Request for Dismissal May Constitute Appealable Final Judgment: Say What?

  Final judgments are appealable. Some orders are appealable. The time to appeal is jurisdictional. If you appeal from an order or judgment too late, your appeal must be dismissed. California Rules of Court, Rule 8.104 sets forth the time to appeal in an unlimited civil case. The general rules for time to appeal are as follows: One must file the appeal on or before the earliest of the following: Continue reading

Abuse of Discretion: What Does it Mean?

  In law school we learned the value of reading dissenting opinions. If you have ever wondered what “abuse of discretion” means and how to convince an appellate judge that a trial court abused its discretion – or how to convince a trial judge in the first instance how discretion should be exercised – this concurring and dissenting opinion by Justice Rubin in Gaines v. Fidelity National Title is worthwhile reading. The bookmark is at page 27.

Laches Bars Probate Petition; Filing, Not Service, Determines Timeliness of Petition

  Laches is an equitable defense which may be asserted when unreasonable delay in bringing a cause of action results in prejudice. While the statute of limitations specifies the outside time limit within which a cause of action must be brought, laches considers the totality of circumstances surrounding delay, and any resulting prejudice, to deny a remedy when a claimant has “slept on his rights.” Continue reading

Need to Stay Execution of a Money Judgment? Beware if Writ of Execution Issued

  The enforcement of a money judgment may be stayed by the filing of a timely notice of appeal and posting sufficient undertaking. If the bond is posted by an admitted surety the bond must be in the sum of one and one-half times the amount of the judgment; otherwise, twice the amount. See, Code of Civil Procedure section 917.1(b). Continue reading

The Disentitlement Doctrine: What’s That?

  The “disentitlement doctrine” allows an appellate court to dismiss an appeal by a party who has refused to comply with a lower court order. When a party stands in contempt of a lower court order there is no right to have an appellate court hear his demands on appeal and the appeal may be dismissed. Continue reading

Non-Aggrieved Party Lacks Standing to Appeal

  The right to appeal is purely statutory. Code of Civil Procedure section 902 defines who may appeal from a judgment. The statute provides that “any party aggrieved” may appeal from an adverse judgment. The test is twofold. One must be both: 1) a party of record to the action; and 2) aggrieved — to have standing to appeal. Thus, notwithstanding an appealable judgment or order, an appeal may be taken only by a party who has standing to appeal. Standing is a jurisdictional requirement and cannot be waived.

  One is considered aggrieved whose rights or interests are injuriously affected by the order or judgment in an immediate and substantial way, and not as a nominal or remote consequence of the decision. [See, In re K.C.] Conversely, a party who is not aggrieved by an order or judgment has no standing to attack it on appeal. Injurious effect on another party is insufficient to give rise to appellate standing. Appellate courts provide relief for appellants who have been wronged by trial court error – not for appellants that have suffered no wrong but instead seek to advance the interests of others who have not complained. Continue reading

Revival Validates Earlier Timely Notice of Appeal Filed When Corporate Powers Suspended

  The California Supreme Court affirms, in Bourhis v. Lord,  that a corporation whose powers have been suspended for failure to pay taxes may file a notice of appeal and proceed with the appeal provided those powers have been revived — even if the revival occurs after the time to appeal has expired.

  Filing a timely notice of appeal is a jurisdictional requirement. The court reasoned, relying on two prior opinions of the Courts of Appeal, that what is jurisdictionally required is that the notice of appeal be timely — not that it be filed by an active corporation. If notice of appeal is timely, even if invalid when filed, a corporation’s later reinstatement through revival makes the earlier, invalid but timely, notice of appeal valid.

  I consult with clients and accept cases involving appeals and appellate procedural issues of jurisdiction such as the notice of appeal. For other types of cases I accept, please consult the My Practice page. If you are seeking a legal consult or representation, please give me a call at 818.971.9409. – Michael Daymude

Self-Represented? Do Not Prosecute That Appeal Without Counsel

  Unpublished opinions are a wonderful source of well-settled law and the legal principals upon which it is based. One such recent case is Estate of Hickey. Hickey involved the frivolous appeal of various probate court orders by a self-represented non-attorney. If you are self-represented and are considering an appeal of an order or judgment which you intent to prosecute yourself  – the opinion is suggested required reading. Hopefully your eyes will be opened to the difficulties and danger you face as an untrained and unskilled appellant. You will decide, instead, to retain qualified counsel — to help you decide whether an appeal is in your best interests and, if so, to draft your opening brief.

Who Can Appeal a Small Claims Judgment?

  The short answer is only the defendant. However, if you are a plaintiff and the defendant filed a counter-claim against you and you lose on that claim, you can appeal. Since the appeal is from the judgment, and a small claims appeal is a trial de novo, it is an appeal of the entire case and both claims will be decided anew. Want proof? See, Code of Civil Procedure Sections 116.710(a),(b) and 116.770(d).

New Trial Required Before Labor Code Section 98.2(c) Becomes Operative Against Employee

   An employee that has a wage claim against an employer may file a claim with the Labor Commissioner or may file a suit for breach of contract in Superior Court. Claims adjudicated by the commissioner do not provide for attorney fees. If either party is unsatisfied with the commissioner’s decision, an appeal may be taken to the Superior Court.

   However, Labor Code section 98.2, subdivision (c) provides that if a party files an appeal in the superior court seeking review of the Labor Commissioner’s decision and is unsuccessful, the court shall determine the reasonable attorney fees and costs incurred by the other parties to the appeal and assess that amount as a cost upon the party filing the appeal. The subsection specifically provides that an employee is successful on appeal if the court awards an amount greater than zero.

   What is the rule when an employee appeals and the appeal is dismissed on jurisdictional grounds because the appeal was not timely and the employee did not, therefore, achieve an award greater than zero in the Superior Court? Continue reading