As an appellate practitioner, I am keenly aware that sometimes, a procedural matter can doom what would otherwise be a meritorious issue for appeal. Trial attorneys are well-advised to check and double-check procedural rules and case law governing the issues in their cases. Here’s a few recent developments to be aware of.
The record on appeal: electronic recordings now available in Santa Clara County.
It should not be news to anyone that it is the appellant’s burden to produce an adequate record for appeal. That includes not just the written submissions to the trial court, but also reporter’s transcripts of all proceedings that could have a substantive impact on your case. If you do not have a court reporter present for your hearing, you will be struck trying your best to get an agreed statement or a settled statement should the case go up on appeal. Believe me, that can be a serious challenge. Any omissions or deficiencies are going to result in presumptions made against the appellant.
It came to my attention this week that Santa Clara Superior Court has issued a General Order authorizing the use of electronic recording equipment in certain types of proceedings where a court reporter is unavailable. This is welcome news, and hopefully a harbinger of things to come in other courts as well. The General Order recognizes the lack of a sufficient number of court-employed court reporters, and the inability of indigent parties to retain and pay for their own court reporters. Because the absence of an adequate record can effectively deny these parties access to an appeal, Santa Clara now permits its judicial officers “to authorize the electronic recording… of hearings at which fundamental rights are at stake.” Electronic recordings are already permitted for misdemeanor, infraction, and limited civil cases. The General Order now permits electronic recordings in felony proceedings, family law proceedings, certain probate conservator or guardianship proceedings, and civil contempt proceedings. You can view the complete General Order and its supporting documentation here.
CCP 473(d) motions to set aside a “void” default judgment via extrinsic evidence no longer subject to two-year rule.
On November 18, the California Supreme Court issued a decision in California Capital Ins. Co. v. Hoehn (2024) 2024 Cal.LEXIS 6438* [2024 WL 4812045]. The defendant had moved under CCP 473(d) to set aside a default judgment entered against him nine years prior, based on extrinsic evidence of improper service of process. The trial court held the motion was time-barred, and the appellate court affirmed, based on a long-standing line of appellate decisions “borrowing” a two-year outer time limit for such motions from CCP 473.5, which governs motions for relief from default where service of a summons had not resulted in actual notice to the defendant. Under this line of cases, a defendant seeking to have a judgment declared void based on extrinsic evidence after two years could not seek relief via motion in the original action, but was required to bring an independent equitable action.
The judicially-imposed two-year limitation period on motions to set aside a default judgment based on extrinsic evidence is no longer. The Court in Hoehn could find no compelling reason, either in policy or principles of statutory interpretation, to impose such a limitation. Noting that the right to proper service is essential to a defendant’s due process rights, the Court held that “[p]rocedural hurdles that are unnecessary to the fair adjudication of default judgments should not stand in the way of a defendant’s due process rights.”
Waiver and judicial disqualification.
Finally, in October, the California Supreme Court decided North American Title Co. v. Superior Court (2024) 17 Cal.5th 155.
North American Title addresses the interplay between CCP 170.3(c)(1), which requires a party seeking to disqualify a judge via a verified statement of disqualification to do so “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification” and the nonwaiver provision of CCP 170.3(b)(2) which provides that “there shall be no waiver” of disqualification where a judge has determined themselves to be disqualified based on their personal bias or prejudice concerning a party. The appellate court held that CCP 170.3(b)(2) precluded a finding of waiver where a party’s efforts to disqualify a judge based on the judge’s personal bias or prejudice are untimely.
The Supreme Court reversed, holding that the timeliness requirement for disqualifications sought by a party under CCP 170.3(c)(1) applies regardless of the basis for disqualification. The non-waiver provision of CCP 170.3(b)(2) only applies to cases of judicial self-disqualification based on personal bias or prejudice, and is inapplicable where disqualification is sought by a party to the proceedings.
