre-dismissal requirements were satisfied, those orders were not final and the appeals from the subsequent judgments were therefore timely.40

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Cautionary Tales: That Motion Might Not Extend the Time to Appeal.

Under rule 8.108 of the California Rules of Court, the time to appeal is extended if any party files and serves a "valid" motion for new trial, motion to vacate judgment, motion for judgment notwithstanding the verdict, or motion to reconsider an appealable order. Three recent cases address the "validity" requirement.41

In Rowan v. Kirkpatrick, the Court of Appeal held that a motion for reconsideration under Code of Civil Procedure section 1008, subdivision (a), was invalid because the motion was not filed within the statutory 10-day deadline.42 To the extent that the motion qualified as a renewed motion under section 1008, subdivision (b), it still did not trigger an extension under rule 8.108(e) because renewed motions under subdivision (b) are not listed in rule 8.108.43 Further, the motion was invalid under subdivision (b) because it did not include the required affidavit.44 As a result, the motion did not extend the time to appeal.

In Marshall v. Webster, the Court of Appeal held that a motion for reconsideration was invalid because it was filed after entry of judgment, when the trial court no longer had jurisdiction to decide the motion.45 Although no formal judgment had been entered, the court determined that the order granting an anti-SLAPP motion qualified as the judgment.46 The court added that if there were any doubt about the effect of the anti-SLAPP order, the trial court’s entry of a dismissal in the docket made it clear that judgment had been entered.47

In Reyes v. Kruger, another anti-SLAPP case, the Court of Appeal held that a new trial motion was invalid because the notice of intention to move for a new trial was not filed within the 15-day deadline imposed by Code of Civil Procedure section 659.48 Although the notice of intention should have been filed within 15 days after notice of entry of the order granting the anti-SLAPP motion was served, it was not filed until after the subsequent "redundant" judgment of dismissal.49

In short, because the motions in all three cases were not "valid," those motions did not extend the time to appeal, and the appeals were dismissed. Practitioners who harbor any doubt as to the validity of a motion identified in rule 8.108 should play it safe and assume that there is no extension of time to appeal.

Sounding the Death Knell in Class Actions: Do You Hear What I Hear?

The death knell doctrine is an exception to the "one final judgment" rule. Under that doctrine, an order terminating all class claims while preserving the plaintiff’s individual claims is appealable. But what if the order grants the plaintiff leave to amend the complaint or denies class certification without prejudice? In Williams v. Impax Laboratories, Inc.,50 the Court of Appeal clarified that an order sounds the death knell where it (1) sustains a demurrer to class allegations, regardless of whether leave to amend is granted to reallege class claims; or (2) denies class certification or decertifies a class with prejudice. But the death knell doctrine does not apply to orders that deny class certification or decertify a class without prejudice because such orders do "not in effect strike the class allegations from the complaint."51

The death knell doctrine also applies if individual claims are compelled to arbitration and the class claims are terminated. Typically, an order compelling arbitration is not immediately appealable and may be challenged only on appeal from the judgment. But in class actions, as Williams v. U.S. Bancorp Investments, Inc.52 and Garner v. Inter-State Oil Co.53 explain, an order is appealable if it compels a plaintiff to arbitrate his or her individual claims and dismisses the remaining class claims or determines that the plaintiff cannot pursue the class claims in arbitration.54

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An Exception to the Golden Rule of Summary Judgment.

It is an oft-repeated "Golden Rule" of summary judgment that evidence omitted from the separate statement of facts "does not exist."55 But many practitioners do not realize that this rule has exceptions. In Ghazarian v. Magellan Health, Inc.,56 the Court of Appeal reiterated that a trial court has discretion to consider evidence outside the separate statement, and when it does, its decision is reviewed for an abuse of discretion. Also, if the trial court never addressed a dispute over the evidence that was not included in the separate statement, the appellate court has discretion to consider such evidence in the first instance.57

Writ Developments

Some Guidance on Original Jurisdiction in the Supreme Court.

The California Supreme Court can exercise original jurisdiction over an emergency petition for writ of mandate for important and time-sensitive matters.58 The state’s highest court did just that when it issued a writ of mandate directing the then-California Secretary of State, Alex Padilla, to refrain from enforcing portions of the Presidential Tax Transparency and Accountability Act, which prohibited listing on a primary ballot the name of a U.S. presidential candidate who had not filed federal income tax returns for the five most recent years.59

Asserting that the Act’s November 26, 2019 deadline for submitting tax returns necessitated relief on an emergency basis, the California Republican Party and its chair filed an emergency writ petition directly with the California Supreme Court in August 2020.60 The Court accepted the petition, requested a preliminary opposition from Secretary Padilla, and then ordered him to show cause why a writ of mandate should not issue, with expedited briefing.61 The Court granted the petition, concluding that the provisions in question were invalid under article II, section 5(c) of the California Constitution.62

Alternative Writ vs. OSC—It’s All About Direction to the Trial Court.

In Paul Blanco’s Good Car Company Auto Group v. Superior Court,63 the Court of Appeal explained the difference between an order to show cause (OSC) and an alternative writ. The People of the State of California filed a civil complaint against the defendants. The trial court struck defendants’ answer with leave to amend because the answer was not verified and asserted only a general denial.64 Defendants petitioned for writ relief, and the Court of Appeal issued an order directing the lower court to show cause why that relief should not be granted.65

In response, the trial court set the matter for hearing before a new judge because there had been a change in judicial assignment.66 After the hearing, the second judge issued a new order vacating the prior judge’s order from which the writ was taken.67 When the Court of Appeal was advised of the second order, it directed the parties to brief not only the merits of the first petition, but also the validity of the second order and possible mootness of the first.68

The Court of Appeal concluded that neither the writ petition nor the OSC precluded the trial court from changing the first order. But the appellate court found that the second order was invalid because the second judge lacked authority to vacate the first order.69 In reaching this conclusion, the Court of Appeal took the opportunity to explain the difference between an alternative writ of mandate, which "requires the respondent to perform an act (e.g., change its order) or to show cause why it has not done so," and an OSC, which "requires respondent only to show cause why it should not be required to perform an act" and thus "does not invite the trial court to change the ruling under review."70 The court further explained that "[a]ppel-late courts carefully choose between the alternative writ and OSC procedures, cognizant of the issues between the two."71 Here, the Court of Appeal "deliberately chose to issue an OSC" to avoid "the undesirable result of potentially rendering the issue moot" because "the petition raised a question of first impression appropriate for resolution in a published opinion."72 Thus, in attempting to change the initial order, the trial court nearly achieved the result the appellate court sought to avoid by issuing the OSC in the first place.73

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Trial Court Procedures Relevant to Appeal

Unprecedented Times (Usually) Justify Unprecedented Restrictions.

