Legal News and Appellate Tips

It has been called “the law that swallowed California.” CEQA, the California Environmental Quality Act, accomplished good things at its inception in 1970 but now it is used to thwart nearly any kind of development someone doesn’t want.

“CEQA is not intended as a population control measure,” observed the Court of Appeal in a recent CEQA case, Tiburon Open Space Comm. v. Cnty. of Marin (May 12, 2022, A159860), which rejected a neighborhood group’s efforts to stymie a development project. And yet the way it is used today suggests that “[s]omething is very wrong with this picture.”

In this clip, Peter Prows, an environmental attorney who handles a lot of CEQA cases, runs down the good, the bad, and the ugly of CEQA and the Tiburon case:

The original “grand design” of CEQA was not to frustrate the democratic process but to promote it: projects could go forward, “but only after the elected decisionmakers have their noses rubbed in [the project’s] environmental effects, and vote to go forward anyway.”

Matt Taibbi’s article about how CEQA, as deployed today, acts as a backdoor subsidy to owners of California’s existing housing stock, paid for by new entrants to the housing market (who happen also to be laboring under swelling tuition debt).

CEQA is often used to frustrate high-density projects. But Tiburon involved a decades-long battle to thwart just 43 single-family homes. CEQA can be used as a bludgeon for anyone, so there is something to hate for everyone.

Trick Question: You have 180 days to appeal if no one serves a notice of entry or a file-stamped copy of the judgment. You never received one of those documents. So you have 180 days to appeal, right?

Wrong. Or at least, you can’t be so sure. That’s what the defendants learned in Dannelley v. Wu (D4d3 Mar. 16, 2023 No. G062072) (nonpub. opn.).

They never received a notice of entry, so they appealed just under the 180-day deadline. And it was a big appeal too, over a $3.3 million default judgment.

But the plaintiffs had served a notice of entry. They mailed it to the addresses the defendants had on file. And they did so just a few days after entry of judgment, about five months before the defendants filed their appeal.

But we never got the notice of entry! said the defendants.

Nope. Receipt doesn’t matter. The 60-day clock runs upon deposit into the mail. "[T]he risk of failure of the mail is on the addressee[.]" (Meskell v. Culver City Unified School Dist. (1970) 12 Cal.App.3d 815, 824.)

Doesn’t this rule invite abuse? Would it allow a prevailing party to prepare a false notice of entry and proof of service, without any recourse? The court suggests that such allegations may be given ear, but not here, because the defendants did “not claim any irregularity,” such as “fail[ing] to mail the notice,” or that the addressees were incorrect.

The Upshot:

The best practice is to assume the deadline to appeal is 60 days from entry of the judgment. You can never prove the negative proposition that a clerk or another party never deposited a notice into the mail. So the date of entry is the only date you can confirm with any certainty. Take that, add 60 days, and mark it on your calendar with a fat-tip Sharpie.

Thanks to Ben Shatz for blogging this case: http://bit.ly/407U376

Appellate practitioner and former Florida Supreme Court career staff attorney Lindsey Lawton sits down with us to talk legal writing. For Lindsey, writing is not just her day job, she draws influence for use and enjoyment of the written word from beyond legal briefs. While she maintains a grammar beat on LinkedIn, Lindsey says language ultimately is about being a communicator, not a technician.

(Example: I asked Lindsey if the example “the reasons are as follows” is technically incorrect as containing a subject-verb disagreement. Yes, says Lindsey, but “as follow” just sounds too weird.)

Then we continue our experiment in comparing and contrasting state procedural rules. Here is what we gleaned about the differences between California and Florida:

👉 In FL, the Supreme Court makes the rules of civil procedure, unlike CA where that is the province of the legislature.

👉 Unlike CA, in FL the rules allow parties to create an electronic recording of proceedings for purposes of an appellate record.

👉 Both CA and FL have no horizontal stare decisis: district appellate courts may freely disagree with one another.

👉 But unlike CA, a FL District Court of Appeal cannot ignore its own past decisions: to do that, it has to take the matter up en banc (like in the federal system).

👉 Unlike CA, in FL all the appellate opinions are published.

👉 But unlike CA, in FL there is no right to a reasoned opinion, meaning most affirmance are summary affirmances (how frustrating!!).

👉 Unlike CA, in FL there is no right to oral argument on appeal.

👉 Like CA, FL is beginning to experiment with “focus orders,” identifying issues counsel should be prepared to discuss at oral argument.

👉 Like CA, FL follows the doctrine on appeal that a judgment will be affirmed if valid for any reason, even if the trial court’s stated reasons were deficient or wrong.

👉 But FL has a much more colorful name for this: the Tipsy Coachman doctrine!

While the California Supreme Court is still reviewing the question whether a writ of mandate is the sole method of reviewing an order on a motion for good faith settlement (Code Civ. Proc., 877.6, subd. (e); In re Pacific Fertility Cases (2022) 78 Cal.App.5th 568, review granted August 17, 2022, S275134), a defendant appealed the denial of its motion in Armstrong Townhomes, LLC v. Milgard Mfg. (D1d2 Mar. 9, 2023 No. A164469) (nonpub. opn.).

The problem with the notice of appeal was it was filed 68 days after the notice of entry of order—too late. (Recall, however, that writ petitions are not subject to the jurisdictional filing deadlines.)

So the Court of Appeal asked the defendant to file a letter brief explaining why the appeal should not be dismissed. Here, the defendant had taken the position that the appeal was filed only after the Court of Appeal had summarily denied a writ petition—yet there was no writ petition in the record. What, the court wanted to know, was the defendant talking about?

But the defendant did not file the invited letter brief. Counsel sent the clerk an email indicating they “plan on submitting a letter brief,” but due to preparation for an upcoming trial, they needed an extension, which the court declined.

The requested brief having never been filed, the court dismissed the appeal as untimely.

Sometimes even appellate justices are annoyed by the rules of appellate procedure. Apparently the entire panel would like to affirm this denial of a resentencing petition filed by Arreguin, convicted in 1993 for his part in the murder of Richard Schell. Arreguin served as the getaway driver and urged the gunman to “shoot ‘im, shoot ‘im,” which the gunman did, fatally. But the California Supreme Court in People v. Strong (2022) 13 Cal.5th 698, 717-718 held that earlier findings that a criminal defendant was a “major participant” and showed “reckless indifference” were not binding because, of late, the Court has relaxed those standards.

So upon filing of a resentencing petition and alleging he could not be convicted of murder under the newly relaxed standards, Arreguin is entitled to resentencing.

Justice Gilbert, writing for the majority, concludes it is checkmated by Strong.

But Justice Kenneth Yegan is not going quietly. Although under the doctrine of stare decisis, “I must follow the rulings of the Supreme Court, and if that court wishes to jump off of a figurative Pali, I, lemming-like, must leap right after it. However, I reserve my First Amendment right to kick and scream on my way down to the rocks below.”

Here is how Justice Yegan would have gone about affirming the denial of resentencing:

“Respectfully, there is another way to discharge our duty at the California Court of Appeal. That is to say, the California Constitution admonishes us to not reverse an order unless there is a miscarriage of justice. (Cal. Const., Art. VI, § 13.) There is no miscarriage of justice here. There is a procedural error only. It does not matter that appellant "checked the box" stating he could not presently be convicted of murder. This statement is false. And because appellant falsely checked this box, a new round of litigation has followed. This is a poor idea stemming from the declared false premise.”

The majority sympathizes, but thinks that operative precedent indicates the error is structural. “[W]e hope our Supreme Court will offer guidance on whether requests for section 1172.6 evidentiary hearings in felony murder convictions prior to Banks and Clark are ever subject to a harmless error analysis.”

Comment: I consider is odd that the court assumes the right at issue here is structural apparently despite a clear articulation of such a rule by the Supreme Court. In another recent case last year in People v. Whitmore (D4d3 no. G059779) the appellate court held that a right to an in-person jury trial was not structural, even though it is hard to imagine a more textbook example of a structural right of procedure.

Appellate attorney John Nielsen is forever grateful to his mentors when he was a young attorney, and he pays it forward now both as a mentor himself and by offering tips on legal writing published at the Appellate Advocacy Blog. John discusses his approach to training young associates, and to legal writing.

Then we turn to how Utah differs from California in civil and appellate procedure, including:

👉 Unlike CA, the UT Supreme Court promulgates its own rules that govern the courts.

👉 Perhaps as a result, in UT there is no court-reporter crisis. Instead, proceedings are electronically recorded. If you need a transcript, a court reporter will transcribe the recording. (This is an important #AccessToJustice issue.)

👉 Unlike CA, UT appellate decisions are binding on the appellate court. The court can overrule its past decisions, but it cannot just ignore them, as often happens in CA.

👉 Unlike CA, all UT appellate opinions are published.

👉 Unlike CA, UT appellants are not entitled to a reasoned opinion on affirmance—which is why many appeals are disposed of by order.

And in true appellate-nerd fashion, during the Lightning Round John and Tim briefly debate the exceptions to using ‘s to make possessives of certain words ending in s.

When you are trying to enforce a judgment, you may be tempted to seize special personal property, like mementos, or the beloved family pet. But while these are personal property, if they do not have significant value, it will be seen as an improper purpose. So that might not be a good strategy.

But judgment-enforcement attorney Joseph Chora suggests a couple of good collection practices:

💡Does the debtor have a girlfriend? Set the examinations for the debtor, his wife, and his girlfriend all on the same day. You may find that the examinations will quickly become unnecessary.

💡Does the debtor have valuable intellectual property? The creditor may be able to acquire the IP for nominal value, depriving the debtor of its golden goose. In one case, Joseph relates, this resulted in settling the judgment for 125% of its face value!

Two clearly untimely appeals—and I use “clearly” advisedly here—were not dismissed. If appellate deadlines are jurisdictional, then how to explain this?

Because the judgment was affirmed anyway, you answer? Well, I say, if the court is going to affirm anyway, then why not dismiss as the jurisdiction rules require? Otherwise, is this not just random violence to the rules of appellate procedure?

Jeff has a different view. Here is the Jeff Lewis hypothesis for the utility of complicated appellate rules: relaxing the machinery of arcana is how appellate judges show sympathy to deserving litigants without changing the actual outcome.

But regardless, the no-harm-no-foul excuse only applies to one of the cases. The other case we discuss ended in reversal. How did the court explain how it could possibly reverse a judgment based on an untimely appeal? Simple: It ignored the issue.

Are these cases just exceptions to the normal operation of the rule of law? Of course. But remember: because the sovereign decides the Exception and when, the sovereign is not, in the end, subject to the Rule of Law except, in the final analysis, by the sovereign’s consent. The Rule of Law, then, becomes merely a slogan.

CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). To file the notice of appeal, the attorney logged on to the e-filing system late in the evening of the appellate deadline. Like, really late—at 11:52 p.m.

Owing to a reportedly “slow connection,” the notice of appeal was not file-stamped until 12:00 a.m. That is, the day after the deadline. One minute late.

Can you appeal an order sustaining a demurrer as to less than all causes of action? No—if there is still a cause of action hanging around, the order does not satisfy the one-final-judgment rule.

But if the order sustaining the demurrer would result in a “needless and expensive trial and reversal,” then the order may be reviewed on a petition for writ of mandate.

But there was still one more problem with the homeowner’s association’s writ petition in River’s Side at Washington Square Homeowners Ass’n v. Superior Court (D3 Mar. 6, 2023 no. C095860) 2023 WL 2364423. After the trial court sustained the defendants’ demurrer on the HOA’s construction defects claims on standing grounds, the HOA filed an unsuccessful motion for reconsideration. By the time the HOA filed its writ petition, it had been 95 days since the notice of entry of the order, and 33 days after the order denying reconsideration.

So the writ petition was untimely, right? And appellate deadlines are jurisdictional, right?

No, not on writ petitions. The delay was not unreasonable.

One more useful bit from the case: Another reason the Court of Appeal readily granted writ review was that the Superior Court certified its order sustaining the demurrer under Code of Civil Procedure section 166.1, indicating that the threshold standing issue “raises a controlling question of law as to which there are substantial grounds for difference of opinion, and there was virtually no chance the case would settle until that issue is resolved.”

This factored in the Court of Appeal’s analysis in granting writ review.

If a key question of law is involved in an interlocutory order denying a demurrer, motion for judgment on the pleadings, or motion for summary judgment, consider asking the trial court to certify the question for review. You might entice the trial judge further if resolution of the issue would facilitate a settlement.

This podcast is often a soapbox for complaining about oddities in the California court system. But then we wondered: are the courts in other states better? Maybe they’re the same—or worse. So we thought we should start a conversation with a couple of attorneys on their own soap box in Chicago, Dan Cotter and Pat Eckler, the proprietors of the Podium and Panel Podcast, and compare notes about civil and appellate practice in our respective jurisdictions.

Says Pat: “I can’t imagine Illinois does anything that anyone else should adopt.”

Here is what you’ll learn in this episode:

👉 Jury trials: You can only get a general verdict in IL—no special verdicts!

👉 Unlike CA, the IL Supreme Court promulgates its own rules that govern the courts.

👉 But also unlike CA, IL court rules often conflict with the Code of Civil Procedure—and the conflicts are tricky to resolve.

👉 Like CA, IL also has no horizontal stare decisis (appellate court decisions are not binding on other districts).

👉 Like CA, IL issues a large body of uncitable unpublished opinions.

I haven’t met an attorney who wouldn’t love a tentative opinion or a “focus letter” on their appeal. But have you ever tried to articulate how, exactly, it would help to know what the panel is thinking? It seems intuitive, but really, what would you do if you knew the panel disagreed with you on a certain argument? Repeat your argument—loudly, with gesticulations?

One of the reasons oral argument is helpful, suggests Justice Laurie Zelon—now retired and working as an arbitrator—is because it gives counsel an opportunity to give a “surprising” and unexpected take on the case as a whole. “If you give a tentative ruling, you may not hear those things,“ and “there is less opportunity to see that turning that you didn’t see.”

Think of it this way: Every attorney knows that the most important part of the brief is not Roman numeral III, Part D, subpart 4, romanette iii. Even if that is where your key legal argument lives, the prime real estate in your brief is your introduction. Why? Because that’s where you introduce your sympathetic client, set the tone of your brief, and make your common-sense pitch for your proposed outcome. If you haven’t made your successful elevator pitch, a laser-focused re-examination of your legal argument from romanette iii of subpart D.4 of your brief is not likely to save you.

Take the opportunity of oral argument instead to refocus your elevator pitch.

The 100th episode of the Portia Project®️ airs today, March 2, 2023, kicking off Women’s History Month. The Portia Project Podcast features women judges, attorneys, and other legal professionals, chronicling their unique paths in the law.

Subscribe in your podcast player, or listen and learn more at https://lnkd.in/gaUyYi2m
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In anticipation of this achievement, we interviewed M.C. Sungaila, the host and creator of the Portia Project Podcast, in November on the California Appellate Law Podcast. Listen here: https://lnkd.in/gp7SS4zj
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M.C. was also the Cal.App.Law.Pod’s first guest. You can listen to that episode here: https://lnkd.in/gnnNyDaQ
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You can support the Portia Project Podcast by purchasing one of the guests’ books, or books by or about other women lawyers here: https://lnkd.in/gqYEffBC

In November 2022, the Court of Appeal affirmed an injunction of the San Diego Unified School District’s Covid-19 vaccine mandate in Let Them Choose v. San Diego Unified Sch. Dist. (D4d1 Nov. 22, 2022 No. D079906). The court held that a school district could not require students over 15 years old to receive Covid vaccinations because that is the prerogative of the the Legislature, who has not enacted such a mandate. The court reasoned that the Superior Court was correct when it ruled that “there was a ‘statewide standard for school vaccination,’ leaving ‘no room for each of the over 1,000 individual school districts to impose a patchwork of additional vaccine mandates.’ ”

Two charter schools and a former state senator, Richard Pan, who authored SB 277 out of a need for a “statewide standard,” filed a petition to depublish the opinion. Senator Pan argued that individual schools need to be able to set their own vaccination policies. He said that when he had urged, while a senator, a “statewide standard,” he meant only “a minimum standard.” Schools should not be able to ignore or relax state vaccine mandates, according to Pan, but schools should be able to impose new and stricter mandates.

The plaintiff, the parent of a child fully vaccinated except for the Covid vaccine, responded by noting that Education Code section 49405 states that “ on the subject of vaccination shall be adopted by school or local health authorities.” The plaintiff also noted that the opinion meets the requirements for publication under California Rules of Court rule 8.1105 because, among other things, it establishes a new rule of law or applies a new interpretation of existing law, and involves a legal issue of ongoing public interest.

On February 22, 2023, the Supreme Court denied the depublication request, and denied review.

You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case.

And, you had better make a record on it.

On this episode of the California Appellate Law Podcast, reprising Tim’s recent CLE presentation, we cover 10 tips that appellate attorneys want every trial attorney to know:

💡 The rule that contains all appellate rules: Make the Record.

👉#1 Make sure your theories of the case are captured in your pleadings

👉#2 Was key evidence excluded? Preserve the issue by making a proffer.

👉#3 Keep objecting to evidence if the judge “defers” ruling on your MIL.

👉#4 Object to Jury Instructions

👉#5 Review the Verdict for Inconsistences

👉#6 Request and Object to the Statement of Decision

👉#7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs!

👉#8 Calculate Appellate Deadlines Correctly

👉#9 Avoid Common Appellate Briefing Mistakes

👉#10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest)

💡 Evergreen Tip: Get a Court Reporter!

After getting hit with an anti-SLAPP fee award, the plaintiff in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.) filed a notice of appeal. McKenna had already filed the order granting Sony’s anti-SLAPP motion based on alleged misappropriation of the likeness of the late actor Christopher Jones in the Quentin Tarantino Film Once Upon a Time … in Hollywood.

To file the notice of appeal, the attorney logged on to the e-filing system late in the evening of the appellate deadline. Like, really late—at 11:52 p.m. Owing to a reportedly “slow connection,” the notice of appeal was not file-stamped until 12:00 a.m. That is, the day after the deadline.

One minute late.

The plaintiff also had a second problem: the notice of appeal did not identify the order being challenged on appeal, or the name of the appellant, and so the clerk rejected the notice of appeal for that reason. So the morning after the deadline, the plaintiff filed a motion to amend the notice of appeal to correct those errors. The plaintiff also explained the e-filing problems.

But the Court of Appeal still dismissed the appeal.

This case applied the rule providing for relief for e-filing mishaps much more narrowly than another recent case in Garg v. Garg (D4d3 Sept. 7, 2022 No. G061500).

And it also declined to invoke the doctrine of liberality, which the same Second District invoked—rather liberally—in its recent decision in Magyar v. Kaiser Permanente Medical Center (D2d2 Jan. 23, 2023 No. B315353).

So when it comes to invoking the rules that might relax the deadline to appeal, your mileage may vary. Do not count on them.

“I know the sting of a loss as well as anyone,” says Justice Laurie Zelon, but if the course of the case is really not going to change, writ relief is highly unlikely.

If the issue is going to be dispositive of the case so that the case would have to be retried, however, that is a good candidate for a writ. “The court does understand that the last thing you want to have happen is to have a case get fully tried and then retried.”

