Blauser v. Diubin: Whether order is signed or unsigned, appeal must be from final judgment and not "minute order" granting nonsuit

 

Appellate court explains the crucial difference between a minute order and a judgment 

The old maxim holds true:  appealability is jurisdictional, meaning that an appellate court lacks jurisdiction to consider an appeal from a non-appealable order.  In California and most other jurisdictions, an appeal must be taken from a final judgment or an order made appealable by statute.  This is illustrated by the opinion of the Fourth District, Division Three, in Blauser v. Dubin (November 19, 2024) G063715 (https://law.justia.com/cases/california/court-of-appeal/2024/g063715.html).

In one of the typically concise and well-written opinions from the Fourth District, Division Three, the court explained the appellant's opening brief referenced a "judgment of dismissal" despite the fact the trial court adopted the increasingly common practice of not issuing any sort of final judgment.  Rather, the court granted a motion for nonsuit, a motion arguing the claim of one party against another cannot go forward, by way of an unsigned "minute order."   Such are prepared by the Clerk and entered in the record, often without the Judge's signature.

This caught the appellate court's attention, which asked the parties to brief the issue of whether the appeal was proper.  The appellant then obtained a signed copy of the minute order, filing a "notice of entry of judgment" attaching the signed order, and then filing the notice of entry of judgment in the trial and appellate courts.

The appellate court explained this signed minute order did not constitute a final judgment or order appealable by statute:

Though now signed, the minute order is (still) not labeled as a

“judgment” and it (still) does not purport to enter “judgment.” (§ 577.) Nor does it order the “dismissal” of appellant’s first amended complaint (though the cross-complaint was dismissed at the request of respondent). (§ 581d [a written, signed dismissal order “shall constitute” a judgment].)

Orders granting nonsuit motions are not among the appealable orders listed in section 904.1. “Although an order granting a nonsuit is nonappealable, an appeal can be taken from the subsequent judgment of nonsuit.” (4 Cal.Jur.3d (2024) Appellate Review, § 58; see Smith v. Roach (1975) 53 Cal.App.3d 893, 895, fn. 1.) “[I]nsofar as the appeal purports to be from the minute order granting the motion for nonsuit, it is premature and must be dismissed.” (Bauer v. Jackson (1971) 15 Cal.App.3d 358, 363, fn. 1.) (Id., p. 3.)

The Fourth District rejected the argument the a minute order and judgment are "functionally equivalent," noting such an approach would lead to confusion as to what is and is not appealable.  Moreover, the court noted California's Code of Civil Procedure section 581c(c) regarding dismissals contemplates a motion for nonsuit shall be followed by an actual signed judgment. 

The appeal was therefore dismissed without prejudice to be refiled once a final judgment or appealable order had been obtained.

Lessons for practitioners

Even though section 581c(c) provides a motion for nonsuit shall be an "adjudication on the merits," unless there is a judgment as a to particular party, that party may not appeal the granting of the nonsuit.  Alternatively, a signed "order of dismissal" is equivalent to a judgment per Code of Civil Procedure section 581d.  However, an order of dismissal must actually state a party is dismissed and should be entitled an "Order of Dismissal of [name of party]" and make specific reference to section 581d in order to make this crystal clear.

More broadly, for the sake of clarity any "minute order" or other order of the court that a party wishes to appeal should be reduced to a judgment.  Further, this judgment should be signed by the Court and attached to a "notice of entry of judgment" filed with the trial court and served upon all parties, this being crucial because doing so starts the 60-day period in which an opposing party may appeal.  If this notice is not given the other party may have up to 180 days to appeal resulting in a surprise "notice of appeal" once the case has been long-closed.  Of course, in any timely appeal, this "notice of entry of judgment" should be made part of the appellate record.

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President Biden, Pardons, and the Limits of Appellate Review

 

 

The power of a President to pardon anyone for a Federal Crime is limited only by the provision of U.S. Const. Art. II, section II that prevents pardons for verdicts of “impeachment:”

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Therefore, it is almost impossible to seek meaningful appellate review of a Presidential pardon.  This appears to be intentional, as the Federal Judiciary operates with little oversight from the Legislative or the Executive Branches, other than, of course, the fact the House of Representatives controls the purse and the Senate must approve the President’s Judicial nominees — as well as the oft-forgotten power of Congress to set the jurisdiction and scope of Federal Courts by virtue of Article III, Section II:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. (Emphasis added.)