Last year brought a series of fundamental changes to trial court procedures throughout the state. The COVID-19 pandemic closed courtrooms and, even after reopening, trial courts were subject to severe limitations on normal operations. Special orders issued and authorized by the Governor and Chief Justice tolled statutory deadlines,74 suspended trials,75 prohibited unlawful-detainer and foreclosure actions,76 prolonged the duration of restraining orders without providing the restrained party an opportunity to be heard,77 and permitted counties to bar members of the public from attending proceedings.78 Individual superior courts were also given carte blanche "to adopt any proposed rules or rule amendment that is intended to address the impact of the COVID-19 pandemic" without advance notice.79

By and large, these emergency restrictions on trial practice were upheld on appeal. The pandemic supported a trial court’s finding of good cause to continue a criminal defendant’s trial under Penal Code section 1382.80 The pandemic also entitled litigants to appear remotely for ex parte civil proceedings that would normally be held in person.81 As the Chief Justice observed at the outset of the pandemic, "Courts cannot comply with [federal, state, or local] health restrictions and continue to operate as they have in the past."82

But for all the latitude granted by these emergency rules, Courts of Appeal have not permitted individual trial judges to entirely set their own course. For example, appellate courts reversed rulings that the "unprecedented" pandemic provided good cause to extend criminal trials beyond the normal 60-day statutory period.83

The Courts of Appeal have also been cautious about permitting infringements on the rights of particularly vulnerable parties. An emergency order to schedule juvenile dependency matters was reversed because it did not adequately prioritize those cases.84 Similarly, an order prohibiting a juvenile litigant from appearing in person was vacated by writ of mandate.85

A review of the cases published to date reveals two guiding principles. First, if the trial courts cannot "operate as they have in the past," they must generally give priority to especially vulnerable litigants, like criminal defendants and juvenile wards. Second, while ordinary rules of procedure may be suspended in an emergency, trial courts must exercise caution before departing from those general rules in a specific case.

Meet and Confer? What Meet and Confer?

Since 2016, Code of Civil Procedure section 430.41 has required litigants to meet and confer before a demurrer may be filed.86 If the parties cannot meet and confer before the deadline to file a responsive pleading, the demurring party may obtain an automatic 30-day extension by notifying the trial court of its inability to do so.87 If the litigants still cannot meet and confer during the 30-day extension period, the demurrer may be filed at the end of that period—and even then, the demurrer must be accompanied by a declaration stating that the parties have been unable to meet and confer.88

In Dumas v. Los Angeles County Bd. of Supervisors,89 the Court of Appeal found that these "requirements" were really more like suggestions. A trial court can order parties to meet and confer on its own motion, and it may postpone hearing dates in order to enforce compliance with such an order.90 But the Code of Civil Procedure does not authorize the trial court to either sustain or overrule a demurrer merely because the pre-filing meet-and-confer was inadequate.91

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Dumas built on last year’s Court of Appeal opinion in Olson v. Hornbrook Community Services Dist.,92 which broadly found that the Code of Civil Procedure "does not contain any penalties for the failure to follow the meet-and-confer process." Olson, however, considered the question in a more unusual procedural context involving timeliness and jurisdictional challenges.93 More critically, Olson did not specify whether litigants could avoid the entire meet-and-confer process, or whether they are still required to obtain the initial 30-day extension before filing a demurrer without engaging in the meet-and-confer process.94 Dumas clarified that the Code of Civil Procedure makes no distinction between these scenarios.95

In sum, regardless of the procedural context and whether a litigant obtains the "required" 30-day extension, a trial court may not consider the failure to meet and confer in ruling on the demurrer.96

Closing a Motion-for-Reconsideration Backdoor to Summary Judgment.

In Torres v. Design Group Facility Solutions, Inc.,97 the Court of Appeal closed a potential loophole that might have allowed defendants to obtain summary judgment without satisfying the requirements of Code of Civil Procedure section 437c. In Torres, an electrician fell through a skylight on the roof of a seafood processing facility that was undergoing a renovation.98 The electrician sued the general contractor, Design Group Facility Solutions, Inc. ("Design"), alleging that Design negligently failed to identify a pathway for workers to safely traverse the roof.99 Design moved for summary judgment, but the motion was denied.100 Design then filed a motion for reconsideration under Code of Civil Procedure section 1008, citing testimony it acquired after it filed its summary judgment motion. The superior court granted the motion for reconsideration and—at the same hearing—granted the motion for summary judgment.101

The Court of Appeal reversed. The court acknowledged that a trial court may entertain a renewed motion for summary judgment based on new evidence,102 but cautioned that "[b]y granting the motion for reconsideration and then summary judgment at the same time," the trial court improperly "bypass[ed] . . . the due process protections afforded a party opposing summary judgment under section 437c."103 Instead, trial courts that grant reconsideration of an order denying summary judgment must respect "the procedural protections afforded to parties opposing summary judgment, including 75 days’ notice and a separate statement of material facts" before entering a new order on the summary judgment motion.104

A Party’s Delay in Seeking Discovery is Not a Valid Basis to Refuse to Continue a Summary Judgment Hearing.

