In my previous “career” as a justice on the California Court of Appeal, Fifth Appellate District, where I served for 21 years, I found there were times in deciding cases that the temptation arose to dispose of matters based on my instincts of the merits of a case rather than the standard of appellate review for the particular proceeding or the case as briefed by the parties. For example, on review of dismissal of a case that was based upon the trial court granting a motion for summary judgment, one might look at the weak prospect of success by the appellant, should the judgment be reversed and sent back to the trial court, and be tempted to simply affirm instead. However, if there existed a triable issue as to a material fact, even if the appellant’s case on the facts appeared weak, one is compelled under California Code of Civil Procedure section 437c to reverse and let the chips fall where they may. A review of some recent cases suggests that some appellate panels are yielding to the temptation under similar circumstances to what I have described. My last blog gives the example of the recent Tamkin case.
About two weeks ago I came across an unpublished case where the trial court had invalidated purported amendments by a decedent to her trust on the sole basis that her initials on the pages of amendment did not constitute a valid signature. The appellate court found this reasoning erroneous, that decedent’s use of her initials as her signature did not invalidate the purported amendments. However, the court proceeded to analyze factual disputes undetermined by the trial court, without citing authority for this analysis, to decide that factually the trust was otherwise not effectively amended; because the result was correct in the court’s view, it affirmed rather than remand the matter for the trial court to resolve the issues.
Then there are those cases that are taken out of the hands of the trier of fact, after it (in this case, a jury), had decided the matter. In Huitt v. Southern California Gas Company (2010) 188 Cal.App.4th 1586, plaintiff plumbers suffered serious burn injuries as a result of a natural gas explosion from a water heater closet at the newly piped school facility where they were working. The jury found the defendant gas company strictly liable, that it had a duty to warn that new gas steel pipes adsorbed the odorant in natural gas and, had the plaintiffs know that in the absence of the odor, they would not have bled the gas pipe into the confined closet; except that plaintiff Huitt was responsible for 12 % comparative responsibility for his negligence. The jury awarded compensatory damages, as well as punitive damages upon finding malice. On appeal, the appellate court identified the defendants contentions as, “it did not owe a duty to plaintiffs and, even if it did, plaintiffs failed to establish a causal connection between the failure to warn and plaintiff’s injuries;” additional contentions identified were lack of jurisdiction due to PUC preemption and failure of evidence on the issue of malice. But the court found it “unnecessary to address each of these arguments” and instead found the judgment must be reversed with judgment entered in defendant’s favor because there was no evidence that had the Gas Company issued warning either plaintiff would have been aware of it. The court’s reasoning included that it could not rely upon the jury using common sense on this point; for example, although the defendant could have warned building inspectors, “there was no guarantee that a plumber” would get this information.” (Emphasis added.)
A disclaimer regarding my views expressed in this blog: Dowling Aaron Incorporated was appellate counsel in the Huitt case, so this post may sound like “sour grapes.” But the trend of the appellate court becoming a trier of fact in taking matters into its own hands can be found in many other cases Dowling Aaron Incorporated is not connected with, including the Tamkin case. So I do think this is a very real concern of which appellate practitioners should be aware.