An Appeal to Reason by Donna Bader

Okay, if I haven’t given you enough reasons, here are a few more why I like appeals from judgments after orders sustaining demurrers without leave to amend:

1. On review, the appellate court liberally construes the pleading in a reasonable manner. The appellate court is trying to determine if you can state a cause of action.  It will liberally construe the pleading so as to achieve substantial justice, not to summarily dispose of a defective pleading that can be salvaged.  Thus, the court will read the complaint in a reasonable manner, putting the allegations in context, and consider judicially noticed matter.  (Leonte v. ACS State and Local Solutions, Inc. (2004) 123 Cal.App.4th 521, 525; Page v. Los Angeles County Probation Dept. (2004) 123 Cal.App.4th 1135, 1141.)

2. For purposes of appeal, the appellate court assumes the truth of your allegations. If you allege facts in your pleading, and they are not contradicted by your exhibits and judicially noticed documents, then the court will assume the truth of your allegations.  (California Public Employees’ Retirement System v. Superior Court (2008) 160 Cal.App. 4th 174, 178, disapproved on other grounds in State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963; Leonte v. ACS State and Local Solutions, Inc. (2004) 123 Cal.App.4th 521, 525.)  That assumption goes beyond the specific allegations, the appellate court will also assume the truth of facts that may be implied or reasonably inferred from the express allegations.  (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 985-986.)  However, if the allegations are contrary to law, the exhibits, or judicially noticed documents, they will be ignored.  (Consumer Cause, Inc. v. Weider Nutrition Internat., Inc. (2001) 92 Cal.App.4th 363, 367.)  And finally, if you have facts but forget to put them into the complaint, they are not presumed to exist.  (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 579.)

3. The appellate court will not assume the truth of contentions, deductions, or conclusions of law or fact. The appellate court will not assume the truth of contentions, deductions, or conclusions of law or fact.  (Levi v. O’Connell (2006) 144 Cal.App.4th 700, 705.)  Of course, that could prove to be a benefit to you or an obstacle.  If you have included contentions and deductions in your pleading, then the court will ignore them, but if the defendant, in preparing the demurrer, is depending on contentions or deductions, then they will also be ignored.

Had enough of demurrers?  Next week I am going to start a discussion of common problems with motions for summary judgment.

A hearing on a demurrer is not an evidentiary hearing or mini-trial. A demurrer lies from defects on the face of the pleading or from facts that the court may judicially notice. (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) A demurrer is not the place to challenge disputed facts. “[A] hearing on a demurrer cannot be turned into a contested evidentiary hearing.” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 365.) You know that the defendant is attempting to do this when he or she explains your allegations or rebuts them with “facts” that they would present at trial. Another indication that defendant is resorting to extrinsic facts is when the demurrer is supported by a declaration. If the demurrer is truly testing the pleading or judicially noticed facts, then the filing of a declaration is unnecessary unless it is required to explain the request for judicial notice.

Nor is should the trial court (and by extension, the appellate court) be  concerned with your ability to prove those facts at trial. In reviewing your complaint, the appellate court is not concerned with how or even if you can prove your allegations at trial. (Canton Poultry & Deli, Inc. v. Stockwell, Harris, Widom & Woolverton (2003) 109 Cal.App.4th 1219, 1226; N.V. Heathorn, Inc. v County of San Mateo (2005) 126 Cal.App.4th 1526, 1531.) The appellate court will also ignore erroneous or confusing labels or captions by the pleader; it is focusing on the facts alleged. (Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 218-219; Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4th 1273, 1281.) Thus, the defendant cannot set forth allegations in their demurrer that, if proven true, would defeat plaintiff’s complaint. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144.) The court will presume that you can prove the facts you have alleged. (Hill v. City of Santa Barbara (1961) 196 Cal.App.2d 580, 585.)