In Insalaco v. Hope Lutheran Church of West Contra Costa County,105 the Court of Appeal held that a party’s unexplained delay in seeking discovery is not a valid basis for a trial court to refuse to continue a hearing on a summary judgment motion under Code of Civil Procedure 437c, subdivision (h). In Insalaco, a home suffered extensive damage in a landslide that the homeowners attributed to water run-off from a church located downslope from their property.106 The church moved for summary judgment, citing expert declarations from an engineer and a hydrogeologist that water runoff from the church did not contribute to the landslide.107 The homeowners asked the court to continue the hearing on the summary judgment motion under section 437c, subdivision (h) in order to allow their experts to inspect the church property.108 The church opposed a continuance on the sole ground that the homeowners could "have sought to arrange for a site inspection at an earlier point in the litigation."109 The trial court denied the continuance and granted summary judgment for the church.110

The Court of Appeal reversed, explaining that "when a party submits an affidavit demonstrating that facts essential to justify opposition may exist," a "court’s discretion to deny a continuance is strictly limited."111 Because "the policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency," the appellate court cautioned that it is an abuse of discretion to deny an otherwise proper request for a continuance to conduct additional discovery even when "the party has not been diligent in searching for the facts through discovery."112 In this case, the homeowners "did not merely make a generic discovery request"; instead, they provided "a declaration requesting specific discovery" (a site inspection) and "could not have been more clear" regarding "the particular facts essential to opposing the motion that may exist but could not then be presented."113 The Court of Appeal held "that the continuance was virtually mandated" and that the trial court abused its discretion by denying the continuance "even if the [homeowners] should have sought to arrange for a site inspection at an earlier point in this litigation."114

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What Constitutes an Arbitration "Award"?

In Lonky v. Patel,115 the Court of Appeal offered a framework for courts and parties to identify when an arbitrator’s decision constitutes an arbitration "award," a determination that has significant ramifications for appeals following arbitration. Lonky involved a dispute among business partners in which one partner (Lonky) accused the other (Patel) of stealing checks from the business.116 The case proceeded to arbitration, where it was divided into three phases: (1) a first phase to determine Patel’s liability, the amount of compensatory damages, and entitlement to punitive damages, (2) a second phase to assess the amount of punitive damages (if any) and entitlement to attorney fees and costs, and (3) a third phase to determine the amount of fees and costs owed to the prevailing party.117

After the first phase, the arbitrator issued a decision styled "Interim Award," finding Patel liable for stealing checks in the amount of $558,266.118 The "Interim Award" left blanks for punitive damages, costs, and attorney fees.119 A week later, Patel filed an application urging the arbitrator to correct the "Interim Award" to reflect the amounts of checks stolen "within the pertinent statute of limitations period" of three years, which totaled $310,138.62.120 After several months, the arbitrator issued a decision styled "Corrected Phase II Interim Award," which awarded $310,138.62 in compensatory damages and $1 million in punitive damages, and left a blank for attorney fees and costs.121 Days later, Lonky urged the arbitrator to correct the "Corrected Phase II Interim Award" on the ground that the correct statute-of-limitations period was four years and therefore Patel should be liable for $434,158.25 in stolen checks, not $310,138.62.122 Several months later, the arbitrator issued a decision styled "Final Award," which awarded $434,158.25 in compensatory damages, $1 million in punitive damages, and $791,826.26 in attorney fees and costs.123

Lonky and Patel then filed competing petitions in the superior court: Lonky filed a petition to confirm the award, while Patel filed a petition to reduce the compensatory damages from $434,158.25 to $310,138.62 "on the ground that the arbitrator exceeded her powers by increasing the compensatory damages awarded in the Second Interim Ruling more than 30 days after that award was issued."124 The trial court granted Patel’s petition, reduced the compensatory damages to $310,138.62, and otherwise affirmed the award.125

Under California law, an arbitrator has only 30 days after issuing an "award" to "reconsider the merits of the original award."126 Because 101 days elapsed between the arbitrator’s second decision (awarding $310,138.62 in compensatory damages) and final decision (awarding $434,158.25 in compensatory damages), the reduction of the compensatory damages in the final decision was proper only if the first and second decisions were not "awards" under Code of Civil Procedure section 1284.127 With that in mind, the Court of Appeal fashioned a test to determine "whether an arbitrator’s ruling constitutes an ‘award.’"128 Lonky explained that "a particular ruling" by an arbitrator "is an ‘award’ only if that ruling (1) determines all issues that are necessary to the resolution of the controversy being arbitrated, and (2) leaves unresolved only those issues that are potential, conditional or that otherwise could not have been determined at the time of that ruling."129 Applying that test, the Lonky court determined that the arbitrator’s second decision—which reduced the compensatory damages from $558,266 to $434,158.25—was not an "award" because it left issues unresolved, including "the amount of attorney fees and costs," and therefore "did not determine all issues necessary to the resolution of the controversy between the parties."130 Accordingly, the arbitrator "did not exceed her statutory authority to incorporate a modification of the Second Interim Ruling in the Final Award."131

Notably, the Lonky test for what constitutes an arbitration "award" has ramifications beyond defining the scope of an arbitrator’s authority to modify an arbitration decision. As Lonky explained, "[t]he issuance of an ‘award’ is what passes the torch of jurisdiction from the arbitrator to the trial court."132 This means that an arbitration decision "that is not an ‘award’ is . . . not subject to confirmation, correction or vacation by a trial court"133 and therefore cannot be reviewed on appeal.

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Ninth Circuit Practice and Procedure

Substantial Revisions to Ninth Circuit Rules.

Unlike other federal appellate courts, the Ninth Circuit requires counsel to file Excerpts of Record ("ER") with their briefs, rather than an Appendix pursuant to Federal Rule of Appellate Procedure ("FRAP") 30.134 On December 1, 2020, a new version of the rule governing the content and style of the ER, Circuit Rule 30-1, went into effect. As before, the purpose of this rule is "to compile for the Court all parts of the record, but only those parts of the record, that are relevant and useful to the Court in deciding the appeal."135

Under new Rule 30-1, the list of items that must be included in the ER largely remains the same.136 However, the Ninth Circuit’s guidance on this topic, much of which can now be found in the Advisory Committee Note, has become more detailed.137 Notably, new Circuit Rule 30-1.4(a) also emphasizes that in a multi-volume set, the first volume must contain only the complete set of district court rulings and orders challenged in the appeal—and nothing else.138

New Circuit Rule 30-1 further embodies numerous stylistic changes from the prior rule. For instance, the former version of this rule permitted a table of contents or index to be included at the beginning of each volume of a multi-volume ER.139 By contrast, the new rule requires the ER to include a separately bound Table of Contents (the "Index Volume"), unless the total ER can be produced as a single volume of 300 pages or less.140

As another example, counsel previously had the option of numbering pages in a multi-volume ER consecutively, "beginning with page 1," or if the documents were arranged by tabs corresponding to the tabs in the clerk’s record, paginating them consecutively within each set of tabs.141 Under the new rule, pages in a multi-volume ER must be numbered consecutively across all volumes in the set, including any blank pages, caption pages, dividers, or certificates.142 The only exception to this rule is that the Index Volume may be numbered separately,143 and—while caption pages must be included in the consecutive pagination—the page number need not be printed on these pages.144 Practitioners in California’s state appellate courts are likely familiar with these "pdf-friendly" pagination requirements.