This will probably never happen to you, but in case your appeal is dismissed and you are late in filing your motion to vacate the dismissal to reinstate the appeal, consider asking the Court of Appeal for a favor like in Sidney v. Riley. The Court of Appeal asked the Supreme Court to grant review and transfer the case back.

In Sidney, the appellant’s opening brief got kicked for defects, and the appellant failed to refile on time. So the court dismissed the appeal. The court can vacate a dismissal and reinstate the appeal, but only so long as it retains jurisdiction. After 30 days, the Court of Appeal loses jurisdiction. Here, the docket indicates the motion was filed "[o]n November 15, 2022, at 12:52 a.m., a day after this court's jurisdiction ended."

But even though it no longer had jurisdiction, the court still did the appellant a favor. Division 2 asked the Supreme Court to grant review on its own motion and transfer the case back, "to allow this court to act on appellant's motion."

And the Supreme Court obliged.

Thanks to David Ettinger for this tip.

So you think you know how to determine the deadline to file your notice of appeal? You can test your abilities using the facts of Castillo v. McCreary (D2d3 Feb. 21, 2023 No. B317493) 2023 WL 2131341 (nonpub. opn.).

On September 3, 2021, the trial court entered a minute order imposing discovery sanctions against the defendant’s attorney totaling $6,577. That is more than $5,000, so it is appealable. (Code Civ. Proc., § 904.1(a)(12).)

The minute order was not file-endorsed. But it attached a certificate of mailing, which was filed-endorsed.

The default deadline to take an appeal is 180 days. (Cal. Rules of Ct., rule 8.104(a)(1)(C).) But a file-endorsed order showing the date it was served triggers the 60-day deadline to appeal. (Cal. Rules of Ct., rule 8.104(a)(1)(A).)

So was a non-stamped order attaching a stamped certificate of mailing a triggering document under rule 8.104?

Close call, but no, held Castillo. Under Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, the court may treat the order and certificate of mailing as the same document, for purposes of complying with the part of the rule that requires the order the show the date of mailing. But are they the same document such that a file-stamp on the certificate constitutes a file-stamp on the order? “[W]e are not aware of any courts to have taken that approach and we decline do so here.”

“Here, the trial court's minute order is not “truly” filed-endorsed.”

For attorneys, the best referral is a referral from another attorney. But before you refer to another attorney, beware of the ethical traps. Kristi Thomas, a labor and employment attorney who also focuses on ethical issue, warns in a recent article that incautious referrals can lead to a conflict of interest, or an improper referral fee, or even liability for making a negligent referral.

Kristi discusses these traps, and offers some tips how to avoid them:

👉 Given multiple names when making a referral, not just one. (Especially if you have a referral-fee arrangement with one of them.)

👉 Don’t vouch for your colleagues. That doesn’t mean you can’t say anything about them, but instruct potential clients to do their own research.

👉 Control the conversation with the potential client to avoid eliciting confidential information and creating conflicts—don’t let them “vent.”

👉 Send non-engagement letters, confirming no attorney-client relationship has been formed.

👉 Check your malpractice policy to see if it covers negligent referrals—not all of them do.

Last week I presented my talk “Ten Trial Tips from an Appellate Specialist” to the San Francisco Lawyers Network (Feb. 16, 2023).

Here are the tips:

Rule Zero: Make the Record

#1 Make sure your theories of the case are captured in your pleadings

#2 Was key evidence excluded? Preserve the issue by making a proffer.

#3 Keep objecting to evidence if the judge “defers” ruling on your MIL.

#4 Object to Jury Instructions

#5 Review the Verdict for Inconsistences

#6 Request and Object to the Statement of Decision

#7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs!

#8 Calculate Appellate Deadlines Correctly

#9 Avoid Common Appellate Briefing Mistakes

#10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest)

Evergreen Tip: Get a Court Reporter!

You may download a PDF of my slideshow by clicking through to the full article.

Thank you to my colleagues who sent me their top tips!

“When I got out of law school,” Joseph Chora, Esq. related, “I knew nothing.” So like many of us, he started out by taking any case that came in. Until, that is, a mentor told him “that’s a dumb idea.” Instead, you should “find something that is difficult, arcane, and that nobody knows how to do.”

A lot of trial attorneys seeking a judgment are like the dog that caught the car. So you got what you were after—now what?
There are few areas more important than judgment enforcement. After all, a judgment by itself has at best dubious value. Yet because the rules of judgment enforcement are so technical, few attorneys are prepared to turn that judgment into cash.

You may be able to convince a judge that an arbitrator’s award was wrong on the law. The judge thought so in E-Commerce Lighting, Inc. v. E-Commerce Trade LLC (D4d2 Dec. 9, 2022 No. E074525) --- Cal.Rptr.3d --- and so reversed the setoff awarded by the arbitrator in this lender-borrower dispute.

Basically, the lender and borrower both prevailed and got awards of about $2.5 million against each other, which the arbitrator then set off against each other. The intervening bank (not a party to the arbitration) then moved to “correct” the award to eliminate the setoff, arguing it had a superior right to recover, and that the setoff interfered with that right.

The trial court thought that seemed a pretty easy fix, and reversed the setoff.

But that was wrong, the Court of Appeal held, because the trial court’s power was limited under Code of Civil Procedure section 1286.6(b), in cases where “arbitrators exceeded their powers,” to “correct[ing] without affecting the merits of the decision upon the controversy submitted.”

Where is the line between “correcting” a decision and “affecting the merits”? The court noted that, when the parties have contested an issue in the arbitration, the arbitrator's resolution of that issue is a decision on the “merits.””

Here, the question of setoff was raised as an affirmative defense in the arbitration, and was a litigated issue. So the arbitrator’s decision on it was on the merits, and thus beyond the trial court’s jurisdiction to alter via “correction.”

The issue that most often drags appeals back into more litigation is attorney fee and costs. What happens when, while focusing on the appeal, the prevailing party gets a substantial award of fees and costs?

• Do you have to separately appeal from the fees and costs award? (Yes…usually.)

• How can you stay enforcement of the fees and costs award? (Fee & cost awards are stayed automatically…sometimes.)

• If you win the underlying appeal, what happens to the fees and costs award? (It goes away automatically…in theory.)

We discuss these questions and more in this nuts-and-bolts episode of the California Appellate Law Podcast.

When I tell trial attorneys my top appellate advice—don’t forget to get a court reporter—the common response is, “I already knew that.” But when I give them my second most important appellate advice—don’t forget to request a statement of decision—the common response is bemusement. “What for? The court gives a tentative decision, and I can request the statement of decision then.”

Not always, as the ARCO learned in Atlantic Richfield Co. v. California Regional Water Quality Control Board (D3 Dec. 5, 2022 no. C093124) 2022 WL 174141444 (nonpub. opn.). The trial court held a hearing that lasted all of 79 minutes. ARCO did not request a statement of decision before submitting. Instead, ARCO assumed it could wait until the trial court issued its written order, when it would have a 10-day period (plus a 5-day extension for mail service under CCP 1013) to request a statement of decision.

Not so. The trial court denied the request as untimely, because under California Rules of Court rule 3.1590(n), “When a trial is completed within one day or in less than eight hours over more than one day, a request for statement of decision must be made before the matter is submitted for decision . . . .”

ARCO then made an argument that was too clever by half—though it was supported by caselaw. ARCO argued that, although the proceedings only lasted 79 minutes, the judge must have spent a lot of time reviewing the voluminous record, and that would have taken more than eight hours.

But the court rejected that. Instead, the court followed In re Marriage of Gray (2002) 103 Cal.App.4th 974, including this quote from Gray explaining how to count to eight hours for purposes of determining whether you have to request a statement of decision at the hearing.

The Upshot: Failing to request a statement of decision can affect the outcome of your appeal. You need to request a statement of decision before the matter is submitted if the proceedings are less than one day or eight hours. How do you count eight hours? Include all time in open court, including recesses—but not lunch and evening recesses.

But why risk it? Just ask for a statement of decision before submitting. Even better: file a written request for a statement of decision at the outset of the proceedings, identifying the key issues on which you want the court to make findings.

Ordinarily, it would not be newsworthy that a U.S. District Court allowed a brief that was filed 15 minutes late. But Judge R. David Proctor not only refused to strike the late-filed brief: he ruled that striking a brief just because it was filed 15 minutes late would be absurd.

In the District Court ruling in Whitworth v. Mezrano, 2:20-cv00756 (S.D. Ala. Jan. 13, 2023), available at Above the Law, Judge Proctor noted that “There are no doubt many other instances when 15 minutes could make a world of difference,” such as 15 minutes extra time presenting oral argument, or running a marathon, or making a departing flight. “But, the electronic filing of an opposition brief in this court on a late Thursday afternoon is not one of them.”

Judge Proctor then sketched out a parody chambers scene in a “parallel universe” in which idle court clerks expectantly scan the wires in the waning minutes approaching 5:00 p.m., breathlessly awaiting a litigant’s brief, whereupon they commit and resolve to devote their evening to “reading — no, consuming and cherishing — every syllable of this filing.”

“Only in such a distant, parallel universe,” Judge Proctor concludes, would striking the late-filed brief “make any sense.”

Upshot: Next time you need to seek leave to file a late brief, consider referencing Judge Proctor’s observation that filing a brief late by a matter of minutes could only make a difference in “a distant, parallel universe.”

On this cases-and-tidbits episode, Jeff Lewis and I discuss:

• Ramirez v. Avon Products: There is no “corporate representative” or PMQ exception to hearsay and foundation objections. So summary judgment had to be reversed.

• Flickinger v. Finwall: Do you ever worry your prelitigation demand letters may be construed as extortion? I mean, Flatley v. Mauro shows the letter has to be really bad, but some judges find extortion where there isn’t any. That can be chilling. Which may be why the Court of Appeal published this recent opinion finding no extortion, thus reversing the trial court.

• Are DVRO or CHROs prior restraints on speech? Czodor v. Luo (Jan. 10, 2023, G060756) suggests narrowly tailoring the restrained speech to statutory abuse.

• Could AI tell the difference between extortion and a permissible demand letter? We discuss one attorney’s proposal that judges replace their law clerks with AI.

• Mitchell v. Mitchell (Jan. 27, 2023, A164780) reminds us that attacking trial court or opponent is not a viable strategy.

CEB has published my article, “There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness.” The article discusses Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915), which reversed a summary judgment. The corporate defendant had supported summary judgment with a “corporate representative” declaration about matters outside the declarant’s personal knowledge. The court held that corporate litigants cannot get around hearsay and foundation problems by designating their witnesses “corporate representatives” or “persons most qualified.” These are deposition tools, not end-runs around the rules of evidence.

The California Supreme Court affirmed a powerful tool for civil lawyers last year in Siry Investment, L.P. v. Farkhondehpour when it held that, yes, theft by false pretenses under Penal Code section 496(c) is available in civil actions. But don’t get too cocky: as Wang v. EOS Petro, Inc. (D2d7 Jan. 13, 2023 No. B317659) 2023 WL 178372 (nonpub. opn.) observed when reversing a default judgment based on section 496(c), a plaintiff has to prove “criminal intent,” and that means more than mere nonpayment.

In Wang, the borrower-defendants took a number of loans from the lender-plaintiffs. The borrowers never made a single payment. The lenders sued, but the borrowers never answered. So the lenders got a default judgment, including attorney fees under Penal Code section 496(c).

The Court of Appeal reversed the section 496(c) claim. If all you have is an unpaid debt, that is not enough: "a mere unfulfilled promise or misrepresentation of fact is insufficient to establish an intent to steal.” (Siry, supra, 13 Cal.5th at p. 368 (conc. opn. of Groban, J.).)

Judgments sometimes say the prevailing party is entitled to costs. They sometimes even have a blank for the clerk to write in the amount of costs later.

But don’t wait for that to happen before appealing. That’s what the appellant did in Worsnop v. Dept. of General Services (D3 Jan. 24, 2023 No. C091167) 2023 WL 369440 (nonpub. opn.). By the time the costs were awarded, the deadline to appeal had run. So the appellant’s appeal was dismissed.

Readers might recall that last year I covered the Second District case of Pelter v. 1-800-Get-Thin, Inc. (D2d1 May 11, 2022 no. B307771) 2022 WL 1485533 (nonpub. opn.), involving a near-identical situation. The respondent moved to dismiss the appeal, presumably based on the same principles cited in Worsnop—an amendment that merely adds costs does not resurrect the time to appeal.

But the Second District not only denied the motion to dismiss, but shot back at the respondent: “No principle or authority supports the argument—Pelter's notice of appeal specifically references only the later, amended judgment.” That was the entirety of the analysis on the issue.

The Pelter decision was wrong. The Worsnop opinion is right.

With his background as a brewery owner, business litigator Greg Nylen defends attorneys from “the triumvirate” of unfair-competition claims: the Unfair Competition Law, the False Advertising Law, and the Consumer Legal Remedies Act. Greg shares some trends, tips, and traps emerging in this space, including:

💡 Courts are getting a bit more stringent on the “reasonable consumer test”—the determination whether a large portion of the target market is likely to be misled. Does “krab meat” come from crab? Are rumors that outlet stores carry nowhere-to-be-found merchandise actionable? Increasingly, the courts’ answer to these questions is: Come on.

💡 But the “reasonable consumer” depends on what the product is. King’s Hawaiian bread is actually made in Torrance, CA. Does that matter? Probably not, because bread is bread. But what if the product was beer—where consumers may have more discriminating tastes, and the quality of the water matters to the product? The answer might change.

💡 The “reasonable consumer” is often determined as a matter of law. So plaintiffs’ strategy is to rely on consumer surveys, to make the determination factual in nature. Does it work? As Greg explains, you may be able to attack the survey as a matter of law.

💡 Litigation consumer claims in federal court? Beware of Article III standing. And bookmark the Sonner v. Premier Nutrition case—plaintiffs might not be able to get both legal and equitable relief in federal court.

Even judicial clerks face harassment and discrimination by their judge-employers. Aliza Shatzman knows this first hand, and it’s why she started the Legal Accountability Project. But how can we achieve accountability in such a strange place as a court?

Judicial jobs are not like normal jobs. Former Supreme Court clerks command signing bonuses in the stratosphere of $400,000 or more. Similarly, over 80 former staffers in Senate Maj. Leader Chuck Schumer’s office are now working in Big Tech. The Hill is not exactly where you go looking for top coders.

The value of working for a judge—like the value in working with Harvey Weinstein—is the value of the connections. So some people take the attitude that these jobs are a privilege, and those who get them should suck it up and not complain.

Do normal rules apply to these privileged workplaces—like Hollywood, or courts?

Watch the clip here: https://lnkd.in/gBjNjnMm

This is a clip from episode 39 of the California Appellate Law Podcast. Listen to the full episode here: https://lnkd.in/gc6_aH5w

Aliza Shatzman’s dream of a judicial clerkship turned into a nightmare. Just to get the experience, and the career credit, of a judicial clerkship, Shatzman would have put up with her judge calling her “bossy” like his wife, and telling her he preferred the company of her male co-clerk. But then her judge terminated her clerkship early—and gave her a negative reference—because, he said, she made him uncomfortable and she “lacked respect” for him.

Her HR complaint? Shatzman was reminded judges are special people and HR doesn’t have any control over them. What about the misbehaving judges’ colleagues? “Judges are notoriously unwilling to discipline their own.”

As for judicial complaints, they are routinely mishandled, and this mishandling sends the message: suffer in silence—don’t bother sending up further complaints.

In this clip from episode 39 of the California Appellate Law Podcast, Aliza Shatzman shares the origin story of the Legal Accountability Project, and why misbehaving employers need to be held accountable—even when the misbehaving employer is a judge.

What happens when the unmovable object—here, a jurisdictional limit—meets an unstoppable force—here, the liberality doctrine. We find out in Magyar v. Kaiser Permanente Medical Center (D2d2 Jan. 23, 2023 No. B315353) 2023 WL 355173 (nonpub. opn.): the unmovable object gave way. And so the plaintiff, who lost on summary judgment and forgot to appeal the judgment, got it reversed anyway.

What happened was there were two summary judgments, entered six days apart. The plaintiff appealed from the first, but apparently neglected to appeal from the second. The court said that, ordinarily, this means that the second judgment was outside the court’s jurisdiction to review. But under the “liberality doctrine,” the court inferred the plaintiff intended to appeal from both, because there was “nothing that would logically and conclusively demonstrate plaintiffs intended to appeal solely from one of the judgments.”

This is about the broadest application of the liberality doctrine that I’ve seen. And it starts from the assumption that all judgments are contained in the notice of appeal unless something in the record “logically and conclusively demonstrate[s]” otherwise. That seems off to me.

A trial court relied on a hearsay declaration when it granted summary judgment to Avon in this talcum-powder case alleging asbestos-exposure. There is a growing consensus that trial court rulings on evidence are reviewed under the more lenient abuse-of-discretion standard, even on summary judgment. And Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915) supports that consensus.

But the court still reversed. There are limits to what qualifies as evidence that can shift the burden of proof in the summary judgment context to the nonmoving party.

The important thing to take away from the published Ramirez opinion is that corporate litigants cannot get around hearsay and foundation problems by designating their witnesses “corporate representatives” or “persons most qualified.” These are deposition tools, not end-runs around the rules of evidence. As the court put it:

“There is no special category of “corporate representative” witness, as the trial court suggested. There is no exemption from the Evidence Code for a witness who has conducted an “independent review,” whatever the trial court meant by that phrase.”

Comment: The opinion is not clear how the trial court “abused its discretion,” as opposed to merely commit legal error, **in overruling the hearsay and foundation objections to Avon’s evidence—other than that the evidence was, in fact, hearsay and devoid of foundation. The upshot is that the distinction between de novo and abuse of discretion when it comes to evidentiary rulings may come down to more of a mood or nuance than a legally measurable difference.

The autism pandemic now affects between 1-in-44 and 1-in-35 children by the age of 8, according to a December 2021 Rutgers report—a rate that has climbed some 241% since 2000.

And one of the big ways this affects the millions of families raising children with autism is obtaining and fulfilling IEPs—Individualized Education Programs.

Special-education law attorney Tim Adams represents families to get their children the educational support they need. And because districts often have more legal support than financial support, these issues often wind up in court.

And while petitioners may be entitled to recover their attorney fees, surprisingly they are not entitled to their expert costs. This rule (an oversight?) tips the scales sharply against families, and could be easily fixed by Congress.

After reviewing the science-based trial tips in John P. Blumberg’s Persuasion Science for Trial Lawyers, who would appellate specialist Stefan Love prefer as a trial consultant: a social scientist? Or a TV writer?

A social scientist can tell you, with citations to studies, why this or that strategy is likely to work. But gifted storytellers have captured imaginations, even if they can’t say quite how or why their stories work.

Sometimes, lawsuits involve allegations of embarrassing or even illegal conduct. And a prelitigation letter that references that conduct might be considered extortion. The trial court thought an attorney letter was extortion in Flickinger v. Finwall (D2d8 Nov. 30, 2022) 85 Cal.App.5th 822. But the Court of Appeal disagreed, and published its opinion saying so.