Given this broad power, I was neither shocked nor offended by President Biden's broad pardon of his neer-do-well son Hunter, so broad as to include any claims his son was guilty of influence-peddling with the consent of his father by, for example, serving on the Board of Directors of Ukrainian oil company Burisma despite his lack fo involvement in either Ukraine or the energy industry. (See, e.g., https://www.pbs.org/newshour/politics/report-hunter-biden-sought-u-s-government-help-for-gas-company-burisma.)  The power conferred is not only broad but is personal to the President rather than being conferred on any other portion of the government.

This is separate, of course, from criticism of any of the lies or prevarications from the President and/or his White House minions.  Indeed, The New York Times has reported that the pardon has been in the works for months, during which time it was said by the President and his Press Secretary — over and over again —  that no pardon or clemency would be forthcoming. (See https://www.nytimes.com/2024/12/01/us/politics/biden-pardon-son-hunter.html.)

It has often been said that a grand jury can indict a ham sandwich.  To the extent this is true, the President could later pardon the sandwich, the son of the sandwich, or the wife or husband of the sandwich. 

 

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"Martha" on Netfilx: Revisiting Martha Stewart, the FBI, and James Comey's "Trophy"

 

This weekend I watched the Netflix documentary Martha. As an appellate lawyer and a civil libertarian it brought two crucial points to mind, the first being Martha Stewart's decision to end the appeal of her criminal conviction.  

Recall that after being wrongfully, in my humble opinion, convicted of “lying” to the FBI about her supposed insider trading, Ms Stewart initially filed an appeal.  This is hardly surprising given the fact that she was not convicted or even charged with insider trading.  In fact, she could not be charged because the evidence did not show that she traded on "insider" information.  Rather, Stewart was convicted of lying to the FBI when she truthfully said she had not engaged in insider trading.  If this seems nonsensical, remember that President Donald Trump was convicted of fraudulently failing to disclose payments to a mistress as a campaign contribution even though such payments do not fit the definition of a campaign contribution or expenditure, this last point illustrated by the failure of the Department of Justice to prosecute Mr. Trump on any campaign finance charges.

Though this appeal might have set useful precedent, Stewart courageously withdrew her appeal in order to put this incident behind her.  The FBI, of course, is not required by any law to tell the truth when it interviews someone, but is still very fond of claiming it has been "lied to" when it cannot bring any other charges.  Though Ms. Stewart's appeal did not proceed, this area is ripe for appellate review given the prosecutorial abuses of the Department of Justice and their cohorts at the FBI.

Which brings us to the second point, to wit, the role of our good friend James Comey in all this.  Ms. Stewart does not mince words when she notes how the sanctimonious Comey, then a Federal Prosecutor, decided to take down the first self-made female billionaire as what Stewart calls his "trophy."

This, of course, is the same James Comey who signed, under penalty of perjury, a FISA warrant application central to the entire Russia Hoax, a hoax which wasted millions and millions of dollars and countless hours in a vain attempt to prove a claim for which there was no evidence:  that Trump was a Russian Asset.  Indeed, following the report of Inspector General noting the errors and mischaracterizations in the FISA warrant application, Comey continued to defend his use of the "pee dossier" from Michael Steele as the basis for the FISA warrant application.

And so it is ironic that before James Comey did this to Donald Trump, he did it to Martha Stewart.  Comey was nonetheless later permitted to be named Director of our nation’s top Law enforcement agency, FBI, the era where the FBI was let by Comey seguing into the current era of political “lawfare" we have just lived through.

Martha, then, is a must-see because it shows us how Comey took down his first "trophy" before he later went after Trump. 

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New Case Law - 1) Probate Order Not Appealable and 2) Attorney Almost Sanctioned for Calling Opposing Counsel "The Civility Police" (Young v. Hartford)

 

Appealablility of probate order

The chief issue in Young v. Hartford (G064034, November 12, 2024) was the viability of the appeal itself.  The respondent made a motion to dismiss the appeal, arguing that the appeal was not from a final judgment but from an "interlocutory order," i.e., an order which is not deemed directly "appealable."  Most orders, of course, may not be appealed directly but are reviewed by the appellate court upon review of the final judgment. In the context of a Probate Court proceeding, there is no final judgment per se but statutes provide that certain orders have sufficient "finality" to be appealable.