Circuit Rule 30-1.6 also establishes a new standard citation format for citing to the ER in the parties’ briefs. Specifically, citations to a multi-volume ER must now include the volume number.145 The new rule provides the following examples of this format: "1-ER-12" and "4-ER-874-76."146 As a result, practitioners should budget more time at the end of the drafting process to insert record citations. Given the new format, you may not be aware of what volume number to put at the beginning of a record citation until the ER is finalized.

In light of these many changes, practitioners now more than ever should heed the advice of the Ninth Circuit’s Appellate Lawyer Representatives not to delegate creation of the ER to anyone unfamiliar with the case.147 For the ER to be useful, the person compiling it must know the record and the legal issues on appeal.148

Clarifying the Final Judgment Rule.

Under the final judgment rule embodied in 28 U.S.C. § 1291, federal courts of appeals have jurisdiction over appeals from final decisions of district courts. The U.S. Supreme Court has affirmed the general rule that "the whole case and every matter in controversy in it [must be] decided in a single appeal."149 But thorny issues of appealability arise when a district court dismisses a subset of a plaintiff’s claims and the plaintiff wants to appeal the dismissal ruling immediately, without waiting for the remaining claims to be resolved. The plaintiff ordinarily must either seek certification for interlocutory appeal under 28 U.S.C. § 1292(b), which is time-consuming and difficult to obtain; seek certification of a final judgment under Federal Rule of Civil Procedure 54(b), which is also discretionary; or invoke a recognized exception to the general final judgment rule.

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Rather than pursue these options, one tactic that plaintiffs use to manufacture finality is voluntary dismissal of the other claims remaining in the case. The Ninth Circuit has previously held that a FRAP 41(a)(1) voluntary dismissal of all remaining claims with prejudice can sometimes create an appealable final judgment under 28 U.S.C. § 1291.150 By contrast, the court has held that a voluntary dismissal without prejudice "is ordinarily not a final judgment from which the plaintiff may appeal."151 However, an exception to this general principle, established in James v. Price Stern Sloan, Inc.,152 provides that even a dismissal without prejudice suffices to create a final judgment if "the record reveals no evidence of intent to manipulate [the court’s] appellate jurisdiction" and the plaintiff dismisses the remaining claims "with the approval of the district court."153

In 2020, the Ninth Circuit took another look at the James exception to the final judgment rule in two cases.

In Galaza v. Wolf,154 the court was asked to decide whether a plaintiff’s voluntary dismissal of her remaining claims after an adverse decision fell within the scope of the James exception. The plaintiff in Galaza had worked for the Transportation Security Administration ("TSA").155 After injuring herself several times, the plaintiff was initially given reduced duties but later was terminated.156 She sued the TSA, alleging claims, among others, under the Rehabilitation Act and Title VII.157 The district court granted the government’s motion to dismiss all of these claims except for those brought under Title VII for sex discrimination, race discrimination, and retaliation, which the court allowed plaintiff to amend.158 After the plaintiff amended her Title VII claims, the government again moved to dismiss those claims.159 While the plaintiff opposed this motion as to her sex and race discrimination claims, she consented to the dismissal of the retaliation claim.160 The district court denied the motion, without mentioning the retaliation claim.161 The plaintiff then voluntarily dismissed the Title VII sex and race discrimination claims without prejudice and without seeking or obtaining the district court’s approval.162 On appeal, the plaintiff challenged the dismissal of the Rehabilitation Act claim only.163 The government moved to dismiss the appeal for lack of finality under 28 U.S.C. § 1291.164

The Ninth Circuit considered whether the appeal might fit within the James exception for voluntary dismissals without prejudice that nonetheless produce final judgments.165 The panel first concluded there was no evidence that any party had attempted to manufacture appellate jurisdiction through manipulation.166 It then addressed the second inquiry under James (i.e., whether the district court had been involved in the voluntary dismissal of the residual claims), observing that the district court’s involvement in the dismissal is essential to making "a determination that its adjudication of those claims was ripe for review[.]"167 As the panel noted, the district court had not participated in the plaintiff’s dismissal of the Title VII sex and race discrimination claims, and further it appeared that her retaliation claim was technically still pending.168 The panel concluded that "[e]ither circumstance would be sufficient to warrant dismissal of the appeal."169 Although FRAP 41(a)(1) did not require district court approval for the plaintiff to voluntarily dismiss claims, such approval was nonetheless required to establish the existence of a final appealablejudgment.170 Because there was no such approval here, the Ninth Circuit lacked jurisdiction under 28 U.S.C. § 1291.171

In Meeks v. Blazin Wings, Inc.,172 the Ninth Circuit again considered, in an unpublished decision, whether a voluntary dismissal of claims without prejudice created a final appealable judgment. The plaintiff in Meeks sued Yelp and two other entities for unwanted text messages under the Telephone Consumer Protection Act.173 The district court granted Yelp’s motion to dismiss with prejudice and then transferred the plaintiff’s claims against the two other defendants to another district.174 After transfer, the plaintiff then dismissed his remaining claims without prejudice and sought to appeal the dismissal of his claims against Yelp alone.175