The unsavory allegations were between a homeowner and his contractor. The owner, in a drunken conversation with the contractor, confessed he’d taken money illegally as kickbacks during his overseas trips for his employer, Apple. The contractor eventually quit his job, allegedly based on trepidation of taking ill-gotten money.

When the homeowner demanded payment, the contractor’s attorney responded with a matter-of-fact statement that litigation “[could] result in Apple opening an investigation into [plaintiff's] relationships with vendors.”

The Court of Appeal said this was not extortion because the letter was sent to the owner’s attorney—not to the attorney directly. And the letter was responding to the owner’s demand letter—it was not a threat out of the blue. And the letter defended the contractor on the merits—rather than merely stand on the force of the threat. And the statement that litigation may bring the kickbacks issue to light was not a threat to report to prosecution, but merely a matter-of-fact observation.

So the order denying the defendant’s anti-SLAPP motion was reversed with directions to grant the motion. And the defendant will recover his attorney fees for both his motion and the appeal.

(I am surprised that the trial judge thought this was even close to extortion. It does not seem like a close call to me.)

Question: What’s the difference between an arbitration ruling based on an interpretation of contract that is merely wrong, and one that is irrational?

The answer in Hayday Farms, Inc. v. FeedX Holdings, Inc., No. 21-55650 (9th Cir. Dec. 19, 2022), an appeal from an arbitration award, is about $7 million.

This is yet another cautionary tale that arbitration severely constrains the litigants’ appellate rights. The 9th Circuit panel agreed that the appellant’s interpretation of the contract was the right one, but that was not enough: the arbitration award was not “irrational” or “some form of vigilante justice,” so it stands.

The arbitration panel awarded the plaintiffs $21 million on the contract dispute, but when the plaintiffs moved the district court to confirm the award, the defendants argued that $21 million was excessive. The large award was more than the plaintiffs stood to receive had the contract been performed, and so under California Civil Code section 3358, the award was excessive.

The district court agreed the arbitration award was excessive, and reduced it by $7 million.

The 9th Circuit reversed the district court and reinstated the aribtral award, even though the panel agreed with the district court that the award was excessive. As Judge Milan wrote, the defendant "probably offers the best interpretation of the parties’ agreements,” and the panel expressed "concern about a seemingly unfair damages award that likely violates § 3358.”

But as long as the arbitral award "was not some form of vigilante justice,” it has to be affirmed.

Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly: if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection.

Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial continued. (Might be a backdoor strategy to continuing trial dates.)

And a trial court abused its discretion in hearing a SLAPP motion before a restraining-order motion. The SLAPP ruling meant the case was stayed and the restraining-order issue couldn’t be heard. That’s not right. Trial courts need to make sure those issues are heard with or before SLAPP motions.

Motivated by his sister’s deafness, Justice James Lambden has long advocated for improved access to our court system. “Without access,” he says, “there is no justice.”

But by the time Arnold Schwarzenegger was governor, California still had no real funding for access. So Justice Lambden urged a budget line item for legal services.

It failed. So he tried again the next year.

It failed again.

Not one to bang his head against a wall, Justice Lambden tried political savvy. He renamed the budget item. It’s name: The Sargent Shriver Access Issue. “We always suspected Maria Shriver probably had a little influence on the governor.”

This time, it passed. “It was the first time California actually funded legal services at that level,” Justice Lambden says, “and it’s been a line item ever since,” responsible for $300 million in access funding.

Unlike federal judges who sit or life after being confirmed by the Senate, California Supreme Court justices’12-year terms follow confirmation by election. But our newest justice, Kelly Evans, was not […]

Preparing for an expert witness at trial? You probably are ready with the key cases of Sanchez (preventing experts from testifying about case-specific hearsay) and Sargon (prohibiting speculative opinions). Sargon has become the go-to objection for out-there expert opinions.

The talcum-powder manufacturer defendants raised Sargon in the mesothelioma case of Bader v. Johnson & Johnson, No. A158868 (D1d4 Dec. 23. 2022). The plaintiff recovered a $12 million verdict based in part on plaintiff’s expert’s novel opinion that fibrous talc causes cancer. The defendants argued that the broader consensus of experts did not agree with the plaintiff’s expert. So the defendants objected on the basis of Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769.

But that was the wrong objection. The Court of Appeal noted that Sargon “does not speak to whether a theory has achieved a consensus in the field sufficient to render it "generally accept[ed].”” If the defendants wanted to object that the expert’s opinion was a novel theory not generally accepted within the relevant scientific community, “their motion to exclude did not challenge his testimony based on Kelly and its progeny.” So the objection was forfeited.

The Upshot: Don’t stop at Sargon! Sargon is not a substitute for objections to novel and not-generally-accepted scientific theories. For that, make sure to keep People v. Kelly in your expert-witness toolkit.

In this roundup episode, we summarize the best tips for briefing, argument, and overall advocacy from the judges, attorneys, and specialists Jeff Lewis and I interviewed on the California Appellate Law Podcast in 2022.

Some of the tips and trends we cover:

There is a trend toward informality in legal writing—but do pop-culture references go too far?

Everyone knows oral argument usually doesn’t change the outcome, unless you have a whiz-bang answer to that all-important question from the panel. Which is why the drumbeat for “focus letters”—where the panel reveals the all-important question in time to formulate an answer to it—is getting louder.

Stop bombarding courts with evidence and arguments. Not only does it overtax juries and judges, it betrays weakness: If you’re right, why do you keep repeating yourself?

And from one of our favorite conversations, Justice James Lambden offered this metaphor for the practice of law and the importance of civility:

“Litigation is not like preparing for a battle, it’s more like going on an expedition … like taking a trip across the mountains and encountering different places where you have to do different things.”

Ever file a motion only for the clerk to give you a hearing date after trial. Lot of good that does. That happened to the defendant in Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022). So he filed an ex parte to get a timely hearing or continue the trial. But the trial court denied it, telling the defendant that, even though his MSJ was technically timely, he still should have filed it earlier.

That’s wrong, and the Court of Appeal published its opinion granting a peremptory writ. The trial court’s “calendaring issues are not a basis on which the trial court can refuse to hear a timely filed summary judgment motion.”

The court published the decision “to provide guidance on the deadline for filing a summary judgment motion that is served electronically.”

The Upshot: The court’s refusal to hear a timely-filed motion is one of the few areas where the Court of Appeal may be inclined to grant writ relief. So if you have a timely righteous motion, don’t let the trial court deny you a hearing just because of local rules or department calendaring preferences.

Some appellate courts issue tentative opinions or focus letters, tipping off counsel to the issues of most interest to the panel. Justice James Lambden says they improve the quality of oral argument.

Think about it: three appellate judges and their research attorneys have been thinking deeply about this one question in the case, and then the panel springs it on counsel without warning.

Instead of just making sport of the outing, a focus letter would help bring counsel into the conversation where they might stand a chance at helping the discussion along—rather than just floundering out there to no one’s benefit.

The reason there are so few medical-malpractice attorneys is that, on top of having to overcome juries’ strong pro-doctor bias, damages caps turn even the most hard-fought wins into mere break-even propositions. So how did Ben Ikuta, a new guard med-mal attorney, amassed over $17 million in client victories in 2022 alone?

Ben shares some of his secrets and insights:

🗝 Winning a medical-malpractice trial requires flawless planning and execution, so hyper-preparedness is essential, including hiring experts even before filing a case.

🗝 The right expert is important. Jargon and confusion work to the defendants’ benefit. So the plaintiff’s experts need to be able to thread the needle between showing expertise while also being intelligible and relatable.

🗝 The MICRA caps limit general damages to $250,000, upending the economics of litigating even the most heart-breakingly devastating injuries caused by egregious negligence. So the only way to bring justice to the bad actors in the healthcare field is to find high-earning victims—the MICRA caps don’t apply to economic damages.

🗝 In 2023, the $250,000 MICRA caps will be relaxed slightly to $350,000, and the amount may be recovered against the provider defendant, the institutional defendant, and unaffiliated defendants, for a total possible non-economic damages recovery of $1,050,000.

🗝 Firm culture matters: Ikuta Hemesath is fully virtual, which keeps costs low and gives staff flexibility. What about firm culture and relationships? Ben shares that the firm takes off one day a month for a group outing.

Judges just don’t get your arguments sometimes, it seems, and that can be really frustrating. But don’t lose your cool. The Court of Appeal in Shah v. Fidelity Nat’l Title Ins. Co. (D1d1 Dec. 27, 2022) 2022 WL 17959563 (nonpub. opn.) admonished counsel for impugning the trial court and opposing counsel in the appellate briefs.

The plaintiff had his case dismissed on a demurrer, but got it reversed on appeal. But then the trial court dismissed his case on summary judgment. To the plaintiff, it probably felt like the trial court was looking for any way to quickly dispose of the case.

And so his attorney on appeal let the trial court have it. He said the trial court “refuses to learn” the law, “misrepresents” the law and “knowingly errs to achieve a preconceived outcome.” Counsel also called the MSJ proceedings “a magical mystery trial” and accused the trial court of “duplicity.”

Not to be left out, counsel also accused the defendant’s counsel of using “sophistry” to “seduce gullible courts” with a “bag of tricks, lies, and misdirection.”

The Court of Appeal admonished—though did not sanction—counsel for this diversion from the rules of civility. “Such bombastic, ad hominem attacks have no place in an appellate brief and are potentially contemptuous and sanctionable behavior.”

My Comment: While perhaps not widespread, there is a notion among many attorneys that such bombastic language is needed to “cut through the noise” and get a court to understand the severity of the problem. While I strongly disagree, my faith in civility has been shaken when judges not only fail to express umbrage at uncivil language, but even seem to take conclusory accusations at face value. For this reason, while I never use bombast in my own writing, I cannot count it out of the question: sometimes, at least in the trial courts, it does seem to work. Much to my chagrin.

But I have never seen it work in the appellate courts. You may be admonished for using bombast and adverbs to excess. But worst of all, you will have lost all hope of persuading your panel.

The holding in the published opinion in Blizzard Energy, Inc. v. Shaefers (D2d6 Nov. 29, 2022) 85 Cal.App.5th 802 is that a frivolous cross-complaint counts toward the five frivolous lawsuits an in pro per litigant may file under Code of Civil Procedure section 391 before being deemed a vexatious litigant. The trial court had refused to declare Shaefers a vexatious litigant because one of his lawsuits was a cross-complaint and the trial court thought that didn’t count. It does count.

But how did Blizzard convince the court to grant review of the order? Parting ways with a First District opinion from earlier this year, the Second District here held that an order declaring a person to be a vexatious litigant is the equivalent of an injunction. And injunction orders are appealable under section 904.1. So the Blizzard court held the order was appealable.

My view: I’m not so sure. Orders that restrict or require actions in the real world are different from orders that restrict or require actions in court world. Orders requiring a corporation to pay dividends? Injunction, of course, thus appealable. Orders requiring a corporation to produce documents? Also an injunction? Not a chance.

Yet what is the difference? The only difference I can detect is one affects the real world, and the other affects court world. Orders governing conduct in court world are not going to be considered injunctions. So consider this holding involving vexatious-litigant determinations a one-off.

What does an appeal look like after having done 2,000 of them? John Dodd is one of the few people with that vantage. A former staff attorney at the Court of Appeal who has volunteered on the juvenile-dependency panel along with his civil appeals practice, John explains how “an appeal is an appeal.” Once you have spotted some of the key differences among the various disciplines, it all comes down to the rudiments of appellate procedure and advocacy.

We also discuss:

🏠 Juvenile dependency appeals, and when “the overweening hand of the government” unnecessarily disrupts families.

🏛 How he won the Sanchez case (barring the expert-witness end-run around the hearsay rule for case-specific hearsay) and became one of the leading experts on Indian Child Welfare Act, now a hot issue among constitutional scholars.

🤵 Should you waive oral argument? It probably won’t make a difference but—what if it does?

CEB has published my article, “SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed.”

The article is about a recent appellate opinion, Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), that holds that an order on an anti-SLAPP fee motion is not appealable. But there are conflicting cases on this point, and the Ibbetson opinion, while trying to reconcile to disparate cases, potential added to the confusion.

The important takeways:

1. Don’t count on anti-SLAPP fee awards being independently appealable.

2. But don’t count out the possibility they might be appealable as collateral orders.

Trial judges issue tentative decisions, why don’t appellate justices? Justice Thompson draws from his positive experience as a trial judge enjoying improved oral arguments after issuing tentative decisions, and suggests that the Court of Appeal might enjoy the same improvement. But we might have to wait for a “changing of the guard” as younger justices take the bench before seeing a

Need to catch up on important cases you missed in 2022? This end-of-year episode has you covered. Listen or click through for the complete list. But our “Most Important Case for Money Litigators” was Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081), holding treble damages and attorney fees under section 496 may be supported in your next fraud, conversion, breach of fiduciary duty, or even breach of contract case. (Covered in Ep. 45.)

We’ve got dozens more.

Coming soon: Our top briefing and advocacy tips from 2022.

Many years ago, I kept a blog that ran a short series called “A Plague on Words,” in which I criticized certain expressions I thought confusing or unhelpful. My entry on the expression “yeoman’s work” became a top Google search result, and earned me a lot of hate mail. But 12 years later, I pretty much stand by what I wrote. I reproduce the entry here.

The tl;dr version is: Try finding the meaning of “yeoman’s work” by looking up the word “yeoman” and you’ll see a definition for a hard-working peasant farmer and a do-nothing ceremonial government minister. Based on that, how is someone otherwise unfamiliar with the expression to know whether the expression is a compliment or an insult?

Have you ever felt the frustration of getting a stipulation from opposing counsel, only for the court to reject it? Well, when it comes to a briefing extension, the Supreme Court just ordered the Court of Appeal to give the full 60-day stipulated extension, and vacated the appellate court’s 46-day extension.

In Aaronoff v. Olson, the Second District, Division Two, “exercises[d] its discretion under rule 8.68, California Rules of Court” to partially grant a 60-day request to file a reply brief. The court granted 46 days instead.

On the plaintiff’s original writ petition, the Supreme Court in Aaronoff v. Court of Appeal (Olson) issued an alternative writ directing Division Two “(i) to vacate its . . . order . . . and to issue a new order giving effect to the parties’ stipulated extension as filed . . . or (ii) in the alternative, to show cause before this court why it has not done so.”

The same day, the Court of Appeal changed the reply brief due date to December 16.

The Upshot

When the parties to an appeal stipulate to a briefing extension provided under California Rules of Court, rule 8.212, “[t]he reviewing court may not shorten a stipulated extension.”

Thanks to David Ettinger for reporting on this case. See his post for a more detailed legal analysis of extensions under rule 8.212.

Disclaimer: I joined an amici curiae brief filed with the Supreme Court on December 5, urging the Court to grant the requested relief.

Evidentiary rulings on MSJ are reviewed under the same deferential standard as given evidentiary rulings at trial—i.e., for abuse of discretion—but the Supreme Court cracked the door open on the possibility of de novo review in its 2010 Reid v. Google decision. Those hopeful for more the rigorous standard will be disappointed by a new recent published case.

We also discuss a recent case involving attachment orders in elder abuse suits. Namely, can you get an attachment in an elder abuse case? Maybe, but not based on statutory penalties, so the attachment order had to be reversed.

Isn’t it frustrating to find just the right case that supports your argument, only to notice that the case is unpublished? And lawyers are forbidden from citing to unpublished cases.

Don’t despair too much. Justice James Lambden (Ret.) notes that there are a number of published cases out there that lift the language or reasoning from unpublished cases. Remember that, in California, there is no horizontal stare decisis—which means the reasoning of unpublished cases has exactly as much binding authority on appellate courts as the reasoning of published cases. That is to say, neither published nor unpublished cases are binding on appellate courts.

So don’t fret: Make the best arguments available. If they’re supported by published authority, cite them. If not, don’t. If the arguments are any good, the appellate court will probably adopt them, even if there are no published cases on point. And if the arguments stink, the court will probably reject them, regardless of the citations to sister appellate courts.

And in arbitrations, the arbitrator can look at anything, says Justice Lambden, pointing to the Moncharsh v. Heily Blase decision. You can always find a way to get the reasoning into the case.

“The right answer,” Justice Lambden says, “is where you find it.”

Need to get attorney fees after winning your case? The deadline to file your motion is the same as the deadline to appeal, and here’s an example of the strange mysteries of the “triggering document” rules that trigger the 60-day deadline.

After a trust beneficiary won her first appeal, on remand in Karamooz v. Karamooz (D4d3 Nov. 14, 2022) no. G060515, 2022 WL 16918764 (nonpub. opn.) the probate court held a further hearing.

Then the court issued a couple of rulings that are the pieces of the puzzle of the 60-day deadline:

First, in June, the court issued a tentative decision.

Then in July, the court issued a modified statement of decision and order. The clerk served a filed-stamped copy of the modification.

Finally, in August, the respondent served a notice of entry of the tentative—but not the modification.

The appellant filed her fee motion in October—within 60 days after service of the notice of entry of the tentative, but more than 60 days after service of the file-stamped copy of the tentative.

So was the fee motion timely?

Held: The fee motion was timely. Whether the 60-day period started running from service the notice of entry of the tentative or the file-stamped copy of the modification is a trick question: neither one was complete in itself, and so neither was effective to trigger the 60-day deadline.

CEB has published my article, “Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds.”

The article is about a surprising recent appellate opinion, WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046, that allowed a Nevada judgment debtor to domesticate a judgment in California—even though the debtor had no contacts with California. And even more surprising, after the Nevada judgment expired, the court allowed the creditor to re-domesticate the judgment back to Nevada.

There are two reasons you should take strong notice of this case, particularly if other states follow this approach:

(1) Judgments accrue interest at different rates depending on state law, so consider domesticating all your judgments in a high-yield jurisdiction—the highest yields are in Massachusetts, Rhode Island, Vermont, and Washington, at 12%.

(2) Judgments lapse after a certain time depending on state law, so consider domesticating all your judgments in a “stay-fresh” jurisdiction—judgments in Delaware, for instance, never expire.

If you have a judgment against a debtor and you want to do some judgment collection in another state, is personal jurisdiction an obstacle? Do you have to show the debtor has minimum contacts with the other state? No, says a new published case. We’ll consider the possible effects of this — they are surprising.

On the perennial topic of deadlines for posttrial motions and appeals, we found yet another exception — if you file a DQ motion, that tolls the posttrial deadlines. Jurisdictional my left foot.

And finally, a new anti-SLAPP case with an expansive application of the litigation privilege.

Having a court reporter can be critically important to create an oral record for an appeal, but it is not always necessary. Anti-SLAPP motions, for example, involve questions of law which are reviewed de novo on appeal, so a reporter's transcript is not strictly necessary. But what about on an appeal of an order of anti-SLAPP fees? The answer given in Beck v. Yozura (D4d2 Nov. 7, 2022) No. B313689 (nonpub. opn.) is:

Yep, you need a reporter's transcript.

Even if it really seems kind of silly to require a reporter's transcript, like in Beck, where the defendant’s anti-SLAPP resulted in the dismissal of exactly zero causes of action. He just got one allegation stricken.