Having discussed this topic, and understanding that the focus of this blog is to inform trial lawyers on how they can avoid mistakes that jeopardize an appeal, I do feel the need to say something on the BP disaster in the Gulf.  This event, at least for me, produces a sense of despair that I had not experienced since 9/11.  I wonder if our nation isn’t experiencing a national depression related to this tragedy.   I may even be reporting on this more in the months to come because BP has started a new era of torts and the litigation that will follow from this one event will provide plenty of attorneys with full-time work just to investigate applicable law and theories, and to sign up the multitude of plaintiffs who have been harmed by this oil spill.  But for now, the pictures of the devastation are beginning and my heart sinks with every picture of an animal encased in oil.  It is simply heart-breaking for me, so much so that I find that I have to limit my news coverage.  Perhaps this is the wake-up call we need.  We cannot continue to abuse our planet without consequence.  Too bad that animals and the environment have to share in those consequences.  It makes it very hard to go about business as usual while the world is being destroyed.

If no notice of entry of judgment is given, then the appellant has 180 days after entry of judgment within which to file a notice of appeal pursuant to California Rules of Court, rule 8.104(a).  That’s right, the time period is 120 days longer than the two other options given in that rule.  For example, if the superior court clerk mails a copy of a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, which shows the date of mailing, then the time period is cut down to 60 days.  The same 60-day period applies when a party serves a “Notice of Entry” of judgment or a file-stamped copy of the judgment along with proof of service.

This can be a tricky calculation because there is no printed or form “Notice of Entry,” so attorneys may be looking for something that will never be served.  Sending a conformed, filed-stamped judgment is the same thing as typing up a notice and attaching the judgment.  Again, the omission of any notice can be a trap for the unwary attorney, who is sitting around waiting for a formal looking “Notice of Entry.”

Sending out notice of entry of judgment is such a common practice that I can’t remember the last time that I had 180 days to wait before filing a notice of appeal.  And even when someone hands me a file and there is no notice of entry, I still can’t believe my eyes and operate under a 60-day deadline.  That way, if I am wrong and I really had 180 days, so what?  Why not  get the appeal on the road?  And if for some reason the “Notice of Entry” was served, then I have avoided a nice malpractice lawsuit.  If you take the earliest date as the deadline, you can’t be late.

A different sort of problem arose in Thiara v. Pacific Coast Khalsa Diwan Society (2010) 182 Cal.App.4th 31.  In that case, the clerk did not mail a notice of entry of judgment.  Respondent’s attorney mailed a copy of the judgment to appellants’ counsel, along with a cover letter advising it had been signed by the court.  No proof of service was included in the mailing.  Apparently, the judgment was not conformed to reflect the filing stamp.  The court’s file contained a proof of service that was filed several months after the service.

The appellants argued the mailing did not satisfy rule 8.104(a)(2) because it was not “accompanied by proof of service.”  As such, the appellants would have had 180 days within which to file their notice of appeal.  In an attempt to support their argument that the notice of appeal was untimely, respondents argued the cover letter accomplished the same purpose and they substantially complied by later filing a proof of service.  If the respondents were correct, the appeal would be untimely and subject to dismissal.

Filing a notice of appeal is jurisdictional and the right to relief is so narrow and extreme, you might as well forget it.  Because the consequences of failing to file a timely appeal are so extreme, the courts will strictly construe the statutory filing requirements.  The court in Thiara held that a notice of entry or file-stamped copy of a judgment will not trigger the 60-day period unless it strictly complies with the provisions of rule 8.104(a)(2), which require that these documents be accompanied by a proof of service.  It stated, “We cannot interpret the rule as permitting the 60-day time period to commence upon service of a notice of entry or the file-stamped copy of the judgment unaccompanied by a proof of service without rendering the words requiring a proof of service surplusage, a result to be avoided.  The requirement of a proof of service was added to the rule for a specific purpose.”  (Id. at p. 57.)

The appellants were free to proceed with their appeal, which resulted in a reversal of the judgment.  The respondents can only wonder what would have happened if they had included a proof of service with the notice and judgment.  Would the appellants have filed their notice of appeal within that 60-day period?