On appeal, the Ninth Circuit reiterated the rule that voluntary dismissals without prejudice can create appealable final judgments where, as in James, there is no evidence of intent to manipulate appellate jurisdiction and the party secures district court approval of the dismissal.176 But a divided panel concluded in Meeks that the plaintiff had satisfied neither requirement for invoking the James exception: the plaintiff had not sought district court approval to dismiss the remaining claims without prejudice, and there was evidence that the plaintiff intended to manipulate appellate jurisdiction.177 For example, even though the case had been transferred from the Northern District of California to the Central District of California, the plaintiff filed his notice of appeal in the Northern District in an apparent attempt to obtain a remand to his preferred venue.178 The majority therefore dismissed the appeal for lack of jurisdiction.179

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Judge Miller dissented from the majority’s decision on several grounds.180 In his view, where a district court has resolved claims against some defendants, no rule or statute limits a plaintiff’s ability to obtain appellate review of that decision by dismissing the remaining defendants.181 Judge Miller further noted that the majority’s decision had left "[t]his litigation in a jurisdictional no man’s land."182 While there were no further issues or claims for the district court to resolve, the plaintiff had no final judgment to appeal.183

Clarifying the Time and Manner to Appeal from a Judgment and Post-Judgment Attorney Fee Order.

What should a litigant do to appeal from an adverse judgment when a separately appealable post-judgment motion is also pending? Must two appeals be filed, each within 30 days after entry of the appealable order? Or does one appeal from both orders suffice—assuming the time to appeal from the judgment can be tolled by the filing of the post-judgment motion?

In Nutrition Distribution LLC v. IronMagLabs LLC,184 the Ninth Circuit addressed how a litigant might go about prosecuting such an appeal. After the district court entered a partial adverse judgment, the appellant timely appealed from only the post-judgment order denying its motion for attorney fees under Federal Rule of Civil Procedure 54(b).185 Although the notice of appeal purportedly sought to appeal from both the judgment and the fee order, the appellant failed to take proper steps to toll the time to appeal from the judgment.186

Judge Bress, writing for a unanimous panel, made short work of the timing issue and dismissed the appeal, but not before delivering a treatise-like discussion aiming to educate "litigants who wish to ensure the timeliness of their appeals in cases involving post-judgment motions for attorneys’ fees."187 As the panel explained, the straightforward approach for litigants facing this situation is to appeal from the judgment within 30 days, pursuant to FRAP 4(a)(1)(A).188 The appellant may then file a separate appeal from the fee order and, if necessary, consolidate the two appeals under FRAP 4(a)(4)(B)(i).189 An alternative approach is to proceed with one appeal. Under FRAP 4(a)(4)(A), the time to appeal from a judgment can be tolled to 30 days after issuance of the order on a Rule 54 fee motion "if the district court extends the time to appeal under Rule 58."190 Obtaining such an extension "requires entry of an order by the district court before the time a notice of appeal becomes effective for appellate purposes."191

Both options have advantages and drawbacks. The first option requires two notices of appeal, while the second option only requires one.192 By contrast, the second option requires both a motion from the litigant and a decision from the district court before the notice of appeal becomes effective. The panel observed that, "perhaps due to a healthy lawyerly paranoia for missing deadlines, common experience indicates that many litigants choose the first option."193 In any event, the plaintiff in Nutrition Distribution chose neither option, so the panel held that the appeal of the adverse judgment was not timely.194

Tolling Time to Appeal by a Motion for Reconsideration.

In Hanson v. Shubert,195 the Ninth Circuit once again gave no quarter to a litigant who brought an appeal with procedural infirmities. The appellants in Hanson sought to appeal from two orders: (1) an order denying a motion for reconsideration under Federal Rule of Civil Procedure 59(e), which was appealed within 30 days after entry of the order, and (2) the underlying summary judgment order denying a claim of qualified immunity.196 The latter appeal was quickly dismissed. As the panel explained, although a valid Rule 59(e) motion tolls the time to file an appeal, "[t]he filing of an untimely motion will not toll the running of the appeal period."197

But the panel did not stop there: it went on to also dismiss the appeal from the order denying reconsideration. The panel acknowledged that the underlying order denying qualified immunity was an immediately appealable interlocutory order.198 As the Supreme Court has instructed, a denial of qualified immunity is one of those issues "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."199 Conversely, a denial of reconsideration of qualified immunity "does not resolve an important issue, but merely resolves whether to revisit an important issue."200 So unlike a denial of qualified immunity, a denial of reconsideration can be reviewed following entry of a final judgment.201 As a result, the appellants could not file an interlocutory appeal of this order.

[Page 26]

The panel also declined to allow the appellants to use the motion for reconsideration as a "back door" to review the underlying denial of qualified immunity.202 Because an order denying qualified immunity is immediately appealable, the right to appeal is forfeited if the order is not challenged by an interlocutory appeal; the appellants could not rely upon their motion for reconsideration, filed nearly a year later, "to resurrect [their] right to appeal" this order.203 Rather, the panel concluded that it "lack[ed] jurisdiction over an order denying a Rule 59(e) motion for reconsideration of a denial of qualified immunity, where [it does] not have jurisdiction over the appeal of the underlying order."204 Hanson is another case illustrating the Ninth Circuit’s low tolerance for gimmicks, such as filing and then appealing from an untimely Rule 59(e) motion, to circumvent jurisdictional bars.

Limiting Court’s Reach of Issues Beyond Party Presentation.