But that was enough for a $25,000 fee award, without any reductions for the partial success. The appellate court reasoned that, although the trial court’s order did indicate it considered reducing the award, there was no reporter's transcript, so maybe it considered it there.

Takeaways:

1. Bring a court reporter to all dispositive hearings, even if they involve only questions of law and no testimony. Always assume the Court of Appeal will reach for the fact of the lack of a reporter's transcript for an easy affirmance—even if the reporter's transcript pretty clearly could have added nothing to the analysis.

2. Remember to consider requesting a statement of decision before submitting on a motion for attorney fees.

We know that anti-SLAPP orders are appealable—it says so right in the anti-SLAPP statute. But what about orders on anti-SLAPP fees? Appealability of fee awards are not mentioned in the statute. So the courts have been all over the place, with some finding anti-SLAPP fee awards appealable, some finding them nonappealable, and some finding them appealable in some situations but not in others.

The latest entry in the milieux is Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), where the trial court granted an anti-SLAPP motion to a cross-complaint—but only partially, so the case was not dismissed—and then the aggrieved cross-complainant appealed the resulting fee award. The Court of Appeal held that the fee award was not an appealable order, and so dismissed the appeal.

The court’s reasoning is straight to the point: The anti-SLAPP statute, Code of Civil Procedure section 425.16, says that orders granting or denying anti-SLAPP motions are appealable, but the statute says nothing about the appealability of fee awards. Without statutory authority making an order appealable, that’s the end of the analysis: anti-SLAPP fee orders are not appealable.

This seems sensible. But there are problems. One problem is the fact that this same court held that a SLAPP fee award was appealable in Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265. Another problem is that an award of SLAPP fees is a collateral order for money, and thus appealable under the collateral-order doctrine. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751.) The court’s responses to these problems are, in my view, less than satisfying.

In one of those familiar scenarios where the costs make all the difference, the plaintiff in GI Excellence, Inc. v. Padda (D4d2 Nov. 7, 2022) No. E076843 (nonpub. opn.) won a modest $65,000 award after trial, but then sought over $755,000 in contractual attorney fees. When the trial court denied the fee motion in its entirety, the plaintiff appealed. (The record did not reflect the trial court’s for the denial.)

But in its Appellant's Opening Brief, the plaintiff failed to address all of the arguments in opposition to the fee motion.

Instead, the plaintiff-appellant addressed only one of the defendants’ arguments in its Appellant's Opening Brief, and then addressed others in its Appellant's Reply Brief. This was, the Court of Appeal held, “a day late and a dollar short.”

After amassing $100 million for his personal-injury clients, Gerry Spence Trial Lawyer’s College alumnus Kyle Schneberg started Bedsore Law, a national law firm protecting the rights of elders in nursing homes. Kyle sits down with California Appellate Law Podcast co-hosts Jeff Lewis and Tim Kowal to discuss:

• The different approaches taken by personal injury attorneys, from “billboard attorneys” to settlement mills to big-dollar jury trials, and in between.

• How has California’s MICRA cap on medical-injury cases affected victims’ ability to get justice?

• What is the Gerry Spence College like?

• Nursing-home injuries and the changing needs in that space.

CEB has published my article, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” originally published here: http://bit.ly/3gCdu6B

The article covers *Trujillo v. City of Los Angeles* (D2d1 Oct. 27, 2022 No. B314042) -- Cal.Rptr.3d -- (2022 WL 15119812), a case about accepting a Code of Civil Procedure section 998 offer of compromise. The court held the acceptance was not valid because, even though it was within the statutory 30 days, the acceptance came after the trial court had already granted summary judgment.

I note several odd things about the decision and the reasoning, including why the court drew the line at oral rulings on summary judgment, but would allow a plaintiff to accept a 998 offer after a tentative ruling.

And as covered on episode 61 of the California Appellate Law Podcast, cases interpreting FRCP 68, the federal analog to section 998, have come out the opposite way.

The new postjudgment opportunities suggested in the published case of WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046. The court holds that an out-of-state money judgment may be domesticated in California, even though California lacks personal jurisdiction over the defendant. There are two reasons you should take strong notice of this if other states follow this approach:

(1) Judgments accrue interest at different rates depending on state law, so you should domesticate all your judgments in a high-yield jurisdiction—the highest yields are in Massachusetts, Rhode Island, Vermont, and Washington, at 12%.

(2) Judgments lapse after a certain time depending on state law, so you should domesticate all your judgments in a “stay-fresh” jurisdiction (e.g., judgments never expire in Delaware).

Here is what happened in Jumpstart:

Nevada issued a $1.5 million judgment against loan guarantors. Lenders then got the judgment domesticated in California. The Nevada judgment expired in 2016. But the California judgment remained.

Nevada-based defendant Mynarcik had no contacts or assets in California. Jumpstart, the new assignee of the judgment, wanted to enforce the judgment against Mynarcik in Nevada, but the Nevada judgment had been expired for several years already. So Jumpstart decided to take the domesticated California judgment and domesticate it right back to Nevada. A little like standing in a bucket and pulling yourself up by the handle, but worth a shot.

Mynarcik raised a personal jurisdiction challenge to the California judgment. The Sacramento Superior Court agreed, but the Court of Appeal reversed, finding a court does not need personal jurisdiction to domesticate a sister-state judgment.

I am curious to know what the #AppellateLinkedIn community thinks about this one. Will other state courts follow this reasoning?

M.C. Sungaila has advocated at some of the highest levels of appellate law, and last year took her experience and her heart for mentoring and public interest work to the Portia Project podcast, where she distills the wisdom and experience of women judges, justices, and top attorneys in the nation.

M.C. sits down with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast to discuss some of the insights and recurring themes and advice she’s gleaned from having interviewed now over 100 of the most successful women in the legal profession today:

• The “watershed moment” in the 1980s when Sandra Day O’Connor became the first woman on the Supreme Court, opening the floodgates for women in law.

• The varied paths to the bench, taken by lawyers who never thought it possible.

• A law degree doesn’t just mean one thing, and success sometimes mean failing at your first try, second try, etc., until you find the right fit.

• The disconnect between lawyers and judges: Advocates are looking for an outcome, but appellate judges are looking for an opinion.

• Appellate judges look at oral argument as another part of their process in preparing to make their decision. Don’t look at oral argument as just an isolated 30-60 minutes—that’s not how the panel sees it.

Clemency requests in California must be approved by the Supreme Court, and they are not always approved. Denials of clemency requests, says David Ettinger, are “essentially court determinations that the clemency grants would have been abuses of gubernatorial powers.”

In one particular case back in 2019 concerning Joe Hernandez, a majority of the Supreme Court, without specifying a reason, declined to recommend the commutation.” Ettinger notes that then-Gov. Brown fumed, “Read the ones who were approved and read the ones who were disapproved and you tell me what the rule is.”

Gov. Newsom, on the other hand, has a nearly perfect record on his clemency recommendation requests. Why the change?

Of his former colleague, Justice William Bedsworth is quoted as saying: “Justice Thompson has a rare combination of a hard-headed, straight-ahead approach to the law and a big heart that never lets him lose sight of the impact his decisions have on real people.”
“Head-headed?” What did Justice Bedsworth mean by that? Justice Thompson joins Tim Kowal and Jeff Lewis on the California Appellate Law Podcastm to explain.

Cynics have suggested that the “jurisdictional” deadline to file an appeal “’is only as jurisdictional as [the courts] want it to be.’” The court recently acknowledged that this supposedly iron-clad rule is, in fact, riddled with exceptions.

Well, here is yet another exception: We already knew that, when a motion for new trial is filed, that extends the time to appeal to 30 days after the motion is denied. And we already knew that the trial court’s deadline to deny the motion is 75 days after service of the notice of entry of judgment. That’s all laid out clearly in California Rules of Court 8.108 and Code of Civil Procedure section 660, and these rules are treated as jurisdictional. But if a party files a motion to disqualify the trial judge before the judge denies the motion for new trial, that tolls the 75-day period.

That is what the Fourth District Court of Appeal held in Gearing v. Garfield Beach CVS, LLC (D4d3 Nov. 8, 2022 no. G060807) 2022 WL 16827538 (nonpub. opn.). After the trial court nonsuited the plaintiff’s case, the plaintiff moved for a new trial. But then three weeks later—before the court had had a chance to rule on the new-trial motion—the plaintiff moved to disqualify the trial judge.

Under the normal rule, the motion for new trial would have been deemed denied automatically after the 75th day. But at that time, the disqualification motion was still pending. So even though the plaintiff filed her appeal within 30 days after the exonerated trial judge denied the new-trial motion, the defendant argued this was too late.

Held: The appeal was not untimely. The DQ motion tolled the judge’s time to act.

If you read court cases for a living, you may have some that conclude, “while we are sympathetic to the appellant, this is a problem for the Legislature to resolve.” Which is usually sensible enough. But how does anyone know if the Legislature is reading these cases?

Justice Lambden wondered the same thing. So that’s why when he wrote one such opinion, he forwarded a copy of it to the Speaker of the Assembly. Not as advocacy, mind you, just as an FYI. After all, Justice Lambden explains, it is a function of the courts to educate.

He would even tap on the microphone as a trial court judge to punctuate the record, “hey, Court of Appeal, this is an interesting issue.” You’ll never get a holding on an important issue if no one ever brings it up on appeal!

When the Supreme Court applied lis pendens law inconsistent with the lis pendens statute, Justice Zebrowski wrote a letter that got the attention of the State Bar. That got him on a lis pendens “task force,” which in turn was responsible for convincing the Legislature to amend the lis pendens statutes.

On this episode of the California Appellate Law Podcast, Justice Zebrowski tells co-hosts Jeff and Tim about his work on the Law Revision Commission, and the BAJI Committee writing and amending civil jury instructions. But given the low-absorbency rate with jurors, is the practice of jury instructions at trial merely ceremonial? And what is the difference between BAJI and CACI?

Mediating or arbitrating a case? Justice Zebrowski also offers some advice from 23 years as a neutral.

When a nonagenarian’s new 35-years-junior wife started liquidated his assets, his daughter, Lisa Royals, intervened. In her resulting lawsuit of Royals v. Lu (D1d4 Jul. 18, 2022) 81 Cal.App.5th 328., not only did Royals allege almost $1.1 million in financial elder abuse, she also sought a writ of attachment for three times that amount—apparently based on statutory penalties and attorney fees. And despite the requirement that attachments be based on retrospective rather than prospective debts, the trial court issued a $3.4 million attachment order.

The First District Court of Appeal reversed. Royals’s pleadings and affidavit were “unclear what justified an attachment amount of more than three times the actual damages that Royals pleaded on information and belief.” And even after the appellate court’s request for supplemental briefing on that point, the court found “Royals’s elusiveness” to be “troubling.”

The court held that seeking damages based on penalties and punitive damages, or in “an open-ended way” to justify an inflated damages award, cannot satisfy the attachment statutes.

There was also an interesting procedural quirk when the trial court ordered the attachment vacated, purportedly rendering the appeal moot. That didn’t work: a trial court cannot vacate an order once it’s on appeal.

This course provides an overview of designating the record and preparing the Appendix or Excerpts of Record for federal appeals. Preparing the record is critically important to success on appeal, but is often overlooked by attorneys, who may come to their paralegals shortly before the briefing deadline. Both attorneys and paralegals should be aware that the process is time-intensive. Not only that, but now that the courts have entered the digital age, the courts require the Appendix or Excerpts of Record to conform to demanding technical specifications. This is a daunting undertaking by both the paralegal and the attorney, and paralegals can add tremendous value by understanding the process and encouraging their attorneys to plan ahead.

“CEB has published” Tim Kowal, “Something You Didn't Know About 998 Offers,” CEB (Apr. 30, 2021), available at  http://bit.ly/3AbqAhI Plaintiff can still recover post-offer fees even if Plaintiff does not […]

Attorneys are aware how important it is to confirm the precedential value of a recent published "smoking gun" decision on all fours with your case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it. The Supreme Court recently amended rule 8.1115. Fortunately, the amendment is arguably rather sensible. In short, while Supreme Court review is pending, you can still cite your smoking gun case, and the trial court may follow it, even if another appellate court disagrees with it. Less fortunate is that, if your smoking-gun case was taken up for review on an issue completely separate from your smoking-gun issue, the case loses precedential effect on your smoking-gun issue, too, as collateral damage.

When you have a legal emergency and you need the Court of Appeal to act right away, you need writ relief. But less than 10% of writ petitions are granted. So how do you get the court’s attention?

Justice David Thompson spent more time on his court’s writ panel over the last decade than anyone, and here is his advice:
You have to demonstrate why your case is writ-worthy in the first paragraph.

The first paragraph.

And the big thing you have to explain is: You are going to get a chance to appeal at the end of the case—why isn’t that enough? Why do you get to jump the line?

Also consider highlighting an interesting legal issue: some justices may be inclined to grant writ review to write on an issue they find interesting (though Justice Thompson does not endorse this school of thought).

CEB has published my article, “MSJ Evidence Rulings Are Discretionary, California Appellate Court Holds in Split of Authority,” about the recent published opinion in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145 holding that evidentiary rulings in connection with summary judgment are reviewed on appeal for abuse of discretion. The article is here: http://bit.ly/3g090pV

The opinion is interesting because ever since the Supreme Court’s holding in Reid v. Google, Inc. (2010) 50 Cal.4th 512, which applied de novo review, practitioners have watched carefully to see if a trend of more rigorous review of evidentiary rulings might emerge in the context of motions for summary judgment.

But most cases have not followed Reid’s opening. Doe v. Software one provides a nice summary of the cases since Reid.

I also offer a comment that the preferable approach would be to treat boilerplate objections as waived, rather than indulging the fiction the trial court actually considered them all.

In October 2022 the Court of Appeal issued its unpublished opinion in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145 (see here: http://bit.ly/3EkEmAQ ). On November 8, the court ordered the opinion be published: https://bit.ly/3WP2Dq0

Doe v. Software One holds that evidentiary rulings in deciding a motion for summary judgment are reviewed under the same deferential standard as given evidentiary rulings at trial—i.e., for abuse of discretion. The challengers urged the Supreme Court’s opinion in Reid v. Google, Inc. (2010) 50 Cal.4th 512 created the possibility for more favorable de novo review, and a couple appellate courts had followed that lead.

I filed the publication request. I noted that this split of authority was likely to come before the Supreme Court. And California Rules of Court rule 8.1115 prohibits litigants from citing to the nice summary of the split in Software One opinion unless the opinion were published. (This phenomenon was discussed on the California Appellate Law Podcast episode 22 with David Ettinger and Dean Bochner, at www.CALPodcast.com )

Unless there is a specific section of the Discovery Act authorizing it, an award of sanctions may not be imposed. So the $2.5 million in sanctions awarded for the City of Los Angeles’s “egregious” abuses in City of Los Angeles v. PricewaterhouseCoopers, LLC (D2d5 Oct. 20, 2022 No. B310118) ---- Cal.Rptr.3d ---- (2022 WL 12010415) was reversed. The city’s attorneys had colluded with a nominally adverse party in a separate class action in order to enrich the attorneys and orchestrate damages against PricewaterhouseCoopers, and successfully hid that fact for two-and-a-half years through discovery abuse.

Bad as this was, the sanctions for the egregious abuse could not stand. The statutes generally providing for sanctions, sections 2023.010 and 2023.030, are only a definitional and do not themselves authorize any sanctions.

But dissenting, Justice Grimes raised this devastating point: There is no specific provision of the Discovery Act that sanctions spoliation of evidence, either. So if sections 2023.010 and 2023.030 do not authorize sanctions, then the majority’s holding has rendered spoliation—and here, the city attorneys’ two-and-a-half-years-long campaign of “obstruction, obfuscation, and outright lies”— as mere wrongs without a remedy. Just another one of those bummer things about the practice of law that no one can do anything about.

Every attorney knows that to reverse an order, it’s not enough to prove error. You also have to prove the error harmed your client. But when the Court of Appeal in Trujillo v. City of Los Angeles reversed a sanctions order for the reason that the offending party was not given the full 21-day safe-harbor period (motion was filed a day early), the court did not explain why the one extra day would have mattered.

What’s going on here?

Jeff and Tim also discuss some other nuts-and-bolts cases that attorneys should bookmark:

• All defamation lawsuits involving the management of publicly-traded companies are not necessarily SLAPP-able as arising from a public issue. (Heffernan v. Bilzerian.)
• The 21-Day Safe Harbor Means 21 Days: Motion Filed Day 21 Is Too Early.
• Don’t Seek Default Without Notifying Opposing Counsel.
• Oral MSJ ruling cuts off ability to accept 998 offer. (Trujillo v. City of Los Angeles.)
• Forwarding email to hotel clerk to print destroys the privilege.
• Good recap on recent church-and-state showdowns: Covid-restrictions on churches are likely unconstitutional where secular establishments are exempted.

Even more than being buried alive, Justice Lambden says attorneys are terrified of missing an argument. This is why attorneys tend to indulge the temptation to be overinclusive in their arguments.

But making too many arguments comes at the cost of credibility. If the attorney is just “running the loop again,” the bench is more likely to tune out. “We always notice,” Justice Lambden recalled from his time on the Court of Appeal, when an attorney told the court which argument to focus on. You will show courage if you acknowledge a certain argument is not your strongest, and you will earn credibility when you pivot to the argument that is your strongest.

When Governor Gavin Newsom selected Justice Patricia Guerrero as the new Chief Justice, he also “appointed” Judge Kelli Evans to fill the empty seat. But there was some debate about […]

There are several odd things about Trujillo v. City of Los Angeles (D2d1 Oct. 27, 2022 No. B314042) -- Cal.Rptr.3d -- (2022 WL 15119812), a case about accepting a Code of Civil Procedure section 998 offer of compromise. The court held the acceptance was not valid because, even though it was within the statutory 30 days, the acceptance came after the trial court had already granted summary judgment.

The set-up is pretty simple: The City was defending against a claim that it negligently maintained a cracked sidewalk that caused Trujillo to trip during a late-night jog. The City filed a motion for summary judgment. Then just a few days before the hearing, the City served a section 998 offer.

At the hearing, the trial court orally granted the City’s motion for summary judgment. Four minutes later, Trujillo accepted the 998 offer, and then immediately filed the executed 998 offer.

The trial court rejected the 998 acceptance. And so did the Court of Appeal. The court held that “a still-pending 998 offer expires when a trial court orally grants summary judgment.”

I count several odd things:

1. You are supposed to get 30 days to accept a 998, but here, the court only would have given the plaintiff “a few days.”

2. The court reasoned that a 998 offer only stay in effect so long as there remains a “dispute to be resolved,” but that is not actually what the statute says.

3. What about tentative rulings? The opinion suggests a litigant may still accept a 998 offer after a tentative so long as it’s before the oral ruling.

4. Why didn’t the court accept the argument that an MSJ hearing is akin to the “commencement of trial,” and thus the 998 offer filed less than 10 days before that time was never valid in the first place?