I don’t mean to offend anyone, particularly any of my colleagues, but appellate attorneys are not known to be a gregarious group of lawyers.  We take delight in odd things, such as when the Supreme Court overrules a key case relied upon by our opposition, that same court grants review of one of our cases, or the opinion of the court of appeal or Supreme Court in our case is published, promising us some measure of immortality.  When a client calls about an appeal, we immediately want to know what type of action brought the case to the appellate courts.  Was it a judgment after a jury trial, a summary judgment, or a judgment of dismissal of after an order sustaining a demurrer without leave to amend?  We then want to know what standards of review apply.  Somewhere a researcher has studied the appellate process and calculated the statistics for success in different standards of review.

An appeal from a judgment of dismissal after an order sustaining a demurrer without leave to amend might bring a smile to the appellate attorney’s face.  After all, California has a policy of resolving cases on their merits, and a dismissal at the pleading stage denies the plaintiff the right to a trial before a jury or court.  This policy is an inherent part of all appeals at this stage and the appellate courts do not take this policy lightly.  For appellate attorneys, we are hoping for a chance to overcome pleading deficiencies and get the plaintiff back into court.  After the pleading challenges are dealt with, whether the plaintiff wins or loses depends on the evidence and how the trier of fact views the case.  But even though a complaint must satisfy certain requirements, it should be remembered that the complaint is not generally even seen by the jury.

From a practical standpoint, an appellate attorney takes delight in knowing that the appellate court conducts an independent or de novo review of the judgment of dismissal, including the substantive issues.  (Tracfone Wireless, Inc. v. County of Los Angeles (2008) 163 Cal.App.4th 1359, 1363.)  The court will determine if you can state facts sufficient to constitute a cause of action under any legal theory.  (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 349.)  This standard of review is one that is favored by appellate attorneys and is quite helpful to a plaintiff who might have pled a legal theory that isn’t supported by the law or facts, but later discovers a better legal theory that applies. That also means the appellate court is not that concerned with the ruling below; you can ask for review as if you never appeared before the trial court.  That doesn’t mean that the appellate court has no interest in what the trial court ruled, but its order is not binding on the appellate court and it won’t stop them from looking at it anew.  (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1421.)  The appellate court generally ignores the trial court’s reasoning, and fortunately for the appellant, it is not limited by the theories raised in the pleading.  (Community Assisting Recovery, Inc. v. Aegis Security Ins. (2001) 92 Cal.App.4th 886, 891.)

At the hearing on the demurrer, you will likely find the trial court is liberal in granting leave to amend, especially if the defects can be remedied by more comprehensive allegations.  Some judges want to avoid several rounds of pleadings and demurrers by inquiring if and how you can amend the pleadings.  Always take that opportunity to explain how the pleading can be amended.  And if the court seems indifferent to the possibility of amendment, ask for it, and if given the chance, take the lead in describing how the complaint can be amended.

If the trial court determines that no amendment will overcome the defects in your pleading, then you are going up to the appellate court.  But not so quickly.  Many attorneys make the mistake of appealing from the order sustaining the demurrer without leave to amend and then find themselves facing either a premature appeal or an appeal from a non-appealable order. 

Appeal from the judgment of dismissal, not the order sustaining the demurrer without leave to amend. If the order sustaining the demurrer without leave to amend eliminates all causes of action and disposes of the matter between the parties, then you will have to appeal to get back into court.  You must appeal from the judgment of dismissal that follows the order.  (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611; Farwell v. Sunset Mesa Property Owners Ass’n Inc. (2008) 163 Cal.App.4th 1545, 1551, fn. 1.)  If, however, the order does not dispose of all causes of action, you will have to decide whether to file a writ petition, continue to trial on the remaining causes of action, or dismiss the causes of action that remain alive.  Keep in mind that your chances with a writ petition are minimal.  “Appeal is presumed to be an adequate remedy, and writ review is rarely granted unless a significant issue of law is raised or resolution of the issue would result in a final disposition as to the petitioner.”  (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1151.)

