Author: Lewis

At Lewis & Llewellyn, we routinely handle matters at both the trial court and appellate level.  As any litigator should know, whether or not an order is appealable, and the timing of the notice of appeal, can present some complex issues.

Last month, California’s Fifth District Court of Appeal issued an opinion holding that a “judgment” filed by a trial court was not, in fact, final and therefore was not appealable.  The lesson for lawyers – don’t file a notice of appeal until all the issues in your case have been decided, even if all that remains to be determined is the amount of punitive damages.

In Baker v. Castaldi, 235 Cal. App. 4th 218 (2015), plaintiff sued defendants for allegedly stealing his antiques.  Baker sought compensatory and punitive damages.  Phase one of the trial addressed liability and compensatory damages, as well as whether Baker was entitled to punitive damages.  Phase two, if required, would address the calculation of those punitive damages.

At the conclusion of phase one, the court issued a document titled “judgment” awarding plaintiff $610,500 in compensatory damages plus interest and costs against the defendants.  Punitive damages, which the court found were warranted, were to be determined in phase two which the court described as a separate trial.

Several appeals of the “judgment” were filed.  The Court of Appeal for the Fifth Appellate District, however, ruled that this “judgment” was neither final nor appealable.

The Court held, “[a] judgment is final where no issue is left for future consideration except the fact of compliance or noncompliance with the order.”  In this instance, the trial court issued a judgment regarding compensatory damages and liability, but still specified that the amount of punitive damages to be awarded would be decided in a subsequent proceeding.  Therefore, the Court of Appeal reasoned, “the ‘judgment’ did leave open an issue for future consideration: The amount of punitive damages.”

The lesson for litigants is clear.  A party cannot avoid a decision on damages by immediately appealing a ruling on liability.  As the Court of Appeal made clear, the amount of damages is “essential to a final determination of the rights of the parties.”  Therefore, the appeal will have to wait.

Many attorneys assume that using a peremptory challenge means they are entitled to reject a potential juror without stating a reason.  One prosecutor found out the hard way that this is not entirely true, particularly when faced with a Batson/Wheeler motion.

In People v. Cisneros, 2015 WL 521878 (Cal. App. 2d. Dist. Feb. 9, 2015), a recent opinion published by the Court of Appeal, a man was accused and convicted of making criminal threats against his girlfriend.  He appealed, alleging that the prosecutor had discriminiated against men in exercising peremptory challenges during jury selection.  The Court of Appeal agreed.

The Court of Appeal found that the prosecutor – who had used seven of her nine peremptory challenges to strike men from the prospective jury – had failed to provide an adequate, gender-neutral reason for exercising two of the challenges after opposing counsel raised Batson/Wheeler motions.  For the two challenges found to be improper, the prosecutor asserted, when asked by the trial court, that she believed the next jurors in line were each a “better fit.”

As the Court of Appeal held, “whenever counsel exercises a peremptory challenge, it necessarily means that he or she prefers the next prospective juror to the one being challenged (whether the individual qualities of the next person are known or unknown).  It is, in effect, no reason at all.  Thus, simply reciting this truism while striking a prospective juror who is member of a protected class is not an adequate nondiscriminatory justification for the excusal, particularly when, as here, in each instance to reach the preferred next prospective juror the prosecutor elected to strike a prospective male juror rather than one of the many prospective female jurors then seated in the jury box.”

However, as the Court of Appeal noted, the “bar [is] not high” – the prosecutor’s explanation for striking another juror for being “kind of rough around the edges” and another for being “overly-analytical” survived Batson/Wheeler motions.  Therefore, every lawyer should have a valid reason in mind when exercising a peremptory challenge, as long as that reason isn’t the next juror would be a “better fit.”

At Lewis & Llewellyn, we represent some of the world’s leading companies in responding to third party subpoenas, in both state and federal courts across the country.  Practitioners should take note that the Ninth Circuit Court of Appeals recently created some potentially helpful law regarding cost shifting for federal third party subpoenas.  Under Federal Rule of Civil Procedure 45(d)(2)(B)(ii), a court order commanding production in response to a subpoena “must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.”  Though this language was added when the Rule was amended in 1991, it had not been interpreted by the Ninth Circuit until the recent decision in Legal Voice v. Stormans Inc., 738 F.3d 1178 (9th Cir. 2013).

In Legal Voice, Stormans, Inc. sued Washington State, seeking to enjoin enforcement of rules requiring pharmacies to maintain and dispense certain drugs.  Stormans subpoenaed the Northwest Women’s Law Center (“Law Center”), which had played an important role in the law’s enactment, but was a not a party to the underlying action.  The Law Center objected to the subpoena, and Stormans moved to compel.  The District Court granted the motion to compel as to six of the fourteen requests in the subpoena, but refused to grant the Law Center’s request under Rule 45(d)(2)(B)(ii) for Stormans to pay its cost of compliance.  On appeal, the Ninth Circuit overturned the District Court’s ruling, holding that “Rule 45(d)(2)(B)(ii) requires the district court to shift a non-party’s costs of compliance with a subpoena if those costs are significant.”  Id. at 1184.

Importantly, the court found that the rule “provides no exceptions,” “is mandatory,” and that “when discovery is ordered against a non-party, the only question before the court in considering whether to shift the costs is whether the subpoena imposes significant expense on the non-party.  If so, the district court must order the party seeking discovery to bear at least enough of the cost of compliance to render the remainder ‘non-significant.’”  Id. (citing references omitted).  The court subsequently found that the $20,000 the Law Center had incurred complying with the subpoena was “significant.”

This case is a potentially powerful tool for battling overly burdensome or costly discovery requests served on third parties.  Attorneys on the receiving end of a subpoena, or even a motion to compel, should keep this case in mind in responding – and potentially objecting – to subpoenas here in the Ninth Circuit and elsewhere.