Focus
SAN
FRANCISCO
DAILY
JOURNAL
•
WEDNESDAY,
APRIL
4,
2001
•
PAGE
5
The
Practitioner Appellate
Law
ua
Limited Jurisdiction Remains in Trial Court After
Filing
of
Appeal
By
James
C.
Martin
and Benjamin
G.
Shatz
C
onventional wisdom seemingly
would dictate that jurisdiction
over a case can only be
in
one
place
at
one
time. After a notice of
appeal is
filed,
the trial court ought to
lose jurisdiction over the case because
of
the
pending appeal. Presumably,
then, there should be no further
pro-
ceedings
in
the trial court during the
pendency of an appeal because of the
shift
in
focus to the higher
court
Refreshingly, conventional wisdom
works
in most situations. Perhaps not
surprisingly, however, there is a
reser-
voir of jurisdiction that remains with a
trial
court
despite a pending appeal.
Knowing what issues fall within this
retained jurisdiction can benefit both
trial and appellate lawyers.
This
schizophrenic aspect of juris-
diction was recently highlighted
in
two
cases:
Franklin
&
Franklin
v.
7-Eleven
embraced
in
the action and not affected
by
the judgment or order."
The
language
of
this
statute,
of
course,
raises
the
question:
"What
issues are embraced
in
the action
..
but
do not materially affect a judgment
or
order
on appeal?" Franklin provides
some helpful insights
on
this question.
In
Franklin,
7-Eleven
franchisee
own-
ers
brought a class action
in
Alameda
County
Superior
Court
against
7-
Eleven's franchiser, alleging breach of
their franchise agreements. During the
course
of
this
lawsuit,
the
plaintiffs
changed counsel, replacing Franklin
&
Franklin with new class counsel. The
discharged Franklin
firm unsuccessfully
moved
to reinstate itself as class coun-
sel, alleging that the class representa-
tives and their
new
lawyers were guilty
of fraud, self-dealing and conflicts of
interest
When the class action settled for
$37
million, the settlement included
an
attor-
ney-fee award to class counsel, specifi-
notes
that
the
types of
matters
"embraced"
in
an
action, but not
"affect-
ed" by the judgment,
"fall
into
no
partic-
ular pattern."
Witkin,
Section
24.
I
nstead, the court focused on the
purposes underlying
Section
916
and reiterated
the
operative test:
jurisdictional divestiture depends on the
"impact" the exercise of post-judgment
jurisdiction would have on the
"effec-
tiveness"
of
the pending appeal.
See
also
Betz
v.
Pankow,
16
Cal.App.4th
931
(1993) ("the pendency of
an
appeal does
not divest the trial court of jurisdiction
to determine ancillary
or
collateral
mat-
ters which
do
not affect the judgment
on appeal").
That same test carljes through to
fed-
eral practice.
In
fact,
federal
law
is very
similar to California law on these
juris-
dictional issues. The timely filing
of
a
notice of appeal
in
U.S.
District Court
transfers jurisdiction over
orders
and
judgments encompassed by the notice
to the Court
of
Appeals.
See
Griggs
v.
Providerst
Consumer
Discount
Co.,
Owners
For
Fair
Franchis-
ing,
85
Cai.App.4th
1168
(2000),
and
Natural
Resources
Defense
"Council
v.
San Diego Baykeeper
Inc.,
2001 DJDAR 2823
(9th
Cir.
March 20, 2001).
In
Franklin,
the Court of
Appeal affirmed the trial
court's grant of injunctive
relief after a
final
judgment
had been entered and after
an appeal had been filed.
Because
of
the
discrete
'Franklin'
and
'Natural
Resources'
make
clear,
an
appeal
does
not
absolutely
foreclose
further
proceedings
in
the trial
court.
459
u.s.
56 (1982).
As with California
law,
this rule exists to prevent
a district court from
mate-
rially modifying its deci-
sion
pending
appellate
review.
Kern
Oil
&
Refin-
ing
Co.
u
TenfltCO
Oil
Co.,
840 F.2d
730
(9th Cir.