In my upcoming posts, we’ll examine why an appeal in this situation can favor the appellant.

An appeal is generally taken from a final judgment, but that doesn’t necessarily mean the parties have had their day in court. Sometimes a case is cut short by motions that effectively terminate the case, and a judgment of dismissal is then entered after the order granting the terminating motion. These motions could be a motion to quash, demurrer, motion to strike, motion for judgment on the pleadings, a motion for summary judgment, and dismissal motions. On the plus side, the appellant enjoys the benefit of California public policy that seeks to dispose of cases on their merits. Reviewing courts tend to be more skeptical of appeals from judgments that precluded a trial.

Demurrers:

In law school, we were taught that demurrers are disfavored and you shouldn’t file one unless it is going to eliminate a cause of action or complaint.  If it doesn’t, all you are doing is educating your opponent, sometimes at a crucial phase of the proceedings, so that your opponent, now aware of the omission, can remedy the problem.  Others view a demurrer as either a “billable event” or just a battle in an ongoing war.  If you win the battle, does that necessarily mean you will at trial?  Can you feel triumphant if your demurrer is sustained, only to face a new amended (and improved) pleading?

Through the years, I have observed three different types of demurrers:

1. A demurrer that attacks pleading defects that can be remedied;
2. A demurrer that attacks pleading defects and presents a true question of law;
3. A demurrer that attacks the pleading based on a question of law that no amendment can remedy.

If you are preparing the complaint and have done your homework as to what must be alleged to constitute a cause of action, then theoretically you will never face a demurrer that attacks pleading defects.  While I don’t necessarily stick to a form book for my entire pleading, I will use it as a checklist to make sure all necessary allegations are present.

Okay, so you have your pleading and the other side files a demurrer that notes you have omitted crucial allegations.  Now the battle begins.  But if you haven’t alleged that crucial allegation, why fight it?  Use the demurrer as a learning experience, even a checklist, and just fix up your complaint.  You might just call the other side and tell them that an amended complaint will be filed, making the demurrer moot.  Or just file it before the hearing.  (That doesn’t mean allowing the court to work up the demurrer papers and then filing at the last minute.)  In my opinion, there is no good reason to fight a demurrer on procedural defects; it only costs the clients money and gives you more work to do.  Your time is better spent on amending the pleading.

If you are facing a demurrer that has both pleading defects and an appealable question of law, then I would still clean up the pleading so that it looks as great as possible.  Now you are ready to fight the real issue.  You don’t want to go to the appellate court with a sloppy pleading, even if the issue can’t be cured by amendment.

If your pleading is as good as it gets, now you are ready to fight it on the legal issue.  It could be an issue of standing to bring the action or the application of the statute of limitations, but the issue can’t be resolved at the lower trial level.  And no matter how well written your pleading is, you cannot avoid appellate review as to whether you can state a cause of action.

When you are trying to admit evidence during trial, and the other side wants to keep it out and the trial court is leaning or has ruled in favor of exclusion, then you have to respond with an offer of proof.  You need to let the trial and appellate courts know what the evidence might reveal and how important it is to your case.

The offer of proof shows what the evidence would have been, who the witness is, and to what issue it is relevant.  “Normally the exclusion of evidence will not be considered on appeal unless the substance, purpose and relevance of the excluded evidence was made known to the trial court,” unless the court has clearly stated it is excluding an entire area of evidence.  (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1142; Evidence Code § 354 [the offer of proof should include “the substance, purpose, and relevance of the excluded evidence . . .”].) “Merely setting forth the substance of facts to be proved does not constitute compliance with Evidence Code section 354, subdivision (a).”  (Semsch v. Henry Mayo Newhall Memorial Hospital (1985) 171 Cal.App.3d 162, 168 [The offer of proof should include the specific testimony to be elicited, its purpose, and the person giving the testimony.]