If a litigant fails to raise a dispositive issue, can an appellate court step in and save the day? While a reviewing court is not hidebound to the parties’ arguments, the U.S. Supreme Court reaffirmed in United States v. Sineneng-Smith205 that there are limits to a reviewing court’s discretion to consider unbriefed issues. And in this particularly egregious case, the Supreme Court concluded that the Ninth Circuit panel had disregarded one of the central tenets of appellate practice—tying the decision to the parties’ presentation.206

The defendant in Sineneng-Smith was an immigration consultant who had charged her clients $6,800 to apply for a work certification that had a long-expired deadline.207 She was arrested and indicted on multiple violations of 8 U.S.C. § 1324(a)(1)(A)(iv), which makes it a felony to encourage an alien to "enter, or reside in the United States" in knowing violation of law, and 8 U.S.C. § 1324(a)(1)(B)(i), which imposes enhanced penalty if the crime is "done for the purpose of commercial advantage or private financial gain."208 In the district court, the defendant raised, among other claims, an as-applied challenge to § 1324(a)(1)(A)(iv), arguing that her prosecution under this statute violated the Petition and Free Speech Clauses of the First Amendment. The district court rejected this constitutional claim and a jury convicted her on two counts under those statutes.209

Represented by an attorney throughout, the defendant reasserted the same as-applied claim on appeal. The appeal proceeded "unremarkably" through briefing and oral argument, until the panel decided to inquire about an unbriefed issue.210 Specifically, the panel invited three organizations—the Federal Defender Organizations of the Ninth Circuit, the Immigrant Defense Project, and the National Immigration Project of the National Lawyers Guild—to file amicus briefs on three questions formulated by the panel that probed into whether § 1324(a)(1)(A)(iv) was facially overbroad in violation of the First Amendment.211 While the panel allowed the parties to also submit supplemental briefs, they were limited to responding to the amicus briefs. The parties were also allocated only 10 minutes on re-argument, while the amici were allotted 20 minutes.212 For her part, the defendant "[u]nderstandably . . . rode with an argument suggested by the panel" and "adopted without elaboration counsel for amici’s overbreadth arguments."213 Not surprisingly, the panel issued a decision agreeing with the appointed amici that § 1324(a)(1)(A)(iv) is facially overbroad.214

[Page 27]

Justice Ginsburg, writing for a unanimous Court in what was her penultimate opinion, concluded that the panel had overreached. While "[t]he party presentation principle is supple, not ironclad," appellate courts cannot radically recraft the case to reach conclusions never presented by counsel.215 In this case, "[n]o extraordinary circumstances justified the panel’s takeover of the appeal," Justice Ginsburg wrote.216 Observing that competent counsel for the defendant had taken a contrary position on the application of the First Amendment to her own case, the Supreme Court criticized the panel for eschewing the controversy at hand and instead "project[ing] that § 1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother’s plea to her alien grandchild to remain in the United States."217 The Supreme Court ultimately concluded that "the Ninth Circuit’s radical transformation of this case goes well beyond the pale."218 As a result, the Court vacated the decision below and remanded "for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties."219

To provide further guidance, the Supreme Court appended an extensive addendum to the majority opinion that identified numerous cases in which it had properly solicited supplemental briefing or appointed amicus curiae.220 The Supreme Court explained that it has previously ordered supplemental briefing "to determine whether a case presented [is] a controversy suitable for the Court’s review" or to address "a constitutional issue implicated, but not directly presented, by the question on which we granted certiorari."221 Similarly, the Court noted that it has previously appointed amicus curiae "to present argument in support of the judgment below when a prevailing party has declined to defend the lower court’s decision or an aspect of it."222 These cases illustrate "circumstances in which a modest initiating role for a court is appropriate."223 But again, the Supreme Court expressed that "this case scarcely fits that bill."224

On remand, the Ninth Circuit panel affirmed the defendant’s convictions in full.225 While not mentioning Justice Ginsburg’s stern rebuke, the panel heeded the Supreme Court’s instructions and analyzed only the as-applied challenge that had been raised by the defendant.226 In the end, Sineneng-Smith is a reminder that the appellate courts powers, however vast, cannot transcend the scope of the controversy presented by the parties.

[Page 28]

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Notes:

1. Cal. Const, art. VI, § 6.

2. Gov.Code, § 68115.

3. https://newsroom.courts.ca.gov/covid-19-and-courts/court-emergency-orders

4. April 29, 2020, Judicial Council Statewide Order, https://newsroom.courts.ca.gov/sites/default/files/newsroom/document/Chief_Justice_Statewide_Emergency-Order_04292020S.pdf

5. https://covid19.ca.gov/state-dashboard/

6. https://newsroom.courts.ca.gov/news/supreme-court-california-issues-statement-equality-and-inclusion

7. Legislature v. Padilla (2020) 9 Cal.5th 867.

8. (2020) 9 Cal.5th 989.

9. Id. at p. 1010; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 371, p. 428.

10. Id. at p. 1011.

11. Ibid.

12. Id. at pp. 1011–1012.

13. Id. at pp. 999, 1006.

14. King v. U.S. Bank Nat’l Ass’n (2020) 53 Cal.App.5th 675, 711; Johnson v. Monsanto Co. (2020) 52 Cal.App.5th 434, 455–456.

15. In re V.L. (2020) 54 Cal.App.5th 147, 155.

16. See, e.g., Welf. & Inst. Code, §§ 15657, 15657.05, 15657.05, 15610.57, 15610.63, and 15657.5 [attorney fees and costs, damages for the decedent’s pre-death pain and suffering, and employer’s liability in actions under the Elder Abuse and Dependent Adult Protection Act must be proven by clear and convincing evidence].

17. See, e.g., CACI No. 323 [waiver of a condition precedent requires proof by clear and convincing evidence]; CACI No. 4522 [waiver of written approval or notice of contractor’s change of work requires proof by clear and convincing evidence].

18. See, e.g., Labor Code, § 1102.6 [same-decision affirmative defense to liability for retaliation against a whistleblower].

19. See, e.g., Prob. Code, §§ 6110, 6211, 6453, 5302, 15207, 21380 [testamentary intent to validate unwitnessed will, survival of beneficiary, child held out as own, intent to leave Totten trust account to beneficiary not named, oral trust of personal property, and facts rebutting presumed fraud or undue influence in donative transfer to a caregiver or drafter, all must be proven by clear and convincing evidence].

20. See, e.g., Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1310 [prescriptive easement requires proof by clear and convincing evidence].

21. See, e.g., Code Civ. Proc., § 527.6 [unlawful harassment civil restraining order requires proof by clear and convincing evidence].