1988)
("The
appellate
court is entitled to review
a
fixed,
rather than mobile
nature of the issue present-
ed by
the
injunction,
the
Court
of
cally,
$2.30 million to the Franklin firm
Appeal found that the proceedings
fell
and
$2.35
million
to the new class coun-
within
the narrow reservoir of jurisdic- sel that replaced
it
The Franklin
firm,
tion left
in
the trial court after an appeal along with a handful of class members
The
filing of a
valid
notice of appeal is who
objected
to
the
settlement,
an event of jurisdictional significance • appealed
the
judgment affirming
the
that
typically divests a trial
court
of · settlement
jurisdi~on
and confers jurisdiction on
record.") Unlike California law,
this
divestiture of jurisdiction does not rest
on statute but rather is a judge-made
doctrine
d~signed
to avoid
the
confu·
sion and waste that would result from
having
the
same
issues
before
two
courts at the same
time.
an
appellate court.
Peopk
v.
Mnukz.,
19
Cal.4th
1084
(1999);
9
Bernard
E.
Witkin, "California Procedure, Appeal"
Section
24
(4th ed. 1997).
Consequently, once a notice of appeal
is filed, a
trial
court
may not vacate
or
amend its own judgment
or
order
or
do
any
other
act
that
would
affect
the
rights of
the
parties or impact the issues
on appeal - even with the parties'
con-
sent.
Mendez;
Valvo
v.
University
of
So.
Cal.,
67 Cal.App.3d 887 (1977).
The
jurisdictional
bar
protects
the
role of
the
reviewing court by preserv-
ing
the
status quo until the appeal
can
be
decided.
Otherwise,
a
trial
court
could interfere with an appeal by chang-
ing
the
result
or
record
under
review,
thereby
possibly
mooting
the
entire
appellate process
or
significantly alter-
ing the presentation of the issues to be
reviewed.
Townsel
v.
Superior
Court,
20
Cal.4th
1084
(1999); see also
In
re
Mar-
riage
of
Varner, 68 Cal.App.4th 932
(1998)
("The trial
court
may not make
any
order
which will lessen
the
effec-
tiveness
of
the
appellate
court's
opin-
·ion.").
But certain matters are not affected
by
a
notice
of
appeal.
Most
notably,
because
a motion for new trial
is
an
independent, collateral attack on a judg-
ment, an appeal does not divest jurisdic-
tion from
the
trial
court
to
hear
and
determine a new-trial motion, even after
the filing of a notice
of
appeal.
Knowles
v.
Thompson,
133
Cal.
245
(1901).
In addition to new-trial motions, a trial
court retains jurisdiction over a host of
ancillary matters. For instance, despite
a pending appeal, a trial
court
can
enter-
tain
motions
related
to
incidents
of
attachment,
satisfaction
of
judgment,
expungement of lis pendens and award-
ing attorney fees. See Witkin, Section
24.
Moreover,
because
a
trial
court
retains jurisdiction over
itS
own records,
it may exercise its power to correct
cler-
ical
errors
in
the
record
or
judgment
despite a pending appeal. E.g.,
Boylan
u
Marine,
104
Cal.App.2d
321
(1951).
The
common
thread
between
these
various proceedings is that they do not
materially affect
the
issues on appeal.
Code of
Civil
Procedure Section 916(a)
codifies this approach by providing that
"the perfecting of an appeal stays pro-
ceedings
in
the
trial
court
upon
the
judgment
or
order
appealed from
or
upon
the
matters embraced therein
or
affected thereby, . . . but
the
trial
court
may
proceed
upon
any
other
matter
James C.
Martin,
of
the
los
Angeles office
of
Crosby, ·Heafey,
Roach &
May,
is a member of
the
firm's appellate department and of
the
American and California Acade-·
mies
of
Appellate Lawyers. Ben-
Jamin
G.
Shatz is a senior attor-
ney
in
the
firm's appellate depart·
rnent
M
eanwhile,
the
Franklin firm also
filed
an
action
in San
Diego
County Superior Court against
the
class representatives and their new
counsel,
alleging breach of contract and
breach
of fiduciary duty.
The
class rep-
resentatives
and
class
counsel
then
moved
the
Alameda court (whose judg-
ment
was
the
subject
of
Franklin's
appeal) for a preliminary injunction to
stay
the
San
Diego litigation.
The
Alameda
court
granted
injunctive
relief.
restraining the Franklin firm from
prosecuting
the
San
Diego action.
The
Franklin firm appealed the order granti-
ng
the
injunction, arguing that its pend-
ing appeal of
the
Alameda court's judg-
ment
robbed that
court
of the ability to
entertain
the
injunction motion because
jurisdiction vested solely in the
Court of
Appeal.
