The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Retiring Chief Justice Ronald M. George — First of a Series

By Kirk Jenkins on Posted in California

On January 3, 2011, the twenty-seventh Chief Justice of California, Ronald M. George, will conclude over thirty-eight years of service on the California bench. To mark the retirement of this great California jurist, we begin a four part profile on state’s third longest-serving Chief Justice.

Born in March 1940, Chief Justice George graduated from Beverly Hills High School in 1957. Following high school, the Chief attended the Woodrow Wilson School of Public and International Affairs. At the time, he planned to make his career in the Foreign Service.

All that changed at age nineteen, when he spent the summer between his sophomore and junior years in college hiking around West Africa and meeting American diplomats. "Most of them seemed to just be congregating amongst themselves and having very little contact with the local populace and not having much, if any, of an impact on the problems of the area," the Chief Justice recalled in a 1996 newspaper profile.

So he decided to attend law school. "I decided . . . that a law degree would offer the most options for whatever form of public service I might choose to pursue." The Chief Justice graduated from Stanford Law School in 1964.

Following law school, the Chief Justice joined the Attorney General’s office as one of then-Attorney General Stanley Mosk’s deputies. During seven years in the Attorney General’s office, the Chief Justice handled a number of high-profile cases. The Chief was unsuccessful in one of his highest profile cases, People v. Anderson, where the Supreme Court struck down California’s death penalty, but he prevailed not long after that in People v. Sirhan, where the Court affirmed the conviction of Sirhan Sirhan for assassinating Senator Robert F. Kennedy.

Chief Justice George served as counsel and argued six cases before the United States Supreme Court, including several which are still familiar to criminal law practitioners: Chimel v. California (invalidating warrantless search of entire house in connection with arrest of burglary suspect); Hill v. California (approving search incident to arrest, although police arrested the wrong person) and McGautha v. California (allowing jury to choose between life or death without governing standards not unconstitutional in capital cases) All together, the Chief Justice handled over one hundred appeals and writs, ending his career in the AG’s office with a year as Administrative Assistant in charge of the Los Angeles office.

Join us tomorrow as we turn to the early years of the Chief Justice’s judicial career.

Florida Supreme Court: Failure to Timely Move for Mistrial After an Objection to Attorney Misconduct Is Sustained Waives Motion for New Trial on That Basis Absent Fundamental Error

By on Posted in Florida

Resolving an express conflict between the District Courts of Appeal, the Florida Supreme Court held that when a party objects to instances of attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court’s review of a motion for new trial.  If the issue is not preserved in this manner, the conduct may still be subject to fundamental error analysis.  Ramiro Companioni, Jr. v. City of Tampa, 35 Fla. L. Weekly S738a (.pdf)

In the underlying case, Plaintiff sued the City of Tampa for personal injuries.  Throughout the trial, the City objected to several instances of misconduct on the part of Plaintiff’s counsel.  Although the objections were sustained, the City did not move for a mistrial.  After judgment was entered in favor of Plaintiff, the City moved for a new trial alleging that the cumulative effect of opposing counsel’s misconduct throughout trial deprived it of a fair trial.  The trial court found that although Plaintiff’s counsel’s conduct was so pervasive and prejudicial that it impaired the City’s right to a fair trial, the City had not moved for a mistrial and the conduct was not so extreme that “it would undermine the public’s confidence in the judicial system,” and on that basis denied the City’s motion.  The City appealed to Florida’s Second District Court of Appeal, which reversed the denial of a new trial based on the holding that the City’s contemporaneous objections to the misconduct were sufficient.  The Second District did not reach the separate issue of whether the complained of misconduct constituted fundamental error.  Because the Second District’s holding was in direct conflict with other appellate courts in Florida, the Florida Supreme Court accepted discretionary review.

The Court analogized the need for moving for a mistrial with the contemporaneous objection rule: 

“…failure to alert the trial judge that an error may be incurable results in delay and wastes judicial resources, especially if the error complained of occurs early on in the proceedings.  In cases such as the instant case where the trial judge sustains an objection, the trial judge is not put on notice that any further action is needed.  Without a request for mistrial or a curative instruction, the trial judge presumes that the objecting party has been satisfied that the error has been cured.”

As such, the Court quashed the Second District’s decision and remanded the case for consideration of whether the trial court abused its discretion in denying a new trial under a fundamental error analysis.