22. O.B., supra, 9 Cal.5th at p. 1005, fn. 6; McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 845–846 [independent review may be constitutionally required for findings by clear and convincing evidence of actual malice in defamation cases]; Yazdi v. Dental Bd. of California (1010) 57 Cal.App.5th 25 [in administrative mandate proceedings, the O.B. standard does not replace the independent review standard that trial courts use to review agency decisions for which clear and convincing proof is required, such as professional license revocation]; In re J.E. (2020) 54 Cal.App.5th 309, 313, review den. Dec. 30, 2020, S265077 [ordinary substantial evidence review was applied in juvenile wardship proceeding to determine sufficiency of evidence to support finding by clear and convincing evidence that a child under 14 understood the wrongfulness of her conduct, without mention of O.B.] but see id. at pp. 319, 324 [Streeter, J., dissenting]["[T]he majority’s application of the substantial evidence test on this record is insufficiently rigorous in light of the heightened standard of proof"] and Dec. 30, 2020, S265077 stmt. of Liu, J., dis. from review denial, p. 13 ["[T]he court’s analysis appears to misapply our recently established standard for reviewing questions of clear and convincing proof."]

23. (2020) 8 Cal.5th 875.

24. Id. at p. 878.

25. Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289, 294-295 & fn. 4.

26. See, e.g., id. at p. 292; see Cal. Rules of Court, rule 8.66(a)(2).

27. Rowan, supra, 54 Cal.App.5th at p. 292.

28. Ibid.; In re N.T. (Nov. 25, 2020, D077580) 2020 WL 6937996, at pp. *2, *4 [nonpub. opn.]; Bellospirito v. Pre-Paid Legal Servs. (Aug. 27, 2020, G059135) 2020 WL 5048911, at pp. *2-3 [nonpub. opn.].

29. (2020) 54 Cal.App.5th 289.

30. Id. at p. 297.

31. Ibid.

32. (2020) 55 Cal.App.5th 58.

33. (2020) 54 Cal.App.5th 275.

34. Reyes, supra, 55 Cal.App.5th at pp. 62, 67-69; Marshall, supra, 54 Cal.App.5th at pp. 277, 280, 284.

35. Reyes, supra, 55 Cal.App.5th at p. 69.

36. (2020) 46 Cal.App.5th 812, 824-829.

37. Id. at p. 826, citing Civ. Proc. Code, § 581, subd. (k) and Cal. Rules of Court, rule 3.770(c).

38. Id. at p. 826, citing Cal. Rules of Court, rule 3.770(c).

39. Id. at pp. 827-829.

40. Id. at p. 830.

41. Rowan, supra, 54 Cal.App.5th at p. 296; Marshall, supra, 54 Cal.App.5th at pp. 281-282; Reyes, supra, 55 Cal.App.5th at p. 72.

42. Rowan, supra, 54 Cal.App.5th at p. 296.

43. Id. at pp. 296-297.

44. Id. at p. 297.

45. Marshall, supra, 54 Cal.App.5th at pp. 281-283.

46. Ibid.

47. Id. at p. 283.

48. Reyes, supra, 55 Cal.App.5th at pp. 72-73.

49. Id. at p. 75.

50. (2019) 41 Cal.App.5th 1060, 1070-1071.

51. Id. at p. 1071.

52. (2020) 50 Cal.App.5th 111.

53. (2020) 52 Cal.App.5th 619.

54. Williams, supra, 50 Cal.App.5th at pp. 116-118; Garner, supra, 52 Cal.App.5th at p. 622.

55. Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal. App.5th 480, 492.

56. (2020) 53 Cal.App.5th 171, 183.

57. Ibid.

58. Patterson v. Padilla (2019) 8 Cal.5th 220, 223.

59. Id. at pp. 250-251.

60. Id. at p. 231 .

61. Id. at pp. 231-232.

62. Id. at pp. 250-251.

63. (2020) 56 Cal.App.5th 86.

64. Id. at p. 168.

65. Id. at p. 170.

66. Id. at pp. 168-169.

67. Id. at pp. 169-170.

68. Id. at p. 170.

69. Id. at pp. 170-174.

70. Id. at p. 172.

71. Ibid.

72. Ibid.

73. Ibid.

74. Amendments to the Cal. Rules of Court, Emergency Rules, rules 9 & 10, adopted by the Judicial Council of Cal., eff. Apr. 6, 2020.

75. Statewide Order by Hon. Tani G. Cantil-Sakauye, Chief Justice of California and Chair of the Judicial Council, March 23, 2020, at p. 2.

76. Amendments to the Cal. Rules of Court, Emergency Rules, rules 1 & 2, adopted by the Judicial Council of Cal., eff. Apr. 6, 2020.

77. Id., rule 8(b), adopted by the Judicial Council of Cal., eff. Apr. 6, 2020.

78. E.g., San Bernardino County General Order by Hon. Michael A. Sachs, Presiding Judge of the Superior Court, March 18, 2020, at p. 2.

79. Statewide Order by Hon. Tani G. Cantil-Sakauye, Chief Justice of California and Chair of the Judicial Council, March 23, 2020, at p. 2.

80. Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 166.

81. Davis v. Superior Court (2020) 50 Cal.App.5th 607, 617, fn. 4.

82. Statewide Order by Hon. Tani G. Cantil-Sakauye, Chief Justice of California and Chair of the Judicial Council, March 23, 2020, at p. 2.

83. Bullock v. Superior Court (2020) 51 Cal.App.5th 134, 140; Lacayo v. Superior Court (2020) 56 Cal.App.5th 396.

84. In re M.P. (2020) 52 Cal.App.5th 1013.

85. E.P. v. Superior Court (2020) 59 Cal.App.5th 52.

86. Code Civ. Proc., § 430.41, subd. (a).

87. Id., subd. (a)(2).

88. Id., subd. (a)(3)(B).

89. (2020) 45 Cal.App.5th 348.

90. Id. at p. 355, fn. 3.

91. Id. at p. 355.

92. (2019) 33 Cal.App.5th 502, 515.

93. Id. at pp. 509-510, 515.

94. Ibid.; see Dumas, supra, 45 Cal.App.5th at p. 355.

95. Dumas, supra, 45 Cal.App.5th at p. 355.

96. Ibid.

97. (2020) 45 Cal.App.5th 239.

98. Id. at pp. 240-241.

99. Id. at pp. 241-242.

100. Ibid.

101. Id. at p. 242.

102. Id. at p. 243, citing Code Civ. Proc., §§ 437c, subd. (f)(2), 1008, subd. (b).

103. Ibid.

104. Ibid.

105. (2020) 49 Cal.App.5th 506.