If you were a lawyer drawing breath in summer 2022, you heard about the “victory bell” case. A prominent defense attorney, returning to base camp with a stunning victory after defensing a medical malpractice case, rang his firm’s victory bell and announced, the victim “was probably negligently killed, but we kind of made it look like other people did it.” The comment was captured on video, and the internet did its thing.

A common hot-take was that the video would undo the verdict. But many appellate attorneys scoffed: an attorney’s puff talk after trial, the cooler heads responded, is not a trial irregularity.

Enter Brooke Bove, who wrote the successful new-trial motion in Garcia v. Quraishi that got the judgment vacated. Brooke gives an insider look at trial, and why the defense attorneys reference to an empty chair particularly galled the trial judge.

Bove, an Army communications specialist before becoming an appellate attorney, shares her insights into the case and what is coming next, as well as top legal tips and strategies.

“Are you one of them liberal judges?” someone once asked Justice Lambden. Calling himself a “process judge,” Justice Lambden responded, “Well, if Congress passed a liberal law, I’d enforce it. If it passed a conservative law, then I’d enforce that.” Still, most judges want to get the “right result.”

What does this mean for litigators? Recognizing that most cases really should settle, courts are encouraging more collaborative processes to put cases in a settlement posture. Attorneys should recognize that litigation is an expedition, not a battle.

Justice David Thompson sets up the oral argument Catch-22:

If the argument wasn’t in your brief, why wasn’t it in your brief?!

If the argument was in your brief, then why are you repeating yourself?!

This is at the heart of what Justice Thompson calls the perennial question about giving an effective oral argument.

In this discussion about oral arguments on appeal, Justic
e Thompson provides the solution: Identify the crux of the case. Try to present it in a slightly different way, putting a slightly different spin, perhaps to disarm the panel.

And be ready to answer any questions.

But don’t regurgitate. And don’t come up with a brand new theory of the case.

CEB has published my article, “Don’t Seek Default Without Notifying Opposing Counsel,” available at https://bit.ly/3WjAZ4m .

The article summarizes a recent case, Shapell Socal Rental Properties, LLC v. Chico’s Fas, Inc. (D4d3 Oct. 17, 2022 no. G060411) ___ Cal.Rptr.3d ___, where the plaintiff’s attorney “calculated to keep [the defendant] in the dark” about a lawsuit in order to obtain a default judgment.

Attorneys have an ethical and a statutory duty to warn opposing counsel before requesting default. The Court of Appeal said the trial court’s failure to grant the motion to set aside the default was “inexplicable,” and on remand, disqualified the trial judge from hearing the case further.

Sometimes it is hard to pinpoint what actually caused a harm, like a medical injury. But we can use the process of elimination. An opthalmologist expert offered an opinion based on the process of elimination—differential etiology, in medical jargon. But the trial court excluded it, and then granted the defendant hospital’s motion for nonsuit.

That was an abuse of discretion, held the appellate court in Siemon v. Regents of the University of California (D1d1 Oct. 19, 2022 no. A160654) 2022 WL 12083207 (nonpub. opn.). Differential etiology—i.e., process of elimination—is a valid method of establishing proximate causation, so long as the jury finds it credible.

These close legal calls on expert evidence are often made during the trial, and the parties have to go through trial, judgment, postjugment motions, and appeals before knowing whether the key evidence in the case stays in or comes out.

Here, the trial court made the call before trial began, and the Court of Appeal weighed in on the call after a nonsuit. When the parties start trial again, the plaintiff will be armed with the Court of Appeal’s observation that the plaintiff’s evidence “would be sufficient to support a judgment in [her] favor.” That counts for something.

We attorneys are trained to spot patterns, but many of us are poor at spotting patterns of inefficiency in the way we practice. Ernie “The Attorney” Svenson joins this episode of the California Appellate Law Podcast to explain how lawyers can adopt “systems thinking” to make their practice more effective, efficient, and even more fun.

Ernie shares how he learned about efficiency from his judge during his clerkship who, to shave time off the “Oyez, Oyez, Oyez” ceremony, cut the last “Oyez.” And how his judge delegated the task of explaining to new clerks about the edited “Oyez.” Now THAT is systems thinking!

Too abstract? How about a taste? Here are Ernie’s “gateway drugs” to get you hooked on legal tech:

• SaneBox — Most lawyers use some filtering to reduce email load, but SaneBox has really advanced filters that will find you spending less time in your inbox.

• TextExpander — Everyone sends out routine emails (think: retainer agreements). TextExpander populates an complete email with a macro. (And it will getting your gears turning about other ways to automate your day-to-day.)

• Automated Calendaring (e.g., Acuity, Calendly) — No attorney should be booking their own appointments.

Listen to the episode here: https://lnkd.in/gTDweCDf

Please subscribe to the California Appellate Law Podcast in your favorite podcast player.

A trial court hit Calvary Chapel with over $30,000 in sanctions for violating court injunctions that required the church to comply with local Covid restrictions. The church steadfastly refused to enforce the state and local rules that imposed capacity limitations on indoor gatherings, and that required face masks and the submission of a social-distancing protocol. The court enjoined the church to follow the protocols, on pain of daily sanctions.

The church petitioned the Court of Appeal for review from the contempt orders. And in People v. Calvary Chapel San Jose (D6 Aug. 15, 2022 No. H048708) 82 Cal.App.5th 235, the Sixth District agreed with the church.

The Court of Appeal held that the capacity restriction could not satisfy strict scrutiny, because the restriction exempted secular activities like bus stations, airports, grocery stores, restaurants, office buildings, and retail stores. “We are mindful,” said the Sixth District, “that in Tandon, the Supreme Court stated that “at-home religious exercise” was comparable for purposes of the Free Exercise Clause to “hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants.” [Citation.]”

In fact, the prosecution did even not dispute that the capacity limitations could satisfy strict scrutiny review.

Takeaway:

If you are interested in how the U.S. Supreme Court has dealt with church challenges to Covid restrictions, the Sixth District Court of Appeal provides a good summary.

In short, the courts must be very suspicious where Covid restrictions are enforced as against churches but exempted as against secular establishments. The Constitution assumes that churches are treated as out-groups, and exemptions raise the specter of favorable treatment toward in-groups. This obliterates the Employment Division v. Smith rule that religions organizations are subject to generally-applicable rules, and restores the pre-Smith strict-scrutiny analysis.

should come to mind is a motion for sanctions. But the operative statute requires giving opposing counsel a 21-day warning first, known as a safe harbor.

How long is the 21-day safe harbor? There is now a published decision to tell us. The answer, according to Transcon Financial, Inc. v. Reid & Hellyer, APC (D4d2 Jul. 22, 2022 no. E076728) 81 Cal.App.5th 547, is that the 21-day safe harbor is no less than 21 days. A sanctions motion filed on the 21st day is too early. So the order granting that sanctions motion was reversed on appeal.

But I have a question about this.

The opinion contained no real analysis how the shortened safe harbor prejudiced the plaintiff or its attorney here. The purpose of the safe harbor is to provide a reasonable time for the offending party to reconsider its pleading. True, the plaintiff was deprived one day of that period. But there was no mention in the opinion that the plaintiff withdrew its pleading after the sanctions motion was filed. And a review of the docket indicates the offending complaint was not withdrawn. To the contrary, the defendants filed a demurrer to the complaint, and the plaintiffs opposed the demurrer.

So where is the prejudice? The court did not say that the safe-harbor provision is jurisdictional. The court also did not say that the error defies review for harmlessness. And there was pretty clearly no prejudice. So what is going on here?

If you have served a summons and complaint and the defendant has not answered, don’t get too excited. Attorneys have a duty—an ethical duty, and a statutory duty—to warn opposing counsel before requesting default.

But the plaintiff’s attorney in Shapell Socal Rental Properties, LLC v. Chico’s Fas, Inc. (D4d3 Oct. 17, 2022 no. G060411) ___ Cal.Rptr.3d ___ didn’t do that. Far from it. Instead, counsel “calculated to keep [the defendant] in the dark” to obtain a default judgment.

In a published opinion, the Court of Appeal reversed the order refusing to set aside the default judgment, and pointedly noted counsel’s ethical shortcomings in the trial court. The Court of Appeal said the trial court’s failure to grant the motion to set aside the default was “inexplicable,” and on remand, disqualified the trial judge from hearing the case further.

The court also was unhappy with appellate counsel for refusing to acknowledge the ethical shortcomings below.

Driving the dagger even deeper into the landlord, the court noted that the tenant may seek an award of restitution against the landlord. This could include restoring possession to the tenant-appellant, or awarding money damages.

So bookmark Shapell Socal and consider restitutionary remedies if you are an appellant.

Jeff and Tim discuss some recent cases to add to your attorney toolkit:

1. For personal injury attorneys, a recent civil-criminal crossover case dealing with victims’ right to restitution warns: the right to restitution is not waived unless the criminal case is over or the DA signs off.

2. Quashing a subpoena based on free speech gives a right to attorney fees. But caution: the court regarded the fees as purely mercenary in this case, and denied them.

3. No, Zoom trials are not a substitute for real trials — not unless the Legislature says so before July 1, 2023.

4. Beware dismissing appeals, because they’re almost always “with prejudice.”

5. How to lose your appeal by flubbing the Rule 8.108 appeal extensions.

We also discuss the Onion’s amicus brief in the US Supreme Court, and the California Supreme Court’s order declining to review whether bees are fish (but which the media interpreted as affirming that bees are, indeed, fish).

Can you get a reversal on appeal based on the trial court’s improper rulings on evidence? Ever since the Supreme Court’s holding in Reid v. Google, Inc. (2010) 50 Cal.4th 512, practitioners have watched carefully to see if a trend of more rigorous review of evidentiary rulings might emerge, at least in the context of motions for summary judgment. Reid applied de novo review—rather than abuse of discretion—to evidentiary objections made at summary judgment when the trial court failed to rule on them. (Id. at p. 535.) As the Supreme Court noted, it is hard to know if the trial court abused its discretion if it did not exercise any.

So supporters of more rigorous review have been disappointed that, despite Reid, every appellate district has published opinions distinguishing Reid and applying the abuse-of-discretion standard to evidentiary rulings. (There are only two published cases since Reid that have applied the de novo standard: Pipitone v. Williams (2016) 244 Cal.App.4th 1437, and Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206.)

And that is also what happened in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145 (nonpub. opn.), which distinguished Reid and applied the abuse-of-discretion standard to evidentiary rulings connected with a motion for summary judgment.

The Fourth District noted that “the weight of authority since Reid supports application of the abuse of discretion standard.” “The court specifically pointed to the volume of objections raised—nearly 100-pages worth: This quantity is not unusual for a motion for summary judgment: “We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections, without focusing on those that are critical.” (Reid, supra, 50 Cal.4th at p. 532.)”

Comment: The court’s analysis is valid, but one still has misgivings about treating hearsay objections as discretionary. The better approach, in my view, would be for the appellate courts to treat this issue as one of waiver. Code of Civil Procedure section 437c(b)(5) requires that evidentiary objections to be made at the hearing. So if the opposing party simply lets a ream of written objections stand without raising them at the hearing, then the objections should be treated not as overruled by operation of the trial court’s discretion, but as waived by operation of Reid and section 437c(b)(5).

There is an evergreen warning in Brilliant Digital Ent., Inc. v. PersonalWeb Tech., LLC (D2d4 Oct. 3, 2022 no. B317580) 2022 WL 4716637 (nonpub. opn.) that an incomplete appellate record can doom an otherwise righteous appeal.

And there is also a reminder of a more esoteric nature about a rule that allows unsecured creditors a right to mandatory intervention.

In short, a debtor colluded with plaintiff, a friendly creditor, to avoid paying a $5.4 million judgment it owed to Amazon. Amazon, an unsecured creditor, was denied intervention, but won on appeal on the basis of the collusion exception under Continental Vinyl Products Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543.

But Amazon almost lost this appeal by failing to provide a complete record. Amazon had raised the exception in the trial court by way of a supplemental brief. But on appeal, Amazon did not even include that supplemental brief in the record.

The court allowed Amazon to supplement the record with that brief, but at that point the court noticed that Amazon also had failed to include the underlying motion to intervene, as well as the reply brief and the complaint-in-intervention.

In the usual case, these record defects would have been fatal. Amazon should be very grateful of the court’s indulgence here.

Before Justice David Thompson left the bench in 2021 to become a private neutral, his colleague Justice Bedsworth called him “hard-headed.” And compassionate. But hard-headed? Justice Thompsons explains what Justice Bedsworth probably meant by that: “I say what I mean,” and tends to be direct—particularly at oral argument.

Justice Thompson discusses his more stringent judicial philosophy when it comes to publishing opinions, and granting writ relief. But he does favor tentative opinions and the use of focus letters to make for more effective oral argument.

Justice Thompson also provides some hard-nosed advice to lawyers:

• On writ petitions: If you don’t convince the panel in the first paragraph, you’ve lost. (But some justices might be more lenient.)

• On briefing: Get the basics right. Follow the Rules of Court. Explain how the trial court’s error resulted in prejudice. Acknowledge the flaws in your argument. And above all, be true to the record.

• On using “signposts” in briefing: Transitions between sentences, paragraphs, and thoughts are the way good writers hold their reader’s hand through your brief. And “moreover” is a substandard signpost.

• On doomed appellate strategies: Rearguing the same theory that lost at trial.

• On settling on appeal: If the case hinges on a key legal issue, a neutral with experience on the appellate bench may soften a hard position and help bridge a previously insurmountable gap.

• On oral argument: Never waive. At least show up and offer to answer questions.

In one of the many lawsuits by hip-replacement patients against Zimmer, Inc., the maker of the Durom Cup, a court of appeal recently held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. See Kline v. Zimmer, Inc. (May 26, 2022, B302544) __Cal.App.5th__, 2022 Cal.App.Lexis 460. This is surprising because, normally, trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic reversal.

Civil trial attorneys have an industry secret. Say you are suing over an unpaid loan. If the borrower never intended to pay back the loan, that’s not only a breach of contract, it’s a form of theft by false pretenses. And under Penal Code section 496, civil theft is punishable by treble damages and attorney fees. For those in on the secret, section 496 is a powerful tool in a business lawyer’s toolkit.

Caution: A Dismissed Appeal Is with Prejudice…unless the appeal is dismissed because it was premature.

If you remember one thing from this post, remember this: When an appeal is dismissed—even if dismissed voluntarily—usually that dismissal is with prejudice.

That is because of a statute, Code of Civil Procedure section 913. If you want the dismissal to be without prejudice, then the dismissal order has to expressly state “without prejudice.”

The order dismissing an earlier appeal of a pretrial sanctions order in Bush v. Cardinale (Sep. 27, 2022) No. A158757 (nonpub. opn.) did not expressly state “without prejudice.” So when the appellant appealed the sanctions order again—this time after a final judgment—the respondent pounced. The respondent filed a motion to dismiss the appeal. And the respondent cited section 913, arguing the prior dismissal of the appeal was with prejudice.

But for every rule, an exception. Here, the prior appeal was from a nonappealable order—i.e., from a sanctions order of under $5,000. That meant the Court of Appeal never had jurisdiction over the prior order, and thus could never have affirmed, which in turn meant that the dismissal could not have been prejudicial.

So the motion to dismiss was denied. But on the merits, the sanctions order was affirmed anyway.

Comment/Question for Appellate Attorneys: But what if the prior sanctions order—against the attorney, not the party—had been deemed appealable as a collateral order?

Earlier this year, the almost $25,000 in sanctions turned heads in Clarity Co. Consulting, LLC v. Gabriel (D2d6 Apr. 12, 2022) 77 Cal.App.5th 454. (Jeff Lewis and I covered Clarity in episode 31 of the California Appellate Law Podcast.)

But there are two important lessons about anti-SLAPP motions in the case, involving a garden-variety contract complaint for failing to pay a service agreement. They are worth bookmarking, as they still come up too often in anti-SLAPP motions:

1. Just because there is litigation-related activity alleged in the complaint, that does not necessary make the complaint a SLAPP. It is only a SLAPP if the activity is the “principal thrust or gravamen” of the cause of action. Yes, you already knew that. And that is what Clarity held: everbody knows that, so if you don’t know it by now and file an anti-SLAPP motion based on incidental litigation activity, get ready to get sanctioned.

2. Just because there is speech alleged in the complaint does not mean it is subject to the SLAPP statute. The speech has to be relate to a public issue or issue of public interest. (That is why there are two “Ps” in the acronym.) Yes, you already knew that, too. But that is Clarity’s point: everybody knows that, so if you insist on filing an anti-SLAPP motion based on private speech, get ready to get sanctioned.

Finally, the Clarity court offers this PSA on behalf of appellate attorneys everywhere:

“[T]rial attorneys who prosecute their own appeals … may have ‘tunnel vision.’ Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice." (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450, 77 Cal.Rptr.2d 463.)”

The California Supreme Court is getting a new chief justice. What does it mean? The author of prominent legal blog At the Lectern, David Ettinger, joins Jeff Lewis and me to look back on Chief Justice Tani Cantil-Sakauye’s 11-year tenure, her legacy, her replacement, Justice Patricia Guerrero—and why is the governor “appointing” a new Supreme Court justice when the state constitution says he needs to “nominate”?

David’s critical coverage of Gov. Newsom’s decision to “appoint” rather than “nominate” drew a phone call from the governor’s office, which he discusses.

We also discuss:

• “Taking one for the team”: how the CJ described her decision to write some of the Court’s more controversial opinions.

• “We don’t need to speak so broadly”: how the CJ described her approach to writing judicial opinions.

• When Gov. Jerry Brown got frustrated with the Supreme Court. Today, the Court grants all of Gov. Newsom’s clemency requests, but it denied many of Gov. Brown’s. Why? Turns out, governors get just as frustrated at summary denials as the rest of us do: “Read the ones who were approved and read the ones who were disapproved,” Gov. Brown challenged, “and you tell me what the rule is.”

In a bizarre ruling earlier this year, the Court of Appeal held that bumble bees are fish, at least for purposes of the California Endangered Species Act. The California Supreme Court was asked to review the result, and the Supreme Court denied review.

But the Supreme Court does not want you to think that that means it agrees that bees are fish. Or vice versa. The Chief Justice specially concurred in the denial of review to explain that denials of review are perfectly enigmatic: it could mean the Court thinks the result was bosh, or that it was brilliant, or that it has no opinion whatsoever.

So don’t read anything in to it.

Lawyers and judges have, by now in late 2022, gotten quite comfortable using remote trial to conduct legal proceedings. Depositions, mediations, arbitrations, even whole trials may be conducted via Zoom.

But Zoom trials are not the new normal. Not until the Legislature says otherwise, anyway. That’s what the Court of Appeal held in Rycz v. Superior Court (D1d5 Jul. 28, 2022) 81 Cal.App.5th 824.

Yes, the Legislature enacted a statute for remote proceedings. But that statute is only temporary, scheduled to sunset on July 1, 2023. After that point, trial judges and litigants are not to assume remote testimony will remain a valid substitute for live testimony.

And even if the statute gets extended, the court now holds that “blanket” orders of remote proceedings are in proper. Instead, each proceeding must get an individualized analysis.