Justice Kagan and the Future of Generic Drug Preemption

By on Posted in Drug & Device

US Supreme Court Will Decide Fate of Preemption Defense for Generic Companies this Term

Since the decision of the Supreme Court in Wyeth v. Levine, 129 S.Ct. 1187 (2009), the Eighth Circuit (in Mensing v. Wyeth, Inc., 588 F.3d 603 (8th Cir. 2009)) and the Fifth Circuit (in DeMahy v. Actavis, Inc., 593 F.3d 428 (5th Cir. 2010)) have both concluded that failure-to-warn claims against generic drug manufacturers are not automatically preempted by the federal Food, Drug and Cosmetic Act’s (FDCA) requirement that generic labeling conform to the approved labeling for the innovator drug.  Last Friday, the United States Supreme Court agreed to decide whether a plaintiff’s state-law failure-to-warn claim against a generic drug manufacturer for failing to modify its labeling to include warnings that differ from the name-brand equivalent is preempted by the FDCA’s requirement that the label for a generic drug be the same as the label for the brand-name counterpart.  Against the advice of acting solicitor general, Neil Katyal, the Court agreed to address the issue in three cases Pliva v. Mensing, 09-993; Actavis v. Mensing, 09-1039; and Actavis v. DeMahy, 09-1501 and consolidated them for review. 

Since a majority of all drug prescriptions (approximately 75 percent) are now filled with generic drugs, the impact of this decision will be widespread.  The stakes are enormous for consumers and the generic pharmaceutical industry alike.

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California Confirms Four Appointments to the Third Appellate District

By on Posted in California

Following the recent retirement of Justices Scotland and Sims, as well as the elevation of Justice Tani Cantil Sakauye to the California Supreme Court, the California Commission on Judicial Appointments has now confirmed four appointments for the Third Appellate District. First, Associate Justice Vance W. Raye, who has served on the Court of Appeal, Third Appellate District since 1991, was confirmed as Presiding Justice. The Commission also confirmed three new associate justices for the Third Appellate District:

  • Judge Elena J. Duarte, who has served on the Superior Court of Sacramento County since 2008, having also served as a Superior Court Judge in Los Angeles (2007-2008), and as an Assistant U.S. Attorney for the Central District of California (1994-2007).
  • Ms. Andrea Hoch, who has served as the Governor’s Legal Affairs Secretary since 2005, having previously served as the Administrative Director of the Division of Workers’ Compensation (2004-2005) and in the Office of the Attorney General (1992-2004).

Orders Compelling Compliance with a Legislative Subpoena Are Appealable in California

By on Posted in California, Civil and Appellate Procedure

While avoiding the marijuana legalization debates raging in the state, the California Supreme Court confirmed that orders compelling five medical marijuana dispensaries to comply with subpoenas issued by the City of Dana Point were appealable, reversing the dismissal by the Court of Appeal in these consolidated cases. In Dana Point Safe Harbor Collective v. Superior Court, S180365, the Court held that the order enforcing the legislative subpoena and compelling the production of documents was a final order for purposes of an appeal, returning the matter to the Fourth Appellate District, Division Three, of the Court of Appeal for further proceedings. In doing so, the Supreme Court specifically declined to address the ancillary issue of whether an appealing party is entitled to a stay of enforcement of the subpoena pending appeal. Having resolved a split in the Courts of Appeal, the Supreme Court disapproved Bishop v. Merging Capital, Inc.(1996) 49 Cal.App.4th 180, People ex rel. Franchise Tax Bd. v. Superior Court (1985) 164 Cal.App.3d 526, and Barnes v. Molino (1980) 103 Cal.App.3d 46, to the extent they are inconsistent with its holding. For more details regarding Dana Point Safe Harbor Collective, see the Appeals & Writs update page.

When “Ocean View” Suddenly Becomes “On the Beach”: Texas Supreme Court Tackles Rolling Easements

By on Posted in Texas

Under Texas law, the public has an easement to access dry beaches. This easement extends landward to the vegetation line. A recent Texas Supreme Court case examined the validity of the easement when a hurricane suddenly alters the beachfront.

The property owner had constructed a house behind the vegetation line in the West Beach area of Galveston Island. Hurricane Rita caused sudden and dramatic beach erosion and the house was now seaward of the vegetation line. When the state attempted to enforce the public easement, the property owner initiated litigation in federal court arguing that the state was engaged in an unconstitutional “taking” of private property. Ultimately, the Fifth Circuit certified a question to the Texas Supreme Court regarding whether the public beach access easement “rolled” into previously unencumbered private property when storms altered the shoreline.