106. Id. at pp. 508-510.

107. Id. at pp. 510-511.

108. Id. at pp. 511-512.

109. Id. at p. 520.

110. Id. at p. 512.

111. Id. at p. 519.

112. Id. at p. 520, internal quotation marks omitted, quoting Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 399-400.

113. Id. at p. 518.

114. Id. at p. 520.

115. (2020) 51 Cal.App.5th 831.

116. Id. at p. 836.

117. Id. at p. 837.

118. Id. at pp. 837-838.

119. Id. at p. 838.

120. Ibid.

121. Id. at pp. 838-839.

122. Id. at p. 839.

123. Id. at p. 840.

124. Ibid.

125. Ibid.

126. Landis v. Pinkertons, Inc. (2004) 122 Cal.App.4th 985, 992; Code Civ. Proc., § 1284.

127. Id. at pp. 839, 842.

128. Id. at p. 844.

129. Id. at p. 845, internal quotation marks omitted, quoting Hightower v. Superior Court (2001) 86 Cal.App.4th 1415, 1432.

130. Id. at p. 846.

131. Ibid.

132. Id. at p. 843.

133. Ibid.

134. U.S. Cir. Ct. Rules (9th Cir.), rule 30-1.1.

135. Ibid.

136. See id., rule 30-1.4.

137. See id., note to rule 30-1.4.

138. See id., rule 30-1.4(a).

139. Id., former rule 30-1.6.

140. Id., rule 30-1.5(a), (b).

141. Id., former rule 30-1.6.

142. Id., rule 30-1.5(c).

143. Ibid.

144. Ibid.

145. Id., rule 30-1.6.

146. Ibid.

147. See The Appellate Lawyer Representatives’ Guide: To Practice in the United States Court of Appeals for the Ninth Circuit (Nov. 2019) Ninth Circuit Appellate Lawyer Representatives, p. 100 < https://bit.ly/2Yq9fyi > (as of Jan. 28, 2021).

148. Ibid.

149. Microsoft Corp. v. Baker (2017)___ U.S. ___[137 S.Ct. 1702, 1712, 198 L.Ed.2d 132], quoting McLish v. Roff (1891) 141 U.S. 661, 665-666 [12 S.Ct. 118, 35 L.Ed. 893].

150. See Concha v. London (9th Cir. 1995) 62 F.3d 1493, 1506-1509.

151. Id. at p. 1507.

152. (9th Cir. 2002) 283 F.3d 1064.

153. Id. at p. 1070.

154. (9th Cir. 2020) 954 F.3d 1267.

155. Id. at p. 1269.

156. Ibid.

157. Ibid.

158. Ibid.

159. Ibid.

160. Ibid.

161. Ibid.

162. Id. at pp. 1269-1270.

163. Id. at p. 1270.

164. Ibid.

165. Id. at pp. 1270-1271.

166. Id. at p. 1271.

167. Id. at p. 1272, quoting James, supra, 283 F.3d at p. 1069.

168. Id. at pp. 1271-1272.

169. Id. at p. 1272.

170. Ibid.

171. Ibid.

172. (9th Cir. 2020) 821 Fed. Appx. 771.

173. See Appellant’s Opening Brief (Feb. 28, 2019), Meeks, supra, 2019 WL 1096416, at pp. 4-7 (describing the facts).

174. Id. at p. 8.

175. Id. at pp. 8-12.

176. Meeks, supra, 821 Fed. Appx. at p. 773.

177. Id. at pp. 773-774.

178. Id. at p. 774.

179. Ibid.

180. See id. at pp. 774-76 (dis. opn. of Miller, J.).

181. Id. at pp. 774-75.

182. Id. at p. 775.

183. Ibid.

184. (9th Cir. 2020) 978 F.3d 1068.

185. Id. at pp. 1071-1072.

186. Id. at p. 1072.

187. Ibid.

188. Id. at pp. 1072-1074.

189. Id. at p. 1074.

190. See id. at pp. 1072-1073.

191. Id. at p. 1073, quoting Fed. Rules Civ.Proc., note to rule 58.

192. Id. at p. 1074.

193. Ibid.

194. Id. at p. 1081.

195. (9th Cir. 2020) 968 F.3d 1014.

196. Id. at pp. 1016-1017.

197. Id. at pp. 1017-1018, quoting Scott v. Younger (9th Cir. 1984) 739 F.2d 1464, 1467.

198. Id. at p. 1018, citing Mitchell v. Forsyth (1985) 472 U.S. 511, 530 [105 S.Ct. 2806, 86 L.Ed.2d 411].

199. Id. at p. 1018, quoting Cohen v. Beneficial Indus. Loan Corp. (1949) 337 U.S. 541, 546 [69 S.Ct. 1221, 93 L.Ed. 1528].

200. Id. at p. 1018, quoting Lora v. O’Heaney (2d Cir. 2010) 602 F.3d 106, 111-112.

201. Ibid.

202. See Lora, supra, 602 F.3d at p. 112.

203. Hanson, supra, 968 F.3d at pp. 1018-1019, quoting Powell v. Miller (10th Cir. 2017) 849 F.3d 1286, 1289.

204. Id. at p. 1018.

205. (2020)___U.S.___[140 S.Ct. 1575, 206 L.Ed.2d 866].

206. Id. at p. 1579.

207. Id. at pp. 1577-1578.

208. Id. at p. 1580.

209. Ibid.

210. Ibid.

211. Id. at pp. 1580-1581.

212. Id. at p. 1581.

213. Ibid.

214. Ibid.

215. Id. at p. 1579.

216. Id. at p. 1581.

217. Ibid.

218. Id. at pp. 1581-1582.

219. Id. at p. 1582.

220. Id. at pp. 1582-1583.

221. Id. at p. 1583.

222. Id. at pp. 1582-1583.

223. Id. at p. 1579.

224. Ibid.

225. United States v. Sineneng-Smith (9th Cir. 2020) 982 F.3d 766, 776-777.

226. See id. at pp. 775-776.