What happens when the court fails to make required findings? Probably not, because the California Supreme Court says you still have to demonstrate prejudice. But in this episode of the California Appellate Law Podcast, Jeff Lewis and Tim Kowal talk about how, in certain kinds of cases, the prejudice analysis may give a very light touch, and so your chances of reversal are much higher.

Some recent cases suggest the courts may be pointing in different directions in appeals involving missing findings.

Jeff and Tim also cover some other recent cases that you may want to have in your toolkit:
• Untimely Appeals May Be Excused If There Was a Mishap with E-Filing, held Garg v. Garg.

• A Dismissed Appeal Is Not “On the Merits” If the Dismissal Was for Mootness, held Parkford Owners for a Better Community v. Windeshausen.

• Does the Memo of Costs form have a fatal error by omitting the “penalty of perjury” language? Yes, says a dissenting justice in Srabian v. Triangle Truck Center.

So you are going to take an appeal, but you are going to take a run at a motion for new trial first? Here is another case that demonstrates how many things can go wrong when relying on posttrial motions to extend the time to appeal.

The first lesson is: Your new trial motion has to be “valid.” Here, failing to file supporting papers arguably made the motion invalid. (Even though the text of the rule doesn’t really support this read, who is going to argue that you shouldn’t have to support your motion?)

The second lesson is: If a challenge to timeliness is raised, be sure to argue your right to an extension under California Rules of Court rule 8.108. The appellant here failed to raise it in her brief, so it was deemed forfeited. (But in this, the court was wrong: you cannot forfeit jurisdictional arguments.)

The third lesson is: If the trial court takes your motion off calendar, you should probably assume it is denied. (This too, seems wrong to me. The rule 8.108 extension begins running from service of the order “denying” the motion, not from when you should “assume” it’s denied.)

You know that the deadline to appeal may be extended if you file a posttrial motion. But beware: the extension does not apply if your posttrial motion turns out to be “invalid.” That very nearly happened in Arega v. Bay Area Rapid Transit Dist. (D1d3 Sep. 14, 2022 no. A163266) -- Cal.Rptr.3d --- (2022 WL 4232631) after the filed a motion to vacate under Code of Civil Procedure section 473(b) on grounds of inadvertence, surprise, mistake, or excusable neglect.

Fortunately for the appellants, the Court of Appeal held that a section 473 motion to vacate is still “valid” to extend the time to appeal, so long as it is filed within section 473’s outer six-month deadline. And that is the case even if the trial court denies the section 473 motion for not being filed sooner.

Comment: Posttrial procedure gets confusing, and dangerous. If this were a motion for new trial, my advice would be: file the appeal now. That is because you get the best of both worlds: you have safely preserved your right to appeal, and because the motion for new trial is a collateral proceeding, the trial court may hear and decide it despite the pending appeal. Win-win.

But the same is not necessarily true with all posttrial motions. On JNOV motions, there is a split of authority. And motions to vacate cannot be heard when an appeal is pending.

So it is very important to carefully and timely prepare and file posttrial motions if you are relying on them to extend the time to appeal.

As a consensus-maker, Justice James Lambden never published a dissent in his 17 years on the Court of Appeal for the First District, despite sitting between two indomitable personalities in Justice J. Anthony Kline (Gov. Jerry Brown’s legal affairs secretary) and Justice Paul Hearle (Gov. Ronald Reagan’s appointments secretary). Justice Lambden explains why attorneys should direct their briefs to the justice “in the catbird seat,” and what it was like sitting in the catbird seat.

Justice Lambden also talks about his single unpublished dissent.

Justice Lambden also talks about his time as a judge on the Alameda County Superior Court, the great outdoors, finding and wearing a good hat, and what it’s like for judges to transition to private judging: “Going back out among the bar without wearing the robe is kind of intimidating. Like they say, they don’t laugh at my jokes anymore.”

Justice Lambden serves up a lot of sage advice:

• “Litigation is not like preparing for a battle, it’s more like going on an expedition … like taking a trip across the mountains and encountering different places where you have to do different things.”

• Hire your appellate attorney before the verdict!

• Have an elevator-pitch for your case. If you only have arguments but no theme, you’re not ready.

• On unpublished opinions: Who cares? The California Court of Appeal is not bound even by published decisions, as there is no horizontal stare decisis in our system. If you find good reasoning, use it: if the good argument comes from a published case, make the argument, and cite it. If the good argument comes from an unpublished case, make the argument, but don’t cite it. In either event, it’s not the best citation but the best argument that wins. (This reminds me of Johannes Scotus: “Authority sometimes proceeds from reason, but reason never from authority….We should not allege the opinions of the holy Fathers ... unless it be necessary thereby to strengthen arguments in the eyes of men who, unskillful in reasoning, yield rather to authority than to reason.”)

• On the importance of focus letters and oral argument.

• On access to justice, quoting Chief Justice Ronald George: “Without access, there is no justice.”

Just for fun, here is one of my favorite Norm McDonald jokes (RIP).

Most findings in family court are left to the judge’s discretion. But not a custody order—at least, not once the judge has found that the parent has engaged in domestic violence. Even though the father’s only “domestic violence” was ringing up the mother’s employer, the court in Hutchins v. Hutchins (D4d1 Sept. 13, 2022 no. D078855) 2022 WL 4138735 (nonpub. opn.) held that the 50/50 custody order could not stand, because the family court failed to make written findings on the seven statutory factors. (Fam. Code, § 3044(b)(2).)

Here, the family court acknowledged the presumption, and concluded that it was “rebutted.” But this was not enough. The trial court must undertake two steps before concluding that the presumption of section 3044 has been overcome.

And the failure to make the findings was prejudicial error. But the court’s analysis on this point is underwhelming. And it seems to run afoul of the Supreme Court’s F.P. v. Monier holding from 2017 that missing findings are not structural error, and real prejudice has to be shown. On the record here, it appears the father easily could have rebutted all of the section 3044 factors.

On remand, I suspect the family court will simply make the missing findings to support to same 50/50 custody result.

You really ought to follow a court’s pre-trial order, but say you overlook something, like a witness list. The judge came down hard on the forgetful plaintiff in Harber v. Williams (D4d2 Sept. 12, 2022 No. E077036) ___ Cal.Rptr.3d ___, 2022 WL 4129702. Harber didn’t have any witnesses other than herself, but the judge prevented her from testifying, which had the effect of a terminating sanction.

Fortunately for Harbert, the Court of Appeal reversed. In a partially published opinion, the court rejected the Harber’s “maximalist” view that a trial court could never deny a party’s right to present evidence and testify. But the court nonetheless concluded that, here, the trial court had abused its discretion.

The most interesting of the factors the court identified was the fact that the pre-trial order indicated a “one size fits all” sanction when it stated that “you will not be permitted to call any witnesses not included in the witness statement.” “In other words,” the court went on, “the trial court announced, up front, that it would not exercise any discretion. The inherent power to dismiss, however, is a discretionary power. “A trial court's failure to exercise discretion is itself an abuse of discretion. [Citation.]””

“Something is very wrong with this picture.” This is how the Court of Appeal recently concluded a CEQA case—with finger pointed in CEQA’s direction. Peter Prows, an environmental attorney who handles a lot of CEQA cases, runs down the good, the bad, and the ugly of CEQA. Peter talks with co-hosts Tim Kowal and Jeff Lewis about Tiburon Open Space Comm. v. Cnty. of Marin (May 12, 2022, A159860), which rejected a neighborhood group’s efforts to stymie a development project.

Only law nerds are interested in CEQA? Think again: Former Rolling Stone writer Matt Taibbi recently penned an article about how CEQA is thwarting California’s ability to provide housing. We discuss that, too.

Peter also supplies Tim’s personal favorite new quote, via Justice Brennan: “See how easy it is to be a City Attorney?… If all else fails, merely amend the regulation and start over again.” (San Diego Gas & Elec. Co. v. City of San Diego (1981) 450 U.S. 621, 655 n.22 (Brennan, J., dissenting).)

Also: The government gets anti-SLAPP protection for free speech? (See Vargas v. City of Salinas (2009) 46 Cal.4th 1.) Come on, SCOCA.

Finally, on the Lightning Round: A persuasive case for two spaces after a period?

One of the challenges for us appellate attorneys arguing posttrial motions is that the trial judge tends to look upon us as johnny-come-latelies. “That’s how things look to you reading the dry transcripts, Mr. Kowal, but you weren’t here when it happened.”

That may be so. But there is someone else who wasn’t there, Three someone elses, in fact: the jurists on the appellate panel. All they will have is the same dry transcript that I have.

While appellate courts tend to defer to a trial judge’s sense of the case, this tends to run up against the great appellate maxim of “record cites or it didn’t happen.” Just saying “you had to be there” doesn’t quite cut it.

So you think a timely notice of appeal is an absolute jurisdictional prerequisite? Though the description of the rule may be a slight overstatement, it is the official line, and as the published opinion in Garg v. Garg (D4d3 Sept. 7, 2022 No. G061500) --- Cal.Rptr.3d ---- 2022 WL 4092828 confirms, the exceptions are few and, as here, difficult to establish.

But there definitely are exceptions to the “jurisdictional” rule that a timely appeal is an absolute prerequisite. The exception at issue in Garg relates to problems with electronic filing. Here is the holding:

If you attempt to timely e-file a notice of appeal, but something goes wrong, all is not lost. Here is what you do:

(1) File the notice of appeal “as soon thereafter as practicable” (in the Superior Court), and at the same time;

(2) File a motion in the Court of Appeal explaining what happened and showing good cause why the notice of appeal should be deemed filed as of the date of your timely attempt. (Rules of Ct., rule 8.77(d).)

But you must do these things immediately. The appellant in Garg waited 29 days, and that was too long. The Court of Appeal held that the appellant showed good cause for the technical foul up (the legal assistant had transmitted the notice of appeal to the e-filing vendor, but for reasons unknown, the vendor did not get it filed). But the court concluded that the appellant did not detect the error and seek relief “as soon thereafter as practicable.”

The California Supreme Court will review a surprising appellate court holding from earlier this year that held that a defendant did not waive the right to arbitrate, even though the defendant had answered the complaint, served multiple sets of discovery, took the employee-plaintiff’s deposition, and otherwise happily litigated for 13 months before finally moving to compel arbitration.

The majority in Quach v. Calif. Commerce Club, Inc. (D2d1 Apr. 14, 2022 no. B310458) 78 Cal.App.5th 470 found that these facts, as a matter of law, do not waive arbitration. The court noted that the California Supreme Court in Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1203, had held that mere participation in litigation, and merely driving up court costs and expenses, are not enough to establish waiver of the right to arbitrate.

The dissent would have found a waiver because “all benefits of a speedy resolution [Quach] could have obtained through arbitration [have] been lost.”

David Ettinger notes that the opinion was filed less than two weeks before the U.S. Supreme Court held prejudice to the other side is not essential to finding an arbitration waiver in federal courts. (Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708.)

Blog Note: The Quach opinion was originally unpublished until I filed an amicus request for publication.

What does the U.S. Supreme Court’s holding in Viking River Cruises, Inc. v. Moriana mean for PAGA claims against employers in California? Employment attorney Eric Kingsley explains how, under Viking River, **employees now may be forced to waive their PAGA claims on a representative basis and arbitrate them individually instead.

But the effect of Viking River may be short-lived. Eric notes that the California Supreme Court may be taking the cue in Justice Sotomayor’s concurrence in granting review in another PAGA case in Adolph v. Uber Technologies, Inc.

Eric also shares his experiences litigating in the California Supreme Court, some other interesting employment cases, and the Dr. Sally Ride Memorial Highway.

Legal writing and editing nerds, you may have opinions on this. Benjamin Shatz sounds off on whether the Blue Book or the Yellow Book is the superior form of legal citation. Ben’s […]

If you are setting out on a federal appeal, you will need to prepare the record. To help attorneys and paralegals in this task, you can read my article, “Preparing the Appendix in Federal Appeals,” in the latest issue of Facts & Findings, published by NALA.

Ever had an appeal dismissed? It hurts. But there may be a silver lining: the underlying judgment may no longer have any preclusive value. That’s what happened in the published opinion in Parkford Owners for a Better Community v. Windeshausen (D3 Jul. 14, 2022 No. C094419) 81 Cal.App.5th 216.

In that case, a neighborhood group challenged the expansion of a storage facility on CEQA grounds. The trial court rejected the challenge, and the neighborhood group appealed. But pending the appeal, the expansion project went forward, rendering the appeal moot, leading the Court of Appeal to dismiss.

So then the neighborhood group challenged the issuance of a business license to the storage facility, this time on zoning grounds.

The storage company filed a motion for judgment on the pleadings on res judicata and preclusion grounds, arguing the issues in the new lawsuit were encompassed in the final judgment. The trial court granted the motion.

But the Court of Appeal reversed. Res judicata and claim preclusion require a final judgment. But here, the prior judgment, though challenged on appeal, was dismissed on mootness grounds. A dismissal solely on mootness grounds does not result in a final judgment “on the merits” as required to apply the doctrine of res judicata or preclusion.

Comment: I am not sure about this holding. When the trial court entered the judgment here, it had preclusive effect. Had the appellant not appealed, it would have retained its preclusive effect. But the court held that merely taking a notice of appeal, but then failing to get a decision before the corpus of the appeal was destroyed (thus rendering the appeal moot), had the result of eliminating the preclusive effect of the judgment. So the appellant gets a free do-over.

Could an appellant get the same result via a dismissal on other technical or procedural grounds other than mootness? What if the appellant files the notice of appeal, but then fails to pay the filing fee? Or fails to designate the record?

I find this outcome so confusing that I wonder that I may be missing something.

Justice Laurie Zelon spent 19 years on the Court of Appeal for the Second District before retiring in 2020 to work on cases as a mediator, arbitrator, and private judge. Justice Zelon talks with Tim Kowal and Jeff Lewis about:

• her commitment to serving the community, and why we can’t throw up our hands because our problems are hard;
• the difference between “litigation attorneys” and “trial attorneys”;
• the difference between trial-court judging and appellate-court judging (you get time to “put your feet on your desk” and think about the case);
• the decline of civility (not good for the system, the attorneys, or the clients);
• using a neutral to evaluate your appeal or writ petition;
• the secret to a successful writ petition (show why it matters, and why it can’t wait);
• why remote oral arguments are not as good as in-person.

Should appellate courts mediate disputes? Appellate specialist and mediator John Derrick says that the court’s mission is to “weave the tapestry of the common law,” and you do that by deciding cases, not by settling them. After all, you don’t see the Supreme Court trying to get cases to settle, now do you?

After being sued, you have to answer the complaint. That part is obvious. But what about a cross-complaint? If you have cross-claims against the plaintiff, and you don’t assert them right away, can they become time-barred?

Until now, this was a concern. But the recent published opinion in Paredes v. Credit Consulting Servs. (D6 Aug. 8, 2022 No. H048092) holds that the filing of a complaint tolls the statute of limitations for all cross-claims. And the rule applies regardless whether the cross-claim is compulsory or merely permissive.

When assessing options after being served with a complaint, if cross-claims exist, asserting them early is usually a good strategy. But if for whatever reason a cross-claim is not asserted immediately, Paredes provides some assurance that the delay may not result in that claim becoming time-barred.

One of the first pieces of advice an appellate attorney will give a trial attorney is: Don’t forget to request a statement of decision. But this advice puzzles experienced trial attorneys, who know that the trial judge, after a bench trial, is already required—without request—to give tentative decisions. And a statement of decision is usually just a copy-and-paste job of the tentative. So what, then, is the big deal?

The appellant in Marriage of Burger (D4d3 Aug. 18, 2022 No. G060313) 2022 WL 3500197 could tell you. Even though the trial judge had issued a written decision, the appellant lost her appeal because she failed to request a statement of decision.

Nancy Burger was seeking an increased support award from her ex-husband, Robert. Nancy argued that Robert should contribute more money to meet her marital standard of living. Nancy also sought her attorney fees. The trial judge ultimately denied her request, including for attorney fees.

Nancy argued that the trial court failed to consider her request for attorney fees and costs. She pointed out that the trial court's written ruling contained no express analysis of the factors governing need-based attorney fee awards, as required under section 2030.

Unfortunately for Nancy, however, her statutory right to findings was not enough. Robert pointed out that Nancy had failed to request a statement of decision. Absent a statement of decision, the reviewing court will infer any factual findings supported by substantial evidence that are necessary to the result. (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)

Had the abuse-of-discretion standard applied, reversal would have been required. Instead, the Court of Appeal presumed the trial court did consider the factors, even though it made no findings on them. Affirmed.

Note that this result is contrary to Abdelqader v. Abraham (2022) 76 Cal.App.5th 186. Dealing with a similar statute that requires written findings be made (to rebut a presumption of domestic violence under Family Code § 3044).

The same result should have obtained here. Just as with section 3044 at issue in Abdelqader, section 2030 requires that the trial court “shall make findings” on various factors. And just as in Abdelqader, the court here failed to make the required findings. A request for a statement of decision is not required where the statute independently requires findings be made.

But the Burger court did not discuss Abdelqader. There appears to be a split on this issue within the Fourth District.

Three recent cases remind litigants of some important tips when opposing anti-SLAPP motions:

1. Spending money on litigation is not protected activity if the case is really about the misappropriation of the money. That’s Manlin v. Milner (D2d1 Aug. 10, 2022 Nos. B313253, B315077) 2022 WL 3223817 (nonpub. opn.).

2. Appealing an anti-SLAPP dismissal and attorney-fees award against your client? Cite Quiles v. Parent for its holding that SLAPP fee awards are automatically stayed on appeal. Is the trial court refusing to honor the stay? You can seek a writ of supersedeas in the Court of Appeal, but if you want a reasoned opinion, you need direct review. For that, you’ll need to label your motion to enforce the stay as one for injunctive relief.

3. Opposing an anti-SLAPP motion filed outside the 60-day window? Reyes v. Escobar (D2d7 Aug. 12, 2022 No. B313575) 2022 WL 3334384 held that extending the time to file without considering the length of the delay, the reasons offered for the delay, and potential prejudice to the plaintiff, is an abuse of discretion.

Also: What questions do you want to hear appellate justices answer? The podcast will be hosting some retired appellate justices in future episodes, and we want to put to them the questions you’ve been itching to have answered. Email Tim at tkowal@tvalaw.com.

Just won a lawsuit? Before you file your memo of costs, read the dissent in Srabian v. Triangle Truck Center (D5 Aug. 12, 2022 No. F080066) (nonpub. opn.). The upshot: A memo of costs needs to be signed under penalty of perjury. It is an evidentiary showing, after all.

In this, the Judicial Council form MC-010 for the memo of costs has been letting us all down. The memo of costs is required to be “verified,” and that means signed under penalty of perjury. But the form doesn’t have that language. So if you use it, expect your opponent may deploy Justice Kathleen Meehan’s sound reasoning in her dissent.

Justice Meehan noted that the Judicial Council did get it right in its form for costs after appeal. Form APP-013 includes a penalty-of-perjury recital.