The Supreme Court distinguished between mere beach erosion and avulsion, a sudden and dramatic change in the shoreline. The beachfront is constantly changing due to natural forces and both the public and the property owner are properly charged with notice that their respective rights may be altered. In avulsion cases, however, the change is too sudden for the parties to adjust their behavior. Consequently, the public beach easement does not roll landward into previously unencumbered private property.

While the opinion provides some protection for property owners who build near beaches, it also places the precise boundary of the public easement into doubt. The vegetation line is no longer a reliable boundary in all cases.

A Busy Month For the Economic Loss Rule

By Kirk Jenkins on Posted in Commercial Law, Products Liability

In the first three weeks of November, we’ve already seen two major decisions on the economic loss rule from two state Supreme Courts. The economic loss rule provides in most states that a plaintiff cannot sue in tort for disappointed commercial expectations, regardless of whether he had a contractual agreement with the defendants.

On November 4, a badly fractured Washington Supreme Court filed three separate opinions in Eastwood v. Horse Harbor Foundation, Inc. [pdf]

Eastwood arose from a lease on a horse farm. The owner accepted rent below the market rate in return for a promise to maintain, a covenant the lessee allegedly failed to keep. The owner sued for breach of the lease, negligence and waste. Nobody raised the economic loss rule before the trial court, and plaintiffs won. On appeal, nobody argued the economic loss rule. Nevertheless, the Court of Appeals held that the economic loss rule barred the negligence and waste claims.

The Supreme Court reversed.  According to the plurality, the economic loss rule — which the Court renamed the "independent duty rule" — isn’t a rule at all. It simply means that a court decides on a case by case basis whether there is an independent tort duty involved under the facts presented:

An injury is remediable in tort if it traces back to the breach of a tort duty arising independently of the terms of the contract. The court determines whether there is an independent duty of care, and ‘the existence of a duty is a question of law and depends on mixed considerations of logic, common sense, justice, policy, and precedent.’

The plurality acknowledged that some courts have established a bright-line rule dividing economic losses from personal injury and property damage, but at least according to the plurality — despite having apparently received the negotiated rent payments — Eastwood hadn’t received the benefit of its economic bargain. The plurality concluded that waste was a duty independent of the contract, so the "independent duty rule" didn’t bar the claim.

Both concurrences argued that the plurality’s analysis was largely unnecessary. According to Chief Justice Barbara Madsen and Justice Gerry Alexander [pdf], the case should have been easy: first, separation of powers barred the court from using the economic loss rule to wipe out a statutory cause of action for waste, and second, since Eastwood had received the benefit of the bargain — rent payments — the suit didn’t seek economic loss anyway. In a concurrence signed by four members of the Court, Justice Tom Chambers wrote that a lot of the confusion surrounding the economic loss rule could be traced to the definition of "economic loss" in the Washington Product Liability Act, which encompassed virtually anything that could be expressed in dollars and cents. Justice Chambers wrote that Washington had never applied the rule outside the context of products liability, real property construction and property sales.

On November 15, the New Jersey Supreme Court weighed in with Dean v. Barrett Homes, Inc. [pdf] The homeowners bought a house fitted with synthetic stucco walls. A year after buying the house, the owners noticed damage to the walls; they hired an industrial hygienist, who found toxic mold. Plaintiffs sued, arguing that the synthetic stucco was defective. The trial court granted summary judgment, holding that plaintiffs’ claims were barred by the economic loss rule, and the Appellate Court affirmed.

The Supreme Court reversed in part. Although the economic loss rule applied to plaintiffs’ claims, the Court held that the doctrine did not fully bar the claim. The Court held that the integrated product doctrine — which provides that the economic loss rule bars a claim for damage to a product where a component has been fully integrated into the whole — did not apply to the synthetic stucco and home. Nevertheless, the Court held that the economic loss rule limited plaintiff’s claim to damages caused to elements of the home outside of the synthetic stucco system itself.

Justice Roberto Rivera-Soto filed a spirited dissent. Quoting from a lengthy explanation of how a synthetic stucco system is installed on a house, Rivera-Soto concluded that the product "can only be removed by extensive demolition work." He labeled the majority’s refusal to apply the integrated product rule as:

. . . so fanciful, so nonsensical, that it beggars the imagination. It is a conclusion that can germinate only in the minds of lawyers and can find root only in the rarified environment of this Court’s decisions; it cannot, however, long survive in the atmosphere of the real world.