Writing for the Fourth District, Division Three, Justice Delaney explained the subject orders were, in fact, not appealable, as they involved "suspension" rather than "removal" of a probate trustee.  Specifically, Probate Code section section 15642 did not make such an order of "suspension" directly appealable:

This case presents a novel or nearly novel recurring question of appealability: Are orders suspending trustees and appointing interim trustees in probate court directly appealable? We publish this opinion to provide a clear answer: they are not. (Id., p. 2.)

The trial court therefore granted the motion to dismiss the entire appeal.

Request for sanctions for filing a frivolous appeal

Along with this motion, respondent also filed a motion for sanctions, arguing the appeal itself was "frivolous."  While the appellate court did not find the appeal itself frivolous, given the novelty of the legal issue, in reviewing the record teh court found letters from counsel for appellant to be troubling:

However, we are troubled by the tenor of defendants’ attorney’s correspondence with plaintiff’s attorney, which plaintiff has provided in connection with her motion for sanctions. The third of the four letters is particularly problematic. Defendants’ counsel Michael Leight wrote, “I am not sure why you think you are the civility police, but I want you to stop wasting my time complaining that I have hurt your feelings. [¶] If you would like ‘to go on record,’ you should ‘go on record’ some place else because I am not interested in your opinions about whether I am respectful or disrespectful. [¶] I will communicate with you in exactly the manner that I believe is appropriate, whether the communication is in a courtroom or otherwise.” Plaintiff’s filing does not give us the full context of these comments, but we struggle to conceive of a possible justification for them. (Id., p. 12.)

The appellate court noted that attorneys are required to be "civil" at all times and this language hardly personified such.  The Fourth District nonetheless denied the request for sanctions but noted this denial was made "this time," a clear warning against future incivility:

Defendants’ counsel’s letter appears to reflect a disturbing lack of interest in these principles, particularly in his belittling comments about the “civility police” and “hurt . . . feelings.” In combination with the two cases discussed above, it paints an unfortunate picture of defendants’ counsel’s approach to the practice of law, and transformed what otherwise would have been a straightforward denial of a sanctions motion, fit only for a footnote, into a close call consuming pages of this opinion. In other words, this letter served only to imperil counsel’s interests and those of his clients, rather than advancing them. This time, we decline to impose sanctions. (Id., p. 14; emphasis added.)

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"Gaslighting" - A Post-Election Update About PBS' Claimed "Four Point Lead" for Harris

The Media's Emperors Have No Clothes

In prior articles, we discussed "gaslighting" in the litigation context. However, given what occurred on Tuesday night, further discussion is warranted.

As an appellate lawyer, I know that one’s own credibility is of utmost importance.  During oral argument, a Justice may ask a question that relates to the record upon appeal, and either exaggerating or selectively quoting from the record can forever harm one's credibility before that court.  This not only undermines the lawyer but, more importantly, the client's case.

So it is worthwhile to point out some of the "gaslighting" occurring during this election cycle, and the loss of credibility that should result.  Gaslighting is defined as not just a false statement but one designed to mislead, and, in particular, to have the listener doubt a conclusion formed by their own common sense and experience.

First, note the supposed "four-point lead" for Vice-President Harris trumpeted by tax-payer-funded PBS.  This was so although perhaps the best pollsters of all, TippInsights.com, showed no such clear lead for Harris:

https://www.pbs.org/newshour/politics/harris-has-4-point-lead-over-trump-in-final-pbs-news-npr-marist-election-poll

Another popular "gaslighting" trope involved Trump’s incredibly popular Madison Square Garden rally, namely that criticism of the rally caused a political shift toward Vice-President Harris.  Here Fortune was among the guilty parties:

https://fortune.com/2024/11/02/election-odds-donald-trump-lead-kamala-harris-madison-square-garden-rally-electoral-votes/

A sillytrope not exactly borne out by the actual votes in the election, of course.

Add to this MSNBC's incredible claim that President Trump declared victory "before" he actually had won; this gaslighting was not doubt due to the fact that traditional media was holding out hope Harris was going to come from behind, no matter the mathematics:

https://www.msnbc.com/opinion/msnbc-opinion/trump-declare-victory-early-harris-election-2024-rcna178400

Of course, the election had already been called by Fox News -- but had not yet been called by Comcast’s Trump-hating NBC.

