Wiggling out of appellate bonding

Appellate Specialist Dan Barer points out today's published opinion on avoiding bonding:

In Guzman v. Superior Court (Wigle), published today, the 3d DCA affirms an order granting relief under CCP § 995.240—giving courts discretion to waive a bond provision if the court determines the principal is unable to give the bond because the principal is “indigent and unable to obtain sufficient sureties”—to a judgment debtor with $1.75 million in assets who is appealing a $20 million personal injury judgment. The appellate court rejects the argument that the term “indigent” means “extreme poverty,” and concludes that “indigent” means any person who is unable to obtain sufficient sureties, whether or not the person is destitute.  “Instead, trial courts retain discretion to evaluate each request for relief under the statute and against the traditional understanding of indigency that is tied to equal access to justice.”

Remittitur controls over precedent split

The MetNew has C.A. Permits No Deviation From Direction of Remanding Court Despite New Case Law -- Opinion Signals That Prerogative of Trial Judge to Follow Decision From Another Appellate District Does Not Extend to Disregarding Remittitur -- about this unpub from 2/3 here.

CRC 8.1115 "disapproval"

What does "disapproved" mean in CRC 8.1115(3)(2) ("After decision on review by the Supreme Court, ... a published opinion of a Court of Appeal in the matter, ... is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.")? Well, per this published opinion from 1/5 today here, a reversal is an "unambiguous disapproval."

The fact that the court did not reach the merits of our analyses is inapposite. Having determined that the decision should be reversed because of new legislation, the court was not required to further signal its disapproval by adding a gratuitous, advisory discussion of the law that existed prior to the change.

See also on Law360 Supreme Court Term Limits Would Carry Hidden Risk

If we get that answer wrong, term limits could create a situation worse than the status quo: a permanent cadre of brand-name ex-justices leveraging their Supreme Court service in private practice, politics and business — precisely the kind of elite influence that term limit advocates say they want to curb.

And see Michael J. Broyde and Hayden Hall's Akron Law Review article: Do We Really Want Retired U.S. Supreme Curt Justices Practicing Law? (forthcoming, 2026). Available at SSRN:https://ssrn.com/abstract=5771063orhttp://dx.doi.org/10.2139/ssrn.5771063

Appellate tidbits

A couple case notes:

In this published opinion from the 3d, the court dismisses an appeal from a sanctions order as non-appealable (see pp. 26-29).

In this nonpub from 2/3, the court denies a motion to dismiss an appeal (arguing that the right to appeal was waived by voluntarily satisfying the judgment in full):

“[W]hen there has been a payment of the judgment by the appellant, he does not lose his right to appeal if it is compulsory, such as under execution or other coercion.” (Reitano v. Yankwich (1951) 38 Cal.2d 1, 3 (Reitano).) Payment of a judgment is presumed compulsory unless the payment was made “ ‘by way of compromise and settlement or under an agreement not to appeal or under circumstances leaving only a moot question for determination.’ [Citation.]” (Id. at p. 4; see also Retzloff v. Moulton Parkway Residents’ Assn., No. One (2017) 14 Cal.App.5th 742, 748 (Retzloff).) A respondent, as the moving party, has the burden to demonstrate that the parties entered into a compromise and settlement or an agreement not to appeal. (Coldwell Banker & Co. v. Department of Insurance (1980) 102 Cal.App.3d 381, 401.)

In the DJ, Justice Hoffstadt has Legacies: Reclaiming civility and upholding the rule of law -- The evolution of the legal profession over recent decades -- marked by gains in diversity and technology but a troubling decline in civility -- underscores the need for lawyers to recommit to the profession's noble, mentorship-driven traditions to preserve our collective legacy and strengthen the rule of law.

From what I have personally observed (which is all I can speak to firsthand), there has been a notable backsliding in civility in our profession. Filings are more commonly sprinkled with histrionic hyperbole and ad hominem attacks, and are more often accompanied by appendices attaching e-mail exchanges between counsel that positively drip with vitriol and contempt. Filings seem quicker to accuse judges of being biased, prejudiced, "on the take," or fools. And counsel during proceedings are more often confrontational, rude or disrespectful to the bench and to opposing counsel. Counsel also seem more willing to make 10 arguments in a filing instead of three, and as a consequence, to make arguments that border on the frivolous.