California Supreme Court Upholds an Expanded Application of Private Attorney General Fees

By on Posted in California

Code of Civil Procedure § 1021.5 allows for the recovery of attorney fees from the opposition under certain circumstances when a successful litigant acts as a private attorney general.  While it was well established that a financial interest in the matter can disqualify a party from an award under § 1021.5, it was disputed as to whether a non-financial interest could also disqualify a successful litigant from such a recovery.  In Conservatorship of Roy Whitley, the Supreme Court unanimously resolved this dispute by holding that “a litigant‘s personal nonpecuniary motives may not be used to disqualify that litigant from obtaining fees” under § 1021.5. In Whitley, the interest of the successful litigant was the appropriate care for her disabled brother, but she had no pecuniary interest as the case involved injunctive relief and the mandatory procedures for transferring a disabled person. It was not disputed that an important public right was at issue. The Supreme Court held that the application of § 1021.5 was conditioned on the “financial burden of private enforcement,” i.e., the existing financial incentives and burdens, and not on any nonpecuniary interest in the outcome.

To the extent they disagree with this conclusion, the Court disapproved of Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961, Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors (2000) 79 Cal.App.4th 505, Hammond v. Agran (2002) 99 Cal.App.4th 115, and Punsly v. Ho (2003) 105 Cal.App.4th 102. For more details about Whitley, see the Attorney Related update page.
 

Florida Appellate Court Reaffirms Prohibition of “Mary Carter” Agreements

By on Posted in Florida

Conditional settlement agreements between a plaintiff and a codefendant are nothing new.  But when such an agreement is premised on the notion that the “settling” codefendant will continue to defend itself at trial, diminishing its own liability proportionately by increasing the liability of the other codefendants, it is against public policy.

The term “Mary Carter agreement” originated in the case Booth v. Mary Carter Paint Co. and evolved through its progeny.  It is essentially a contract by which one codefendant secretly agrees with the plaintiff that, if the defendant will proceed to defend itself in court, its own maximum liability will be diminished proportionately by increasing the liability  of the other codefendants.

Secrecy is the essence of such an agreement, because the court or jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the nonsigning defendants.  By painting a gruesome testimonial picture of the other defendants’ misconduct or, in some cases, by admissions against himself and the other codefendants, he could diminish or eliminate his own liability by use of the secret “Mary Carter Agreement.”

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The Use of Principles of Aggregate Litigation by Courts: The Early Returns

By on Posted in Civil and Appellate Procedure

The American Law Institute gave final approval to the Principles of Aggregate Litigation in May, 2009. Drafts of the Principles had been published for several years before final approval, and some courts have been aware of the substance of the ALI’s views for some time. We have searched available opinions to determine the influence, if any, that the Principles have exerted on the law to this point.

Almost all citations to the Principles have been in federal court, predominantly in the First and Second Circuits. By far the most common subject for which the Principles have been cited is cy pres settlements. Some courts have approved settlements where the primary beneficiaries are not class members but third parties, such as charities. The rationale for such settlements is that they provide some punishment to the defendant (or disgorgement of ill-gotten gains) while avoiding difficult problems in identifying and compensating specific class members. The Principles of Aggregate Litigation is generally unenthusiastic about cy pres settlements and expresses a preference for distribution of settlement proceeds to class members as opposed to third parties, such as charities, unless such a distribution is not economically feasible. The Second Circuit relied upon a draft of the Principles in a leading case (see Masters v. Wilhelmina Model Agency, Inc. .pdf) and the Principles’ position on this subject seems to have real traction in the federal courts.

The courts have not widely cited the Principles of Aggregate Litigation for other issues, although the Third Circuit has referred to factors listed in the Principles for determining when a single-issue class is appropriate (see Hohider v. United Parcel Service, Inc. .pdf).

Other issues for which the Principles have been cited include the varieties of aggregate litigation, the presumption against certification when a prior court has rejected certification, and the use of lodestar factors to cross-check attorneys’ fees derived by the percentage method.

The most significant use of the Principles in state courts has been a decision by the Kansas Supreme Court adopting the definition of “aggregate settlement” found in the Principles and applying it to that state’s disciplinary rules (see Tilzer v. Davis, Bethune & Jones, L.L.C. .pdf).

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