Justice Meehan underscores the importance of the penalty-of-perjury requirement by referencing the fact that the memo of costs here contained a number of obvious inaccuracies, and yet the trial court awarded the exact amount stated on the memo. Thus, the defect did prejudice the appellant: “[T]his is exactly why the sworn nature of the cost memorandum is important—it reminds all claimants and their attorneys of the need for accuracy and the grave responsibility they have with respect to the truth and correctness of the costs being sought.”

Every attorney who loses a case feels the sting of defeat. But the losses you never forget are the ones you really deserved to win.

I share two experiences where trial judges were not following the law. The first judge indicated he was going to rule based on “cultural considerations” favoring a family patriarch. But to that judge’s credit, eventually he abandoned that view.

The second judge thumbed his nose at Supreme Court precedent. The Conservatorship of McQueen case, concerning judgment-enforcement, holds that the plaintiff’s right to claim enforcement fees is terminated the moment a judgment is paid in full. Despite a dramatic showing of full payment of a judgment (using an armored car and guard), the judge declined to follow binding precedent. Not all judges have the same fidelity to law and precedent. That is why the right to appeal is so important.

There is a high frustration quotient in defending against judgment enforcement. There is supposed to be an automatic stay of orders on appeal, but in practice this is wishful thinking. So you may have to do what the aggrieved party did in Merritt v. Specialized Loan Servicing, LLC (D6 Aug. 11, 2022 No. H048463) 2022 WL 3274131: file a motion to enforce the stay.

Only, don’t call it a “motion to enforce a stay.” As the Merritt court noted, an order denying enforcement of an automatic stay is not listed as among the appealable orders in Code of Civil Procedure section 904.1. Instead, file it as an application for a temporary restraining order or a preliminary injunction. It’s the same thing, and denials are appealable under section 904.1.

So you won a huge court case? Big deal — can you collect? Judgment enforcement, and defense against judgment enforcement, are critically important to litigants. But enforcement sits in that twilight region in between the trial and the appeal, so most trial and appellate attorneys do not know a lot about it. But Joseph Chora, Esq. Chora does. Judgment enforcement is all he does.

We ask Joseph to share some of his best enforcement tips (a teaser: don’t file fraudulent-transfer actions; file a lien instead—it’s faster, cheaper, and it flips the burden of proof). And some of the biggest pitfalls (e.g., failing to make an enforcement plan early).

We also discuss:

• How to cut off the plaintiff’s right to judgment-enforcement fees — and if you’re the plaintiff, how to avoid this
• Increasing an appellate bond
• Enforce judgments against a trustee
• Pursuing alter egos
• Using evasions of judgment enforcement to get an appeal dismissed under the disentitlement doctrine
• How plaintiffs should safeguard against restitution awards if a satisfied judgment is reversed on appeal

[Blog note: After this firm, joined by Jeff Lewis Law, filed a request for publication, on September 7, 2022 the court granted publication. The opinion is now published. ]

Put on your anti-SLAPP issue-spotting glasses and see if you spot the issue in this fact pattern: Plaintiff sues his business partner for taking money from the partnership. But the plaintiff also alleges that the partner used the money to pay his lawyers on litigation.

Probably your ears perked up at the mention of “litigation.” And that’s what got the defendant’s attention in Manlin v. Milner (D2d1 Aug. 10, 2022 Nos. B313253, B315077) 2022 WL 3223817 (nonpub. opn.). But he was wrong: merely spending money on litigation does not transform the misappropriation of the money into protected conduct.

The opinion is unpublished, but the court should publish it. Defendants continue to raise Rusheen v. Cohen in anti-SLAPP motions in an effort to escape misappropriation claims so long as some of the misappropriated money was spent on lawyers.

I saw almost the exact same scenario as Manlin in another case of mine a few years ago. The Court of Appeal came to the conclusion that taking money does not become protected just because it was spent on lawyers — just like Manlin. And it issued that holding in an unpublished opinion — just like Manlin. And so anti-SLAPPers are free to try again.

Until we get this holding nice and crystal clear in a published opinion, we are going to continue seeing repeat performances.

Senior Judge Clifford Wallace of the 9th Circuit has said, speaking of appellate court mediation programs, that “we ha[ve] a way to get people to talk.” Appellate mediator John Derrick talks with Tim Kowal and Jeff Lewis about the effectiveness of appellate court mediation programs — and about one unusual way a judge might get parties to talk.

CEB has republished my article, “Supreme Court Affirms the Use of Powerful Civil-Theft Remedies Under Penal Code 496 in Business-Tort Cases,” about the recent decision in Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081) 2022 WL 2840312.

Siry held that the remedies under Penal Code section 496(c) — treble damages and attorney fees — are indeed available in business tort cases that fit the description of receipt of stolen property.

This means that many fraud, breach of fiduciary duty, and even breaches of contracts and loans, could carry these steep penalties. These are powerful remedies, and their application to these relatively commonplace lawsuits is now specifically guaranteed by the Supreme Court.

Several appellate courts had declined to extend these remedies to garden-variety business-tort cases on policy grounds. The Supreme Court shared these concerns, but held the language of the statute indicated this was the intent of the legislature.

Business litigators need to know about the civil-theft remedies under Penal Code section 496. In your next fraud, conversion, breach of fiduciary duty, or even breach of contract case, consider whether your facts fit Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081). If so, treble damages and attorney fees under section 496 may be supported.

We also discuss what to do when after a judgment is reversed but an appeal of a post-judgment fee award is still pending. The answer suggested by Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC (D4d3 Juul. 20, 2022 no. G059899) 2022 WL 2824967 (nonpub. opn.) is: consider a stipulated reversal.

Finally, two appellate courts suggest different attitudes toward appellate sanctions. Shiheiber v. JPMorgan Chase Bank (D1d2 Jul. 26, 2022) No. A160188, did not issue sanctions, but urged the bar to think twice about “clogging the docket” with frivolous appeals and distracting the court from more important work. The court in Pop Top Corp. v. Rakuten Kobo Inc. (Fed. Cir. July 14, 2022) No. 2021-2174 awarded $107,000 against what the dissent suggested was merely a “weak case.” But as the dissent warned, the right of appellate review applies even to weak cases.

Judges are rightly frustrated with counsel who do not respond to unfavorable facts and arguments. So when asked what I find frustrating about appellate practice, my answer is: judicial opinions that do not answer the strongest arguments.

On most occasions when an appellate court has not agreed with my client’s position, our courts give excellent analysis. This allows my client (and me) to swallow the bitter pill.

But on several occasions, I have searched in vain for a substantive analysis of my strongest arguments. Going into an appeal, appellants understand their chances are slim. What they should be able to count on is the dignity of an explanation to their positions. It is, after all,

guaranteed by the California Constitution:

Under article VI, §14 of the California Constitution, the appellate courts of this state are required to provide reasons for their rulings: “Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” An opinion need not be exhaustive, but “a decision directing the issuance of a peremptory writ in the first instance is a ‘judgment’ ” within the meaning of provisions of Art. VI, “and the court must set forth the grounds for such a decision.” (Lewis v. Superior Court (1999) 19 Cal.4th 1232.) “[A]n opinion sufficiently states ‘reasons’ if it sets forth the ‘grounds’ or ‘principles’ upon which the justices concur in the judgment.”

To paraphrase Orwell, one does not need to be accepted, but merely to be understood. And Epictetus: “To the rational creature that which is against reason is alone past bearing; the rational he can always bear. Blows are not by nature intolerable.”

You can be sanctioned for lying to a court or from failing to disclose key authorities. That’s obvious. But two recent courts remind the bar that appellate sanctions may be imposed for making bad arguments.

One of those cases, Pop Top Corp. v. Rakuten Kobo Inc. (Fed. Cir. July 14, 2022) No. 2021-2174, imposed a whopping $107,000 in appellate sanctions. But there is an interesting dissent noting that sanctions may have a chilling effect on the right to appellate review.

The other court did not issue sanctions, but published its stern admonition to the appellant in Shiheiber v. JPMorgan Chase Bank (D1d2 Jul. 26, 2022) No. A160188, as a warning to other attorneys against “clog[ging] our appellate docket” with meritless appeals. Though the court did not issue sanctions, the court noted this was because the respondent did not file a motion for sanctions.

Comment: Juxtapose the policy observations in Shiheiber with Judge Newman’s due-process observations in Pop Top. After reading Judge Newman’s dissent, the parting observations in Shiheiber no longer sit right with me. The court’s frustration with meritless arguments and substandard advocacy is justified. But the courts should direct their frustration at counsel’s lack of diligence, without suggesting comparisons to other types of cases in the court’s docket.

The incentives are out of whack,” says Eric Post, a tenant’s rights attorney with BASTA, Inc. The past two years have seen a dramatic increase in evictions, he says. Why? Because that is the simplest way to raise the rent.

Eric talks with Jeff Lewis and Tim Kowal about the flaws in California’s landlord-tenant legal system, the near-impossibility of staying eviction judgments pending appeal, and the important differences between appeals in the appellate division and the Court of Appeal.

Eric also explains why it can be fairly easy to forum shop a case up to unlimited civil.

Finally, the discussion turns to Judge Carter’s bold effort to solve a piece of the Los Angeles homeless problem via injunction, though ultimately reversed by the 9th Circuit last year.

Defendants are entitled to an in-person trial in criminal cases. The California Constitution says so. But the Court of Appeal now holds that, even if you are denied that right, […]

I sometimes ask our podcast guests their favorite part of the appellate process…other than writing the briefs. Because we already know that every appellate attorney’s favorite thing is writing. So here I try my own explanation why writing is such a fun adventure: because it is a journey to another country. Reaching another person’s mind is a most difficult thing. Done poorly, the traveler is left marooned and alone. Done well, the traveler is met by new friendly company.

William Hazlitt’s observation is what I have in mind when it comes to translating complex ideas to another soul. He said that “the more you really enter into a subject, the farther you will be from the comprehension of your hearers—and that the more proofs you give of any position, the more odd and out-of-the-way they will think your notions.”

In a way, we are all a bit like Whitman: we are untamed, and untranslatable. Usually the most we do is to sound our barbaric yawps over the roofs of the world. Good writing requires we stop our yawping over rooftops and to consider the fact of the other. Good writing is an act of peace, and of friendship.

Civil trial attorneys have an industry secret. Say you are suing over an unpaid loan. If the borrower never intended to pay back the loan, that’s not only a breach of contract, it’s a form of theft by false pretenses. And under Penal Code section 496, civil theft is punishable by treble damages and attorney fees. For those in on the secret, section 496 is a powerful tool in a business lawyer’s toolkit.

One problem: courts really don’t like section 496. They worry that lawyers will overuse it and turn every garden-variety loan or business-tort case into a civil-theft case. So there arose a split of authority, with some cases enforcing section 496, and others refusing to enforce it.

Breaking the split, the California Supreme Court kept this powerful tool intact. In Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081) 2022 WL 2840312, the Court held the civil-theft remedies under section 496 applied to a case involving diversion of partnership cash.

But the Court did not throw open the floodgates. The Court noted that the concerns expressed by section 496 naysayers do “give pause.” And Justice Groban, joined by Justice Kruger, concurred to note they do not read the majority as endorsing civil-theft penalties in “most consumer or commercial transactions.”

If you have a civil case involving fraud that amounts to something akin to theft by false pretenses, consider seeking remedies under Penal Code section 496(c). Do not get too creative. But under Siry Investments, policy concerns are no longer a valid basis to refuse to enforce section 496. **

Here is a common scenario, with a rather uncommon resolution. You have appealed a judgment, and you have separately appealed the attorney fee award. You reversed the judgment. After reporting the victory to the client, you suddenly remember: what about the fee award?

That is what happened in *[Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC](https://casetext.com/case/mid-wilshire-prop-v-leevil-llc?ssr=false&resultsNav=false&tab=keyword&jxs=)* (D4d3 Juul. 20, 2022 no. G059899) 2022 WL 2824967 (nonpub. opn.). The appellants reversed the judgment, but briefing had not even begun in the separate appeal of the fee award of almost $500,000.

Here is what the parties did: They filed a joint stipulated request to summarily reverse the attorney fee award. And the appellate court granted it.

But the court made a few comments about the parties’ request, noting the burden for a stipulated reversal under section 128(a) ordinarily is very difficult to meet.

Here, that was not really important, because the parties are correct that reversal of the fee order was inevitable after the judgment was reversed.

Tip: If you have appealed a cost award and it is not consolidated with your main appeal, you might draw the court’s attention to it in your briefing. If the court reverses, hopefully the court will also dispose of the cost appeal at the same time.

Reviewing a recent book on persuasion trial trips based in science, Stefan Love’s conclusion is that the tips are in greater abundance than the science. True, there is much interesting science on the limits of human attention: for example, you can get a person to remember a few things, but one too many and they forget it all. But does this mean you should ditch a particular piece of secondary evidence at trial? That, as ever, still comes down to discretion and common sense.

Stefan talks with Jeff Lewis and Tim Kowal about some of the other helpful trial advice in John Blumberg’s *Persuasion Science for Trial Lawyers*, and whether it is scientific, or just common sense. Advice like:

• Excessive information can lead to worse, not better, decisions.
• Juries learn better with pictures. But avoid competition for resources: do not use written word, spoken word, and images all at the same time. It creates overload.
• You should not present all your evidence at trial, because it overloads the jury’s cognitive capacity.
• Judges who strive to run ruthlessly efficient trials should reconsider: eliminating downtime actually undermines jurors’ ability to process the information.
• For the same reason, trial lawyers should slow down, use repetition, and even stop talking every now and then.

Only a small fraction of cases and issues go up on appeal. That means trial attorneys see things that appellate judges don’t. So when high-profile family-law specialist Christopher Melcher sees an appellate court issue an unpublished opinion tackling a troublesome issue, he asks the court to publish it, for the benefit of the rest of us.

You should, too. Anyone can request publication of an unpublished appellate opinion. Even if you’re not a party to the case. Clear rules help everyone.

On the topic of judgment enforcement, the new rule announced in Coastline JX Holdings LLC v. Bennett (D4d3 Jul. 7, 2022, No. G059552) --- Cal.Rptr.3d ----, 2022 WL 2527118 is that a judgment-debtor’s profit-sharing plan is exempt from levy under both ERISA and California law, because profit-sharing plans are non-assignable.

And on the topic of civil procedure, while a trial court lacks jurisdiction to reconsider a “final” order, that does not apply to interim rulings whose deadline to appeal has not yet expired. So the trial court’s reconsideration here was valid.

This clarifies a number of recent cases holding trial courts lacked jurisdiction to entertain motions for reconsideration.

But the curious thing about this part of the opinion is that the court seems to allow the trial court to extend its jurisdictional window to reconsider an order indefinitely. Jurisdictional rules ordinarily cannot be extended except by statute. But here, the court held that the time in which the trial court could reconsider the order was extended when the trial court indicated it would “potentially” reconsider it. After that point, the Court of Appeal does not suggest how long this “potential reconsideration” period might last.

This seems to leave nothing of the jurisdictional time limit for the trial court’s period to reconsider the order.

When you look up an answer whether an order is appealable, the cases are supposed to give you straight answers. But here are three cases that give surprising answers. (Ok, really just two — if you are surprised by the second one, you were mistaken.)

Summary judgment orders are not appealable. It says so right in the statute. But it was held appealable in Reed v. Aviva USA Corp.

Minute orders have to be signed to be appealable. (Ok, not really: only minute orders dismissing a case must be signed, per CCP 581d.) Liang v. Shi held minute orders are appealable, with or without a signature.

A vexatious litigant denied permission to file a new lawsuit may appeal the denial order as an injunction order. There is precedent for that point. But Marriage of Deal was not having it: appeal dismissed.

Also: Counsel horse-traded verdict forms in a recent med-mal case in Silvester v. Niparko for limitations on judgment-enforcement.

Almost any order having to do with an anti-SLAPP motion is appealable.

Almost.

In Kaplan v. Davidson (D2d7 Jul. 11, 2022 No. B312826) 2022 WL 2662982 (nonpub. opn.), Kaplan defeated Davidson’s anti-SLAPP motion. Orders granting or denying anti-SLAPPs are appealable.

Kaplan then moved for attorney fees. Orders granting anti-SLAPP fees are appealable.

But Kaplan’s motion for fees for defeating the anti-SLAPP was denied. And on appeal, Kaplan learned that this is the one order after an anti-SLAPP motion that is not appealable.

The court followed the holding of Doe v. Luster (2006) 145 Cal.App.4th 139, 142 (Doe). As that appeal involved both a denial of a SLAPP and a denial of SLAPP fees, the appellant thought it made sense to review both. The court took a hard pass: there is “no creditable argument that combining the two motions—one that results in an immediately appealable order; one that does not—somehow transforms the nonappealable order into one that is appealable.” (Id. at p. 150.)

No creditable argument? Had Doe gone too far? The Fourth District, Division Three thought so. In Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265 (Baharian-Mehr), the court thought it “absurd” that the SLAPP denial should be appealable but the SLAPP fee denial not appealable.

The unpublished Kaplan opinion sided with Doe. But whether the Second District thinks there is a “creditable argument” that SLAPP fee denials are appealable, there is an argument supported by published authority. Despite the conflict in authority, trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”

“You have an informal writing style.” How do you take that? Compliment, or criticism?

This is hard to answer, says legal writing pro Ross Guberman. There is a strong trend in favor of more direct and approachable legal writing—and in this sense, “informal” is a compliment. But there is also a trend among judges—and lawyers following suit—toward the pithy (Twitter-ready), the precious (pop-culture-referencing), and even the biting (Judge VanDyke’s McDougall concurrence).

While there is something to be said (good or bad) about the attention-grabbing lines, Ross explains what really takes skill—and achieves persuasion—is to write as though you were having a conversation.

Lawyers in California courts may not rely on unpublished cases. But federal courts may. And California courts may rely on federal courts—even when the federal court relies on an unpublished California case. In Meza v. Pacific Bell Telephone Co. (D2d3 Jul. 12, 2022 case no. B317119) 2022 WL 2680080, that’s just what a California court did.

Meza filed a class action against his employer, Pac Bell, over meal and rest violations. The trial court denied class certification as to certain of the claims and Meza appealed from this order (among others).

The Court of Appeal reversed, finding that the claims were common among the class members. As part of its analysis, the court relied on a Ninth Circuit decision.

But as the Meza court acknowledged, the Ninth Circuit relied on two unpublished California appellate decisions in its analysis of the issue. Meza further acknowledged that “we are not permitted to rely on such cases.” But, the resourceful court went on, “a federal court may do so.”

This is one of the many ways courts commonly disregard the no-citation rule under California Rules of Court rule 8.1115.

Matthew Strugar knows something about defending protesters threatened with legal action, even jail — because he used to be one of them. Drawing from his activist background, including defending animal rights, Matt talks about how civil-harassment restraining orders are abused to squash speech rights, though the anti-SLAPP law can still come to the rescue. Matt also talks about why protests outside private homes are still protected, even though judges don’t like it.

Matt then mediates a fight between Jeff and Tim about whether anti-SLAPP fee awards are automatically stayed on appeal.

If you write your brief in a straight line, legal writing pro Ross Guberman might give your brief high marks as being Flowing & Cohesive. But if you write like Tocqueville did—as “an act of discovery”—you may need these tips from Ross on how to make your brief more Flowing & Cohesive.