And note from Law.com US Lawyer Head Count Reaches All-Time High -- Currently, there are 1,374,720 lawyers in the U.S. as compared to 1,355,963 in 2024—a 1.38% increase from 2024, according to the ABA’s 2025 Profile of the Legal Profession.

Collateral order appeals re proceeding pseudonymously

If a trial court grants an order allowing parties to proceed using pseudonyms, is that order appealable? Today's opinion from 2/2 here says "yes," reasoning thusly: 

Orders concerning the sealing of documents are appealable as collateral orders. This is true whether the order is to seal or to unseal. An order to redact a document is also appealable as a collateral order. While there is no specific case applying this rule in the context of an order allowing a party to proceed under a pseudonym, we conclude the reasoning is the same. “Much like closing the courtroom or sealing a court record, allowing a party to litigate anonymously impacts a First Amendment public access right.” Here, the order is final on the collateral matter of allowing the parties to proceed with pseudonyms and is not subject to future proceedings.

[The MetNews has Judge Erred in Allowing Plaintiffs to Sue as ‘Doe’ and ‘Roe’ -- Opinion Says Parties Seeking Anonymity Must Make Showing That Public’s Right to Know Is Outweighed]

Vexatious litigants on appeal

Q: Can the Court of Appeal sua sponte declare a vexatious litigant?
A: You betcha. See yesterday's Kouvabina v. Veltman:

• "Kouvabina contends appeals do not constitute “litigation” within the meaning of section 391.  California courts have consistently held to the contrary."
• "Kouvabina next argues her appeals do not constitute “litigation” within the meaning of section 391 because they “arose from [her] efforts to defend herself against Veltman’s affirmative claims.”  For various reasons, we disagree." 
• "To the extent she implies the vexatious litigant statutes do not apply — or apply differently — to dissolution matters, we disagree.  The Legislature could have exempted family law matters — as it exempted small claims actions in section 391(b)(1) — but it did not.  To the contrary, Family Code section 210 explicitly provides that the vexatious litigant statutes apply to family law proceedings."

See Prof. Martin's take here. And the MetNews article Commission on Judicial Performance Attorney Is Declared ‘Vexatious Litigant’, which includes comments from Ms. Kouvabina.

Federal minute orders appealable

This 9th Cir. opinion today here teaches that a district court's minute order can constitute a 'separate document' for purposes of triggering the time to appeal. So look out for an "unadorned minute order that clearly and unequivocally" dumps a case from federal court!

See Prof. Martin's take here.

"you can't get there from here"

 

4/3 issues this unpub with this cute line:

Although this appeal presents many issues and requires extensive analysis, our decision can be expressed simply by that well-known saying from Maine, “you can’t get there from here.”

Possession-only judgment not appealable...

2/7 issues a published opinion on appealability in UD cases:

We transferred this case from the appellate division of the superior court to decide whether a tenant can appeal a judgment for possession in an unlawful detainer proceeding if the landlord has outstanding damages claims that have not been adjudicated. The answer is no. If the landlord’s complaint seeks damages, the possession-only judgment is not appealable because it does not resolve all rights of the parties.

CalMatters has California doesn’t have enough court reporters. Their unions are fighting substitutes

Motion in limine appeal?

 Today's appealability opinion from 4/3:

This case presents us with an unusual situation: an appellant appealing directly from an order on a motion in limine, and with published authority supporting the proposition that such an appeal is possible. We dismiss the appeal and publish this opinion to express our disagreement with that authority and our view that this type of order is properly reviewed only by writ petition or by appeal from the final judgment.

The MetNews' article is: Order on Admissibility of Expert Testimony by Attorney Is Nonappealable, C.A. Declares -- Fourth District’s Div. Three Rejects Reasoning in Contrary Decision Handed Down in 2004

Judicial economy saves appeals...

