Appellate Counsellor Tips
Appellate Practice In Action:
County of Los Angeles v. Superior Court (Schonert)
On March 12, 1997, the California Supreme Court granted our petition
for review in a case entitled County of Los Angeles v. Los Angeles
County Superior Court (Schonert), No. S053930. On August 12, 1999, the
Court issued its decision adopting our position.
To illustrate the appellate process in action, I have collected here
various materials related to the case. The case documents are in .PDF
format, which you may view and print with the Adobe Reader available for
free from the Adobe Systems web site.
Patricia Cordova was employed as a deputy sheriff by the County of
Los Angeles. She claimed that she had been subjected to sexual
harassment on the job. Her complaint alleged, among others, a cause of
action under 42 U.S.C. section 1983. She claimed to have suffered
emotional distress damages.
Cordova died in a car accident while defendants’ summary judgment
motion was pending. The Superior Court asked the parties to brief the
issue of what claims for damages survived plaintiff’s death. It
thereafter ruled that Cordova’s representative could seek recovery of
emotional distress damages on the section 1983 claim at trial.
Code of Civil Procedure section 377.34 provides that the damages
available in a survivor's action "do not include damages for pain,
suffering, or disfigurement." The principal issue in the case is whether
that provision is applicable to a claim under section 1983.
As our case entered the appellate stage, the issue had been the
subject of two recent conflicting decisions. Compare Garcia v.
Superior Court, 42 Cal. App. 4th 177 (1996) with Williams v. City
of Oakland, 915 F. Supp. 1074 (N.D. Cal. 1996).
Proceedings in the Second District Court of Appeal
Because the the proceedings in the Superior Court had not resulted in
a final judgment, we had to seek review through a
petition for writ of mandate. For more about the distinction between
appeals and writs, and the writ process see Step By Step Down the Road
to a Writ of Mandate.
On March 7, 1996, the Court of Appeal issued an
and set a hearing for May 28, 1996. On May 20, 1996, the court
discharged its alternative writ, and denied the petition. We then filed
petition for review with the California Supreme Court under
California Rule of Court 28. On August 21, 1996, the Court granted the
petition, and transferred the matter back to the Court of Appeal to
issue another alternative writ and hold a hearing.
The Court of Appeal held a hearing on its new alternative writ on
November 18, 1996, and then denied the petition in a
Proceedings on Review by the Supreme Court
On December 27, 1996, we filed our
petition for review with the Supreme Court. The Court granted review
on March 12, 1997. We then filed a
brief on the
merits, and a
On April 14, 1997, the United States Supreme Court started to weigh
in on the subject, by granting certiorari in a case entitled City of
Tarrant v. Jefferson, 682 So. 2d 29 (Ala. 1996). The Alabama Supreme
Court applied the Alabama Wrongful Death Act to a claim under section
1983 that city firefighters caused the decedent's death by not
attempting to rescue her from a burning house. The Alabama statute only
allows recovery of punitive damages, which as a matter of section 1983
law are not available against a municipality. See City of Newport v.
Fact Concerts, Inc., 453 U.S. 247 (1981).
On December 9, 1997, the Supreme Court
dismissed its writ without deciding the merits, on the ground that
the Alabama decision was not sufficiently final. We informed the
California Supreme Court about the dismissal of certiorari
On May 5, 1999, we filed a
with the California Supreme Court containing additional authorities that
were not available in time to be included in our Brief on the Merits.
See Cal. R. Ct. 29.3(a).
On August 12, 1999, the Supreme Court handed down its
decision, reversing the Court of Appeal, and adopting our position.