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self-study / Appellate Practice

Jan. 26, 2022

Newly Discovered Evidence on Appeal: The Writ of Error Coram Vobis

David M. Axelrad

Partner, Horvitz & Levy LLP

Email: daxelrad@horvitzlevy.com

UC Hastings COL; San Francisco CA

Suppose you represent a defendant at trial. The jury returns a verdict for the plaintiff, the trial court denies your motion for new trial, and you appeal. While the case is pending on appeal, you receive new evidence that would have guaranteed your client a new trial. Is there anything you can do? The answer is yes. If you can satisfy the narrow requirements for a common law writ of error coram vobis, you can ask the appellate court to order the trial court to reconsider its denial of the motion for new trial in light of newly discovered evidence.

A word about terminology. The writ of error coram vobis is substantively identical to the writ of error coram nobis. In re Imbler, 60 Cal. 2d 554 (1963), 570; Ex parte Lindley, 29 Cal. 2d 709, 726 (1947). The only difference today is that "coram nobis" (literally "before us") is sought in the trial court, and "coram vobis" (literally "before you") is sought in the appellate court. People v. Kim, 45 Cal. 4th 1078, 1091-92 (2009); accord People v. Forest, 16 Cal. App. 5th 1099, 1108 (2017); Betz v. Pankow, 16 Cal. App. 4th 931, 941 n.5 (1993).

A word about venue. Filing a notice of appeal deprives the trial court of jurisdiction to entertain a petition for writ of error coram nobis. People v. Haynes, 270 Cal. App. 2d 318, 320-21 (1969). As a result, when an appeal is pending, the appropriate tribunal for such relief is the appellate court. See Prickett, "The Writ of Error Coram Nobis in California," 30 Santa Clara L.Rev. 1, 58-59 (1990).

History. The writ of error coram vobis developed before the advent of motions for new trial as a means to correct miscarriages of justice where no other remedy was available. See Kim, 45 Cal. 4th at 1091; Orfield, "The Writ of Error Coram Nobis in Civil Practice," 20 Va. L.Rev. 423, 426 n.15a (1934); Note, "The Writ of Error Coram Nobis," 37 Harv. L.Rev. 744, 745 (1924). Although used much less frequently now that motions for new trial are available, coram vobis remains as a means in both civil and criminal cases of seeking relief in an appellate court from certain narrow categories of factual errors. See Kim, 45 Cal. 4th at 1091, 1092; People v. Reid, 195 Cal. 249, 254-55 (1924); Rollins v. City and County of San Francisco, 37 Cal. App. 3d 145, 149 (1974); "Coram Nobis in California," 30 Santa Clara L.Rev. at p. 6.

Requirements. The availability of a writ of error coram vobis is subject to a rigorous set of requirements. The petitioner must show that:

(1) "[S]ome fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment." Kim, 45 Cal. 4th at 1093. This means the newly discovered fact "must have been unknown and must have been in existence at the time of the judgment." Ibid.

(2) "[T]he 'newly discovered evidence ... [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.' [Citations.] This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied." Kim, 45 Cal. 4th at 1093.

(3) "[T]he facts upon which [the petitioner] relies were not known to [the petitioner] and could not in the exercise of due diligence have been discovered by [the petitioner] at any time substantially earlier than the time of [the] motion for the writ." Kim, 45 Cal. 4th at 1097. As to this requirement, "the showing of diligence essential to the granting of relief by way of coram nobis should be no less than the similar showing required in civil cases where relief is sought against lately discovered fraud. In such cases it is necessary to aver not only the probative facts upon which the basic claim rests, but also the time and circumstances under which the facts were discovered, in order that the court can determine as a matter of law whether the litigant proceeded with due diligence; a mere allegation of the ultimate facts, or of the legal conclusion of diligence, is insufficient." Id. at 1096-97 (emphasis omitted).

(4) The writ is not available "where the defendant had a remedy by (a) appeal or (b) motion for a new trial and failed to avail himself of such remedies." Kim, 45 Cal. 4th at 1093.

Some courts have narrowed the grounds for the writ even further and held that coram vobis cannot issue absent a showing of extrinsic fraud, i.e., misrepresentation or nondisclosure with respect to material facts that prevents a party from having a meaningful hearing and fully presenting all of the evidence in support of his or her case. Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian, 218 Cal. App. 3d 1058, 1090-91 (1990); Mullen v. Department of Real Estate, 204 Cal. App. 3d 295, 301-02 (1988); Los Angeles Airways, Inc. v. Hughes Tool Co., 95 Cal. App. 3d 1, 9-10 (1979).

Because of the restrictions placed upon granting the writ, coram vobis functions only "to correct an error of fact. It never issues to correct an error of law." Forest, 16 Cal. App. 5th at 1112; see Rollins, 37 Cal. App. 3d at 150 ("Coram nobis is ... available merely to declare as false a fact previously decided to be true"). Coram vobis also will not issue to allow reevaluation of findings or opinions in light of the newly discovered facts. "Forming a new opinion based on a recently learned fact which could have been brought out at trial is not a basis for relief under coram nobis." Forest, 16 Cal. App. 5th at 1112. "The writ of error coram vobis exists to 'correct an error of fact which was unrecognized prior to the final disposition of the proceeding. It is not intended as a means of revising findings based on known facts, or facts that should have been known by the exercise of ordinary and reasonable diligence.'" In re Derek W., 73 Cal. App. 4th 828, 831-32 (1999).

In short, where posttrial motions have been made and denied, "[t]he writ of error coram vobis permits the appellate court" to "independently evaluate[ ] whether the newly discovered fact presented in the petition warrants relief," and, if it does, "command a trial court to reconsider its decision in light of evidence discovered during the pendency of an appeal." Forest, 16 Cal. App. 5th at 1109; see Rollins, 37 Cal. App. 3d at 150. Bear in mind, however, that "[t]he granting of a writ of error coram nobis is completely discretionary" (Forest, 16 Cal. App. 5th at 1111), and remains "an extraordinary remedy [that] should be invoked on those rare occasions when a party has no[] other and the interest of justice so dictates" Monsan Homes, Inc. v. Pogrebneak, 210 Cal. App. 3d 826, 831 (1989).

Let's look at a sample scenario to see how the writ of error coram vobis can turn a case around.

A big rig driving school asks one of its students to take a required, randomly scheduled drug test on 24 hours' notice. The student fails to appear for the test and, therefore, cannot take the school's certification exam -- a prerequisite to obtaining a big rig license. The student has to wait a year to take the exam and apply for a license.

The student sues the school, claiming that he did not use drugs, was willing to undergo a drug test, but did not learn of the test until just before the testing deadline expired, making it impossible for him to comply. The student claims that, but for the unfair drug-testing procedure, he would have passed the certification exam, obtained a big rig license, and earned $300,000 during the following year. A jury awards the student $300,000 in money damages. The trial court enters judgment and denies a defense motion for new trial. The school appeals.

While the case is pending on appeal, the school receives evidence that the student was ineligible to apply for a big rig license. The student's eligibility was a stipulated fact and therefore not adjudicated at trial, and the ineligibility was unknown to either the student or the school.

Here, we have an existing fact that was not presented at trial, and which, if presented, would have resulted in dismissal of plaintiff's case. The new fact involves an issue not adjudicated at trial. Finally, the defendant exhausted his available remedies by moving for a new trial. Under these circumstances, the defendant can seek relief from the appellate court by petition for writ of error coram vobis.

Although it must be reserved for special occasions, the writ of error coram vobis can be a valuable addition to your appellate toolkit.

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