 

In a couple unpubs today, the Court of Appeal saves defective appeals from orders sustaining demurrers:

• "in the interest of judicial economy, we will construe the order sustaining the demurrer without leave to amend as a final appealable judgment. (Cardenas v. Horizon Senior Living, Inc. (2022) 78 Cal.App.5th 1065, 1069.)" [here]
• "The record is unclear whether any judgment was entered in this case. “[A]n order sustaining a demurrer without leave to amend is ordinarily not appealable since the order is not a final judgment.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485, fn. 9.) No party raises the issue. “[I]n the interest of judicial economy, we shall deem the order to incorporate a judgment of dismissal.” (Smith v. Hopland Band of Pomo Indians (2002) 95 Cal.App.4th 1, 3, fn. 1.)" [here]

Another interesting appealability fight is here:

• "even if a portion of the judgment may be construed as an “order” denying injunctive relief, such order is not appealable under section 904.1(a)(6)"

But then see this unpub here.

Appellate tidbits

Bloomberg Law has this article about a new 11th Circuit Judge: Embry Kidd to Join Thin Ranks of Black Male Circuit Judges

The US Senate confirmed only the second Black man to a federal appeals court in the past decade, despite President Joe Biden’s emphasis on expanding the diversity of the federal judiciary. The Democratic-led chamber voted 49-45 to send Embry Kidd to the US Court of Appeals for the Eleventh Circuit. ...

Biden has now appointed 45 appellate judges, including 13 Black women, Kidd becomes only the second Black man confirmed for such a role under the president, according to Federal Judicial Center data. The other was Andre Mathis, who was confirmed to the Sixth Circuit in 2022. ... Prior to Mathis’ appointment, the last Black male appellate appointee was DC Circuit Judge Robert Wilkins. He’s an Obama nominee who was confirmed in 2014.

Here in California, see Ethics Committee Advises Judges on Responding to Public Criticism -- Committee issues formal opinion discussing ethical guidelines for judges who want to make a public comment on a pending proceeding during a judicial election or recall campaign.

And here's an upub from 2/8 that addresses the party presentation doctrine. But see this unpub from the 6th District, at footnote 6... And here's a published opinion on appealability--or, really, the non-appealability of an order granting nonsuit and dismissing a cross-complaint without prejudice. 

There's a short video here: 2024 Distinguished Service Award Honoree -- Justice William Bedsworth -- During his career on the bench, Justice Bedsworth’s legal opinions have spanned many topics, but he is recognized by lawyers for his writings on civility within the profession. Justice Bedsworth served on California's Civility Task Force, and was an outspoken voice committed to improving civility between opposing counsel and between lawyers and the bench. Equally acclaimed for his writings off the bench, through his syndicated monthly column—A Criminal Waste of Space—Justice Bedsworth has educated and entertained lawyers and non-lawyers alike.

Opinion opener

 

In this published opinion today, PJ Gilbert gets "punny" with this opening:

     Many Californians have high expectations that cannabis is legal in California.  This is a reasonable assumption because Civil Code section 1550.5 says it is.

     We regret to inform that cannabis is illegal in California because federal law says so.  

Novel opening paragraph

Here's an unusual starting paragraph to this unpub from 4/3:

It is the rare case that leaves us scratching our heads and asking, “Why are we here?” This is such a case. The parties are in full agreement as to the relief sought by the appeal yet remain two ships passing in the night. The underlying action was settled, the settlement has been fully satisfied, and plaintiff HK Hong Mei Tang International Co. Limited (HK) already agreed in a writing filed with the trial court to the very relief sought by defendants Grace Hua Wu and Asia Pacific TW International Inc. (collectively, Wu) on appeal—that the judgment entered against them on July 27, 2023 (the July 27, 2023 order and judgment), be vacated and the action be dismissed with prejudice. Yet still, here we are.

The NLJ has At Supreme Court These Days, the Liberal Justices Are 'Textualists' Too

Kagan considers herself a "good textualist" and consistently credits the late conservative Justice Antonin Scalia, her former hunting buddy, with making the plain language of the law the central focus of modern statutory interpretation cases. She's not afraid of calling out her colleagues, particularly her Republican-appointed ones, when she thinks they're falling short of the standard they themselves claim to follow.

Show some respect!

4/3 publishes this opinion today that takes a detour from the merits to discuss appellate brief-writing ethics:

But before we more fully discuss the search and seizure issues, there is another issue we need to address in this opinion: the respect attorneys owe to trial court judges when challenging their rulings on appeal.

