This article originally appeared in The Recorder on January 11, 2022.
In their iconic movie “Duck Soup,” the Marx Brothers illustrate just how crucial timing can be when you want to make a point. Portraying a nation’s president conducting a cabinet meeting, Groucho calls for a discussion of old business and rebuffs a minister who wants to discuss the tariff, on the ground that the tariff is new business. Hearing no old business, Groucho moves on to new business. But when the minister again raises the tariff, Groucho shuts him down: “Too late, that’s old business already.”
Appellants can sometimes feel they are caught in a similar form of limbo. Say you have appealed a judgment and you discover for the first time a problem with the trial court proceedings that would have invalidated the judgment if you had known about it. You can’t complain to the trial court because perfecting an appeal stays proceedings in the trial court on the judgment or order appealed from. Code Civ. Proc. § 916(a). And you can’t raise the issue in the appeal, because the problem is not in the record and, as we all know, if it is not in the record it did not happen. Protect Our Water v. County of Merced, 110 Cal. App. 4th 362, 364 (2003). It seems that no court is willing to listen to what you have to say.
But maybe all is not lost. Appellate procedure has some obscure nooks and crannies that can be useful for dealing with unusual problems. One of them is the common law writ of coram vobis. California is one of the few jurisdictions that still recognizes the writ. England, where it originated over 500 years ago, abandoned it at the beginning of the twentieth century. The Federal Rules of Civil Procedure eliminated it for federal civil proceedings in the 1940s. But California has yet to jump onto this modern trend.
Coram vobis (Latin for “before you”) is a writ issued by an appellate court to correct an error in the trying court that is not apparent in the record. (Its close cousin coram nobis (Latin for “before us”) is a similar writ sought in the trial court, but since this is an appellate law column, we’ll stick with vobis.)
In California, the writ is rarely issued and mostly arises in criminal appeals. The writ will be granted only if the petitioner can show that some fact existed that was not presented to the court at the trial on the merits, and that if presented would have prevented the judgment. People v. Welch, 61 Cal. 2d 786, 790 (1964). It is considered drastic and is disfavored because it amounts to a collateral attack on a judgment, for which only narrowly-circumscribed statutory avenues like motions for new trial or reconsideration are usually available.
Judicial aversion to issuance of the writ is reflected in the exacting requirements that stand as hurdles to its invocation. These include that (1) petitioner was not negligent or at fault in not presenting the fact earlier; (2) the newly discovered evidence does not go to the merits of the issues tried; and (3) the facts on which petitioner relies were not known and could not in the exercise of due diligence have been discovered at any time substantially earlier. People v. Shipman, 62 Cal. 2d 226, 230 (1965). Additionally, the petition may raise only errors of fact, not errors of law. People v. Kim, 45 Cal. 4th 1078, 1093 (2009).
Notwithstanding these barriers, coram vobis can provide a useful safety valve in unusual circumstances that cannot be addressed in any other way. In fact, a pro per litigant managed to secure the writ just last month in Chaganti v. Superior Court of Santa Clara County, 2021 WL 6112575 (Cal. Ct. App., Dec. 27, 2021, No. H048373). This was real estate litigation, which Chaganti as plaintiff lost in part on a defense summary adjudication motion and then, before a different judge, in a jury trial. After he appealed the judgment, he “serendipitously discovered” that the judge who had granted summary adjudication against him had filed, after judgment was entered, a financial disclosure statement showing that he owned substantial stock in AT&T, the sole parent corporation of defendants.
Chaganti then filed a motion in the Court of Appeal seeking to vacate the judgment. The court denied the motion, but without prejudice to his bringing a petition for coram vobis relief. Chaganti took the hint and promptly filed a petition. The court stayed the appeal and issued an order to show cause requiring respondents to answer the petition.
The court found that Chaganti had accomplished the rare feat of ticking all the necessary boxes for coram vobis relief. He had presented a newly discovered fact—the trial court judge’s stock ownership—that he could not have presented earlier and which could have prevented rendition of the judgment he had appealed. The fact did not go to the merits of his suit. And because the judge was obligated in the first instance to disclose the possible conflict of interest that he revealed only after judgment was entered, Chaganti could not in the exercise of due diligence have discovered it earlier.
The issue of whether the trial judge’s ownership of stock in respondents’ sole parent company disqualified him from ruling in the case was one of first impression that the Court of Appeal resolved in Chaganti’s favor.
The Court of Appeal therefore granted the writ, directing the trial court to vacate the summary adjudication and the judgment that incorporated it. The ruling also illustrated the limits of coram vobis. Chaganti had argued that the jury verdict should be vacated as well because the judge who had presided over the trial had spoken to the judge with the disqualifying stock ownership. But the Court of Appeal declined to vacate the jury verdict because Chaganti had not presented any evidence of what the two judges had spoken about.
If you need to make a point and Groucho Marx wants to shut you down, you probably have nowhere to turn. But the appellate rules are aimed ultimately at securing a just result. If at first they shut you down, you might want to dig a little further into the common law to see if you have any alternatives.
On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco, Los Angeles, and San Diego. Charles Kagay is of counsel with the firm. He has decades of experience handling appeals that involve complex or novel legal questions and is certified by the State Bar as a California appellate specialist. Find out more about Charles and the California Appellate Law Group LLP at www.calapplaw.com.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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