The
Court
of
Appeal
rejected
the
Franklin firm's argument, holding that
the
Alameda
court
had jurisdiction to
enjoin
the
San
Diego litigation - and,
on
the
merits, properly did
so.
In reach-
ing
this
result,
the
court followed
Sec-
tion
916's
directive
and
looked
at
whether
the
subject matter of the post-
judgment
proceeding was Membraced"
or
Maffected"
by
the
judgment and, thus,
necessarily would have an
"impact" on
the
Meffectiveness" of the appeal. .
Using
that
test,
the
court
reasoned
that
the
Alameda court's post-judgment
injunction had no impact on
the
effec-
tiveness
of
Franklin's
appeal
of
the
class-action
settlement
and
that
the
injunction staying the
San
Diego litiga-
tion
did
not
infringe on
the
appellate
court's
jurisdiction over
it
To
the
contrary,
rather
than modify
or
destroy
the
judgment on appeal,
the
injunction would preserve the integrity
of
the
appeal by maintaining the status
quo.
Without
the
injunction,
the
San
Diego proceedings could have changed
the
settlement's attorney-fee award and,
thereby, materially altered
the
judgment
being
reviewed on appeal.
The
injunc-
tion, therefore, protected
the
judgment
pending
the
appeal and was properly
granted.
The
motion seeking an injunction to
stay
related
litigation
at
issue
in
Franklin was not
the
sort
of post-judg-
ment
motion that came within any exist-
ing exception to
the
transfer of jurisdic-
tion. But this gave the Court of Appeal
no
reason
for pause. After all, Witkin
Give Us a Piece
of
Your
Mind
We
want
to hear
~
v.ewpoints.
Send
lrticles to Pcrrela
Kraver,
Los
Arl;eles
Daily
Journal,
P.O.
Box
54026,
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Angeles,
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90054,
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ncme,
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~
iiO:Iress
a"Vj
pl"ooe
f'U'Tbef.
~as
in-c&lliorrua.
the
jurisdiction-
al
di'festment
is
not
totaL A
district
court
retains
jurisdiction
to
correct
..
clerical"
or
Mministerial"
errors
involv-
ing
the
matter
appealed.
In
re
Thorp,
655 F.2d 997 (9th Cir. 1981) (District
Court
retains
jurisdiction to Mcorrect
clerical
mistakesj.
And a district
court
retains jurisdiction over orders enforc-
ing
the
judgment,
tolling
motions
or
·
ancillary
matters
Oike
attorney
fees)
and any other
part of the case
not
affect·
ed
by
the
notice of appeal. ,
The
district court's retention of limit-
ed
jurisdiction derives from both statute ·
and decisional law and is
designed
to
assist
the
appellate
court
by
entering
orders
appropriate to
preserving
the
status quo.
Davis
v.
United
States,
667
F.2d
822 (1982).
Applying these rules,
the
9th
U.S.
Cir-
cuit Court of Appeals issued a decision
similar to
Franklin
two
weeks
ago. In
Natural
Resources,
the
9th
Circuit held
that
the
District Court had jurisdiction
to slightly modify an injunction despite a
pending appeal of
the
injunction. Specifi-
cally,
the
District
Court
changed
the
wording of
the
injunction to clarify what
otherwise could be interpreted as vague
directives.
The
Court of Appeals recognized
that
these changes were only
Mminor
adjust-
ments" to
the
injunction that served to
better enforce it and preserve
the
status
quo. Because the changes did not
mate-
rially
alter
the
status
of
the
case
on
appeal, these changes were not beyond
the District
Court's jurisdiction.
As
Franklin
and
Natural
Resources
make clear, the pendency
of
an appeal
does
not
absolutely foreclose
further
proceedings in the trial
court
Instead,
trial-court proceedings can
be
initiated,
and affirmative relief sought,
if
the
scope
of the ruling
or
relief is not embraced by
the judgment on appeal and would not
impact
the
effecti\leness of the appeal.
Further, if the ruling
or
relief would
help
preserve
the
status
quo
pending
appeal, that too
can
provide a basis for ·
further action by
the
trial
court
Given
these
options, savyy practitioners can
use both courts - trial and appellate -
to fully
protect
their
clients'
interests
during a pending appeal.
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