It is also a long-standing rule that an appellate brief “containing matter manifestly disrespectful toward the trial judge is to be deemed contempt of the appellate court.”

At oral argument, the district attorney’s deputy (not the author of the briefs) was challenged about the propriety of using the word “fabricated” when referring to the trial court’s ruling. The deputy theorized that the “purport” of his colleague’s written argument was that the trial court’s ruling “was inconsistent with or contrary to established precedent.” When pressed further, the deputy went on to say, “I’m certain that we didn’t intend to suggest that the court had bad faith in making its ruling.”

We accept the representation of the district attorney (through his deputy) that he did not intend to suggest that the trial court had acted in bad faith when making its ruling. Indeed, the prosecutor who appeared at the hearing on the motion (and authored the appellate briefs) was gracious and respectful to the trial court judge. However, the written assertions in the district attorney’s briefs that the trial court “fabricated” a legal theory are nonetheless subject to misinterpretation and are unacceptable.

We advise the district attorney in the future to be more cautious and consider his language more carefully when challenging a ruling of a trial court in an appellate brief, or he may be subject to sanctions. Words are to lawyers, as scalpels are to surgeons. They are tools to be used with precision.

Along these same lines, see footnote 22 of this 9th Circuit opinion published last week:

Counsel for [Appellant] is advised to review Federal Rule of Appellate Procedure 28 and our corresponding Circuit Rules, which require parties to present accurate and reliable support for their claims on appeal. Grant v. City of Long Beach, 96 F.4th 1255, 1256 (9th Cir. 2024).

Be still, Meinhardt!

In today's opinion in Meinhardt v. City of Sunnyvale the Cal Supremes finally resolve an appellate annoyance by creating a clear rule:

we adopt a “bright line[]” rule [cite] that the time to appeal in administrative mandate proceedings starts to run with entry of “judgment” or service of notice of entry of “judgment,” rather than with the filing of, or service of notice of the filing of, an “order,” minute order, or other ruling.

 

[7/30 update: the MetNews has S.C. Adopts Timeliness Bright-Line Rule for Appeals of Writs of Administrative Mandate]

2/4 overrules 2/4

Today's must-read appellate opinion is Cohen v. Superior Court -- an "appropriate and rare case" where 2/4 "overrules" a prior 2/4 opinion from 2002.

Opinion tackles appealability of stipulated judgments

2/7 publishes an interesting opinion today on appealability here:

This case presents an unusual set of circumstances. We first address the appealability of the parties’ stipulated judgment and conclude that, while we have serious reservations about its appealability, we are required to give effect to the parties’ intent to obtain appellate review of the trial court’s demurrer ruling.  This appeal—involving what one amicus curiae characterizes as a “cherry-pick[ed]” respondent—is at the outer limits of what constitutes a justiciable case. As explained further below, the exception allowing appeals from stipulated judgments warrants revisiting from the California Supreme Court as the Courts of Appeal have been unable to craft reasonable limits on it given the expansive language with which the exception was articulated in Norgart.

Shorter is better?

How often have heard that shorter briefs are better? Even so, too short a brief is an even worse problem, as this pro per learned here: "[Appellant's] 1.5-page opening brief does not comply with the California Rules of Court." The unpub from 1/5 is 1.5 pages long itself!

And don't forget that Monday is a state court holiday!

2/8 publishes an interesting anti-SLAPP opinion today here, which also sets for the standard for appellate sanctions.

The ABA Judicial Division Appellate Judges Conference is presenting a Webinar on April 5 at 1 p.m. EST: A Lexicon is Not a Fortress -- Law & Linguistics -- The panel will discuss the use and misuse of dictionaries in judicial opinions. It will offer guidance on how advocates and courts can use them better.

More appellate poetry!

2/1 starts off this unpub (in a spite-fence nuisance case) like this:

The poet Robert Frost observed that although good fences may make good neighbors, before building one might “ask to know What I was walling in or walling out, And to whom I was like to give offence.” (Frost (1914) “The Mending Wall.”)

Also, here's an appellate job opening: The Fourth District, Division One, in San Diego, will now be accepting applications for a Chambers Appellate Court Attorney (Level A- Senior). The job can be found on the courts career website under job ID 6109. The application deadline is December 29, 2023.