A judgment cannot be set aside on this ground unless “the substance, purpose and relevance of the excluded evidence were made known to the court by an offer of proof or by other means (Evid. Code, § 354, subd. (a).)”  (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1113.)  However, if an entire class of evidence has been declared inadmissible or the trial court has indicated it will not receive evidence on a particular issue, then an offer of proof is not a prerequisite to raising the question on appeal, and the offer, if made by counsel, may be “broad and general.”  (Pacific Gas & Electric Co. v. Zuckerman, supra, at p. 1142.)

You’ve made your objections but you can’t stop there.  You must also obtain a ruling on your objections from the trial court. (City of Long Beach v. Farmers & Merchants Bank of Long Beach (2000) 81 Cal.App.4th 780, 784.)  During the hearing, it’s easy to get lost in discussions with the court and opposing counsel, and quite often under these circumstances, a ruling on an objection will be forgotten.

This problem frequently arises in connection with summary judgment motions.  At the hearing on the motion, make sure the trial court rules on your objections.  If you have made numerous objections, figure out which ones are really important and secure rulings on them.  If not, your objections will be deemed waived. (Code of Civil Procedure § 437c(b)(5), (c) and (d); see also Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1540.)  The failure to object waives any argument on appeal, except in very limited circumstances, such as jurisdictional grounds or new authority (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1), unless the record shows it would have been futile to continue to object or ask for a ruling.  (City of Long Beach v. Farmers & Merchants Bank of Long Beach, supra, at p. 784.)

Be sure to follow California Rules of Court, Rules 3.1352 and 3.1354 regarding the format for written objections.  It is recommended that your objections be presented in writing and in advance of the hearing date, rather than depending on the presence of a court reporter.  See also Code of Civil Procedure §437c(b)(5), (c) and (d).  Now that the format for making objections and obtaining rulings has changed, it is easy for the trial court to make a ruling just by checking the appropriate space. (CRC rule 3.1354(c).)

The same advice applies to motions in limine and motions to strike.  Get a ruling to your objections.  If you disagree with the court’s ruling, note your objection, otherwise you may have waived any argument that the ruling was incorrect.

Quite often, trial judges complain about counsel who submit a voluminous amount of motions in limine, particularly when the goal is to exclude any unfavorable evidence and prevent the jury from weighing all of the evidence.

In Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, the court explained:

“Generally speaking, in limine motions are disfavored in cases in which they are used not to determine in advance the court’s projected ruling if presented with an evidentiary objection during trial, but instead to serve as a substitute for a dispositive statutory motion. The increasing prevalence of the practice of using in limine motions in this way produces substantial risk of reversal, particularly in situations in which the constitutional rights to jury trial and confrontation are implicated. As we stated in the recent case of Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1594, 71 Cal.Rptr.3d 361: ‘[t]he disadvantages of such shortcuts are obvious. They circumvent procedural protections provided by the statutory motions or by trial on the merits; they risk blindsiding the nonmoving party; and, in some cases, they could infringe [on] a litigant’s right to a jury trial. (Cal. Const., art. I, § 16.)’ . . . ‘The better practice in nearly every case is to afford the litigant the protections provided by trial or by the statutory processes.’”

(Id. at p. 530.) Under these circumstances, the trial court will simply defer a decision on the motion until the issue comes up during trial, at which time it can deal with the objection.

Trial judges tend to become a bit persnickety when faced with a huge pile of motions in limine, particularly if the motions are clearly boilerplate, form motions. They also see such motions as an attempt to keep out everything unfavorable to the moving party, burying the other side in paper, and creating more opportunities for “billable events.” The judge might reserve his or her ruling, believing such motions are often premature, until the opposing party attempts to introduce the evidence during trial.

Attorneys would do well to avoid trying their cases in a motion in limine, filing only those that are really critical to the case. Tailor the motion in limine to the case and avoid the boilerplate. By doing so, you will be enhancing your credibility and quite possibly, your chances of winning the motion.