Most humorous of all was Oprah Winfrey's claim that if Donald Trump won there would be "no more elections."  Was she lying to us or to herself or both?  Decide for yourself:

https://www.msn.com/en-us/news/politics/oprah-winfraey-issues-ominous-warning-about-a-second-trump-presidency-at-harris-s-final-rally/ar-AA1tx4zH 

The silliness of this prediction is borne out by the fact that there are reports the Democrat Party's National Committee is already talking about tweaking its strategy in subsequent elections.  Which would be a waste of time if there were indeed no further elections.

A final example of "gaslighting" is the faux media outrage, designed to stoke even more outrage among Puerto Rican voters, over a tacky joke made at the Madison Square Garden rally.  But what really happened? President Trump won handily and the Republican Party flipped the Governor’s Office in Puerto Rico.

  
In other words, Puerto Rico elected a Republican Governor.  So the attempt at gaslighting by way of calling a comedian's “joke” a campaign “statement” — and thus trying to equate a comedian’s joke with a candidate’s views — didn't work nationally or even in Puerto Rico itself.

Which gives us some hope.

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New case law - Because cannabis is illegal under Federal law, County had no right to give Conditional Use Permit to grower (Crandall v. Santa Barbara)

In JCC Crandall LLC v. County of Santa Barbara (October 29, 2024) B333201, the Second District, Division Six, has declared that no matter what one may think, possession of cannabis remains illegal under Federal law and therefore cannot be "legal" under the laws of California or any other state:

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. (Id., p. 1.)

The specific context in which this statement was made involved a dispute over an existing half-mile-long easement previously used to transport legal agricultural products; however, the easement was now to be used by a cannabis grower, a different use of the easement to which the servient landowner objected.  Santa Barbara County nonetheless granted a CUP, or 

Conditional Use Permit, to the cannabis facility, even though this CUP required use of the disputed easement:

The county grants a conditional use permit (CUP) for the cultivation of cannabis. To issue a CUP, the county’s land use code requires a finding that the streets and highways are adequate for the proposed use. A private easement over a neighbor’s land is the only access to the land subject to the CUP. The owner of the servient tenement objects to the use of his land to transport cannabis. The servient owner petitions for a writ of administrative mandate challenging the county’s grant of the CUP. The trial court denies the petition. We reverse because under federal law cannabis is illegal in California and everywhere else in the United States. The servient tenant’s objection on this ground is sufficient to defeat the CUP. That the possession and cultivation of cannabis has the imprimatur of legality in California is beside the point. (Id., pp. 2-3; emphasis added but footnote omitted)

Crandall first discussed the objection by the landowner and its claim it must consent to the use of the easement for cannabis transport.  The Second District found that Business & Professions Code section 26051.5(a)(2), providing that a cannabis owner must show "consent" to use the property where the growing will take place, required such consent from the "landowner" of the easement used to transportation.  This section therefore was not limited to situations where the "landowner," the word used in the statute, is a landlord whose tenant is using the property for cannabis, the restrictive reading urged by the County.

The Second District also found that even if section 26051 did not require the "landowner" to give consent, the transportation of cannabis exceeded the scope of the easementm, granted for agricultural purposes, because it involved the transportation of an "illegal" substance.

Specifically, under the Supremacy Clause of the United States Constitution, Federal law makes cannabis illegal in every state.  Therefore, in perhaps the most important portion of the opinion, the court explained there was no doubt the "product" to be transported via the easement was illegal:

It is often said that cannabis is legal in California. The statement is not true. Under federal law cannabis is illegal in every state and territory of the United States. (See Controlled Substances Act, 21 U.S.C. § 801 et seq.; 21 U.S.C. § 812 (c)(10); City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 377.) Article VI, Paragraph 2 of the United States Constitution, known as the Supremacy Clause, provides in part, “The Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (Id., p. 5.)

Noting there is a difference between permission to transport a legal and  an illegal product, the appellate court stated the easement did not contemplate the transport of the product of illegal cannabis growing.  Consequently, it was a "taking" of the petitioner's land to require that it involuntarily provide an easement:

The scope of the easement does not include the illegal transport of cannabis. Civil Code section 1550.5, subdivision (b) cannot expand the scope of the easement to allow such use. A statute that authorizes the permanent physical invasion of the land of another is void as violating the Takings Clause of the Fifth Amendment to the United States Constitution. (Loretto v. Teleprompter Manhattan Catv Corp. (1982) 458 U.S. 419, 426) (Id., p. 7.)

The judgment of the Hon. Jed Beebe, Judge Presiding, finding the CUP and the easement required to issue the CUP was properly granted, was therefore reversed.

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