Appellate rules are treated as jurisdictional. So it is important for appellate rules to be very clear. One such nice and clear rule is: Orders granting summary judgment are not appealable.

Except, the rule is a lie, as it proved in Reed v. Aviva USA Corp. (D1d1 Jun. 16, 2022 no. A158535) 2022 WL 2165479 (nonpub. opn.). The trial court granted defendants’ motion for summary judgment. But for some reason, the court did not enter a formal judgment. So the plaintiff appealed from the order granting summary judgment.

The Court of Appeal acknowledged that an order granting summary judgment is not appealable. But the court reviewed the order anyway because the order “showed a clear intent to finally dispose of Reed's complaint against respondents.”

Here is the problem with making exceptions to jurisdiction rules like this. If an appellant were to take the rule at face value that orders granting summary judgment are not appealable, then the appellant would file a motion under Code of Civil Procedure section 664 to have the clerk enter a judgment. But this would put the appellant to the risk of blowing the deadline to appeal from the order.

So now the plaintiff is in a darkly ironic conundrum: On the one hand, the plaintiff has blown the deadline to appeal from the order, which, on its face, showed a clear intent to finally dispose of the complaint, and thus was appealable under the logic of Saben and many other cases like it. And as we know, the deadline to take an appeal from an appealable order is jurisdictional.

But on the other hand, the plaintiff now has a judgment, which is explicitly an appealable order under Code of Civil Procedure section 904.1(a)(1).

What does this mean? That there two appealable judgments? And the latter judgment restarts the time to appeal? But that would violate the rule — again, jurisdictional — that the time to appeal cannot be restarted by a subsequent order or amendment.

What the Court of Appeal should have done here was to catch the problem when the plaintiff filed the Civil Case Information Statement. The court should have instructed the plaintiff to go back to the trial court and get a judgment. Yes, it may seem fussy. But jurisdictional rules are fussy. They impose heavy burdens on litigants. So something seems off when courts treat them lightly.

The vexatious litigant in Marriage of Deal (D1d3 Jun. 21, 2022) no. A164185 (nonpub. opn.) is not a very sympathetic figure. The ex-husband, Thomas Deal, having filed 12 appeals and seven writ petitions after his divorce proceedings years ago, continued filing meritless actions and appeals that made “implicit threats against various members of the California judiciary and the State Bar.” Thomas, the court observes, now “stands alone on the silent battleground rattling his saber.”

No surprise, then that the trial court declared him a vexatious litigant. And once a court declares a litigant to be vexatious, Code of Civil Procedure sections 391 and 391.7 prevent the litigant from filing new litigation without obtaining permission from the presiding judge.

So Thomas requested permission. And it was denied. And so Thomas, going for a baker’s dozen, filed his 13th appeal from the denial.

But surprisingly, the court held that the prefiling denial under section 391 is not an appealable order. This is directly opposite published authority that a prefiling order under section 391.7 against a vexatious litigant “meets the definition of an injunction.” (Luckett v. Panos (2008) 161 Cal.App.4th 77, 90.)

Prof. Shaun Martin, though agreeing Thomas’s appeal was frivolous, worries about denying appellate review: “We don't generally let a single judge decide things once and for all without any right to review whatsoever.”

Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and me about how he has addressed these kinds of problems while serving as embedded appellate counsel.

What is “embedded appellate counsel”? Jimmy explains that, too. And why trial attorneys should consider having embedded appellate counsel at their next trial.

Jimmy, Tim, and Jeff then talk about why California courts, unlike federal courts, do not provide audio recordings of trials. Our courts have the equipment. A statute even provided for electronic audio recordings, as did a Judicial Council rule. But then a powerful lobby got the program permanently mothballed.

After an ear doctor was sued for pushing a charity on one of his patients, the jury returned a defense verdict. But the Court of Appeal reversed in Silvester v. Niparko (D2d7 Jun. 20, 2022 no. B301926) 2022 WL 2197100 (nonpub. opn.), holding that the trial court abused its discretion when it refused to allow Silvester to offer evidence of his impaired and vulnerable state when Dr. Niparko pushed his charity on him.

Seldom do judgments get reversed based on evidentiary rulings. But the judge here steadfastly kept out all Silvester’s evidence on an element of his claims, even rebuttal evidence.

There was one more curious detail in the opinion. The opinion notes that, during the trial, “Respondent agreed to a general verdict form in exchange for Silvester's written agreement that he would not seek to execute on any estate assets other than insurance and indemnity protection.”

Typically, defendants prefer to have special verdict forms, because it is easier to challenge them in posttrial motions and appeal. Silvester, to get his way on a general verdict form, agreed to limit his rights to enforce the judgment against the estate beyond the insurance and indemnity coverage.

This is an interesting strategy that may be worth exploring in your next trial.

When trying to settle or mediate a case on appeal, how important is it to stay enforcement of judgment? Appellate mediator John Derrick talks with Tim Kowal and Jeff Lewis about whether posting a bond make a judgment-creditor more or less likely to come to the table. And what about the strange and rare personal-surety bonds?

I have always thought a minute order has to be signed to be appealable. I don’t think so anymore. Even thought Liang v. Shi (D4d3 Jun. 14, 2022 no. G060655) 2022 WL 2128432 (nonpub. opn.) is unpublished, I think it’s holding is correct that the unsigned minute order there was appealable.

Liang involved an action to enforce a marital settlement agreement. The trial court awarded the mother $100,000 in fees. But the court made the award in an unsigned minute order, and then later signed a formal order.

The father contended the minute order was not appealable because it was unsigned. And in fact it is easy to find lots of cases that say an unsigned minute order is not appealable.

But nearly all of those cases (maybe all of the published ones) deal with unsigned orders of dismissal. And under Code of Civil Procedure section 581d, an order of dismissal must be signed. (E.g., Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578.)

Outside of dismissal orders, however, there is no requirement that a minute order be signed to be final and appealable.

Note that the appellant here was represented by a very experienced certified appellate specialist. The rules of appellate procedure can trip up even the best attorneys. Best not go it alone.

Being a victim of discrimination and harassment at the hands of an employer is hard enough, but what happens when your employer is a judge? On episode 39 of the California Appellate Law Podcast, Aliza Shatzman discusses her personal experience and why it was not only personally horrifying, but damaging to her career.

Aliza also shares how the experience motivated her to create the first-of-its-kind Legal Accountability Project, a resource for aspiring law clerks and other judicial employees.

We also cover with Aliza:

- Why the Judicial Conduct & Disability Act (28 USC § 358) is not working;
- Why judges tend to be unwilling to police the misconduct of their colleagues;
- Courts seem different from normal workplaces, and clerkships seem different from normal jobs. Should they be treated differently?
- In the U.S. Supreme Court’s investigation of a recent draft opinion leak, clerks are being asked to turn over the cell phones and call data. Is this over the line?

CEB has my article, “Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict,” about Kline v. Zimmer, Inc. (May 26, 2022, B302544) ___ Cal.App.5th ___. Here is the link: https://bit.ly/3bqglfY

The case involved a trial error in which the judge excluded the defendant’s expert to rebut the plaintiff’s expert on causation. The trial court excluded the expert because the expert’s confidence in the opinion did not exceed 50% likelihood.

The Court of Appeal reversed. A defendant’s expert doesn’t have to prove 51% likelihood. The 51% threshold is the plaintiff’s burden of proof, not the defendant’s. And where the excluded rebuttal opinion was the only rebuttal opinion, the exclusion leads to a “one-sided presentation of evidence.” This was a structural error, requiring automatic reversal.

The unusual thing about Kling v. Horn (D2d7 Jun. 8, 2022 no. B310164) 2022 WL 2062642 (nonpub. opn.) is that the party who won the judgment was the one raising a problem about it.

Following an arbitration over an attorney fee dispute, the trial court entered a judgment of about $120,000 to the attorney. But to the attorney’s chagrin, the judgment stated that the parties shall bear their own fees and costs. The attorney didn’t like this because he claimed he was entitled to contractual attorney fees. So the attorney moved the trial court to amend the judgment to remove that part.

But before the trial court ruled on the motion, the client appealed. So when the trial court amended the judgment confirming the arbitration award, the client appealed again. The client’s second appeal, then, argued the amended judgment violated the appellate stay.

Compounding the confusion, the trial court also granted the attorney’s motion under Code of Civil Procedure section 187 to add the client’s business entities as co-judgment debtors. Again, while the appeal was pending. This was the subject of yet another appeal, 3123 SMB, LLC v. Horn (D2d7 Dec. 14, 2021) no. B309412 (nonpub. opn.).

The court noted the trial court created a “procedural mess” by amending the judgment pending appeal.

Last month, the Court of Appeal threw out an appeal as untimely in Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 76 Cal.App.5th 43, covered previously here. The California Supreme Court has granted review on the issue: “Did the Court of Appeal correctly dismiss the appeal as untimely?” reports David Ettinger.

Meinhardt held that the trial court’s order denying a police officer’s petition for a writ of mandamus was the appealable order, and by awaiting a formal judgment, he missed the deadline to appeal.

Meinhardt focused on the California Supreme Court holding in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, that an order partially granting and partially denying a petition for writ of administrative mandamus was a final appealable order.

But the officer made some good arguments, too. The officer argued that, under Code of Civil Procedure section 1094.5, subdivision (f), governing proceedings involving writs of mandamus, the trial court “shall enter judgment.” And where further orders are contemplated, normally this undermines finality.

Look for the Supreme Court to take up these questions.

H.L. Mencken had it that “democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

In two recent opinions, California courts gave the people what they voted for by enforcing two California voter initiatives: one that is tough on criminal defendants, and another that is favorable to criminal defendants.

• Enforcing the tough-on-crime Three Strikes law, the Los Angeles appellate court handed DA George Gascon a loss on his assertion of prosecutorial discretion to refuse to enforce Three Strikes.

• But the court also enforced the softer-edged Prop 57, the law that requires all criminal charges against minors be tried in juvenile courts. The Supreme Court held Prop 57 was retroactive, with the rather unsettling result that a now-40-year-old who murdered his mother at 16 (he stabbed her 45 times) may soon be released.

Then we turn to some anti-SLAPP news: Another dissent in the 9th circuit arguing that Anti-SLAPP denials should not be immediately appealable.

Then on the expert witness front: A state appellate court holds exclusion of expert opinion is structural error on appeal requiring automatic reversal.

If you have not seen a case citation with a parenthetical (”cleaned up”) yet, you will eventually. Writers use it when altering—ever so slightly—quotes from legal authorities. Legal writing pro Ross Guberman explains why some attorneys love it, and others hate it.

Ross also addressed my view: that I trust judges to “clean up” quotations, but I don’t know if judges and law clerks would trust us attorneys’ trying our hand at it. Ross is not enthusiastic about double standards in legal writing: if judges adopt a practice, it is too much to expect lawyers not to follow suit.

Do quips and “Twitter-ready” lines make for good legal writing? Legal writing pro Ross Guberman says the better approach is “quieter,” less conspicuous writing that “rises above the fray” by being clear, flowing, and concise.

“I forgot to move my exhibits into evidence!” Many trial lawyers have made this sudden realization, often in the middle of the night in a cold sweat. But two recent cases (and a fistful of antacids) may get you back to sleep again.

At the trial between the two partners in a restaurant business in Amirnezhad v. Ghayam (D2d8 May 4, 2022 no. B306361) 2022 WL 1401387 (nonpub. opn.), Amirnezhad prevailed and got an award of almost $160,000 in attorney fees and costs. the basis for the fee award was a promissory note.

But, the note was not admitted at trial.

No problem, the Court of Appeal held. Under Dodson v. Greuner (1938) 28 Cal.App.2d 418 (Dodson), if the circumstances suggest the exhibit was intended to be offered and admitted—that is, it was authenticated, discussed at trial, and there was no dispute about its admissibility—the exhibit may be deemed admitted on appeal.

The Upshot: If you forgot to move a key exhibit into evidence, argue the Dodson case. If you laid the foundation for the exhibit and there was no dispute over its authenticity, then under Dodson the appellate court may deem the evidence to be part of the trial record.

(But you still have to make sure the missing exhibit is part of the appellate record. For this, consider consulting an appellate specialist.)

The Co-Founder of Casetext, Pablo Arredondo, explains how legal technology that is available today will allow solos and small firms to compete against Big Law. Tim and Jeff talk with Pablo about:

• Why Artificial Intelligence—which didn’t work well for a long time—now makes it much, much easier to find the legal authority you’re looking for.

• The searches you are used to making is just “casual Friday in the keyword prison.” But now, you can put real English sentences into Casetext’s Parallel Search and it works.

• Casetext’s A.I. isn’t limited to legal authority: you’ll be able to put your entire case file into a database and search for the evidence that supports the key facts in your case.

• This gives small firms an alternative to deploying armies of staff to find evidence in a voluminous file.

• Using Casetext’s Compose to create a first draft of a brief in a few minutes.

• A.I. might be able to replicate “murder boards” in the future for attorneys preparing for oral argument.

• In fact, the way “neural net” A.I. works is so impressive, Pablo describes it as a “black box,” and sometimes it is hard to describe what it does without using words like “thinking.”

In a 4-3 decision, the majority in People v. Padilla (May 26, 2022, no. S263375) --- Cal.5th ---, started with the proposition that California’s Prop 57, which requires minors to be charged in juvenile court, is retroactive in all nonfinal cases. But when is a case “final”? Here, Padilla, who at age 16 murdered his mother by stabbing her 45 times, was convicted way back in 1999. That seems pretty final, right?

Turns out, “finality” is not quite literal, but more a term of legal art. The majority was more comfortable with blurring the lines than was the dissent, which is why the 4-3 split.

What is surprising about this case is that the high court justices were so evenly split on the question of what makes a judgment “final” — a foundational point of appellate procedure.

The upshot of the majority opinion is that, once a judgment has been successfully reopened to review via a collateral attack, all bets are off, and the judgment is no longer final. So the Prop 57 challenge was available, even to attack the underlying charges — despite the fact that these had been beyond the scope of the collateral challenge.

The upshot of the dissenting opinion is that, although a judgment may be challenged via collateral attack, the review and remedies available should be limited to those available by the collateral challenge. So here, the collateral challenge did not reach the underlying charges, so these should remain “final” and beyond appellate review.

California Litigation has published my article “Are Anti-SLAPP Fee Awards Stayed on Appeal?” in its Spring 2022 issue. You can access the online version when it becomes available here: https://bit.ly/3aFty3P

My article answers the question: Yes, anti-SLAPP fees are automatically stayed on appeal. But for the past 20 years at least, the answer has been “no.” That is because that is how Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 answered the question, calling SLAPP fees a “nonroutine cost” and thus excepted from the automatic stay.

But the Legislature had abrogated the “routine vs. nonroutine” distinction way back in 1993. Dowling, it seems, did not catch the drift.

Fortunately, Quiles v. Parent (2017) 10 Cal.App.5th 130 noticed something was amiss, and reasoned that “nearly all postjudgment awards of costs in California courts should be subject to the automatic stay….”

The upshot: If you want an anti-SLAPP fee award to be automatically stayed on appeal, cite Quiles. It is the better reasoned case and more consistent with the statutes. But until the Supreme Court resolves this split, litigants who want to enforce anti-SLAPP fee awards pending appeal may still rely on Dowling.

When a cadre of appellate nerds began the California Academy of Appellate Lawyers (and Eating and Drinking Association) 50 years ago, the state appellate system was not functioning well.

In this episode of the California Appellate Law Podcast, Ben Shatz talks about the founding of CAAL, which finally provided a place for appellate jurists and practitioners to speak frankly about the problems in the courts, and how to solve them.

And following CAAL’s founding, says Ben, the related flourishing of state and local bar sections and publications devoted to appellate practice ushered in a golden age of appellate practice in California.

When the plaintiff defeats a meritless SLAPP motion, the plaintiff still may have to face a meritless appeal.

That’s what happened—twice—in the now-seven-year-old case of Flo & Eddie, Inc. v. Pandora Media, LLC, 2022 WL 1800780 (9th Cir. Jun. 2, 2022). The founders of The Turtles sued Pandora for failing to pay for playing Turtles songs. Pandora filed anti-SLAPP motions arguing playing music was protected speech. Two appeals and seven years later, Pandora lost.

Judge Daniel Bress wrote a concurring opinion saying this is too much to take. The federal rules do not provide for the appealability of denials of anti-SLAPP motions. Instead, they have been held to be appealable as “collateral orders.” But a collateral order is an order that, among other things, is “completely separate from the merits of the action.” Will v. Hallock, 546 U.S. 345, 349 (2006). And an anti-SLAPP motion explicitly requires the moving party to prove the complaint lacks merit. So, by definition, an anti-SLAPP denial is not a collateral order.

(I tend to agree with Judge Bress.)

The 2020 film I Care A Lot is premised on the possibility of predator conservators using the conservatorship system to loot the estates of the elderly. Could it actually happen?

Probate attorney David Greco says that, while the film makes some leaps, conservatorship abuse does happen. Improper uses of conservatorship include children seeking conservatorships over parents for writing them out of their estates, or even for refusing to take their children’s phone calls.

David also relates a story of a conservator who locked her ward in the house and isolated him from examiners. Thwarting her efforts cost multiple millions in attorney fees.

David explains why the #FreeBritney movement is a long-time coming, and has produced at least one favorable change that allows conservatees to hire their own counsel. (Query why that basic right had been denied until 2021.)

In one of the many lawsuits by hip-replacement patients against the maker of the Durom Cup, Kline v. Zimmer, Inc. (D2d8 may 26, 2022) ___ Cal.Rptr.3d ___ 2022 WL 1679539 held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. This is surprising because, normally, trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic reversal.

Basically, the plaintiff offered an expert to opine that the Durom Cup was the cause of the pain and suffering. Zimmer’s expert was going to opine about other possible causes, even if they were less than 51% likely to be the cause. The trial court excluded it because medical expert opinion has to be 51% likely.

The Court of Appeal reversed. A defendant’s expert doesn’t have to prove 51% likelihood. The 51% threshold is the plaintiff’s burden of proof, not the defendant’s.

And where the excluded rebuttal opinion was the only rebuttal opinion, the exclusion leads to a “one-sided presentation of evidence.” This was a structural error, requiring automatic reversal.

The Upshot: This is the second reversal after a trial, which means the parties will have to try this case a third time. The trial judge, the Hon. Daniel J. Buckley, is a former personal-injury defense attorney. This suggests that, despite the care and experience devoted to this trial, trial procedure governing experts is both extraordinarily important and extraordinarily variable. To the extent expert issues can be crystallized in motions in limine, trial counsel should consider taking up a writ petition.

Jeff and Tim discuss some surprising recent cases, including two cases where the courts allow untimely appeals, and a case where the right to an appellate record via a settled statement was duly requested and rejected in the trial court and with no recourse in the Court of Appeal.

And Jeff previews an anti-SLAPP motion brought by Sony Music that might be characterized as a SMACC: a strategic motion against credible claims. Did the Legislature, when enacting the SLAPP statute, have corporate giants like Sony in mind?

Even when a prevailing party is entitled to recover attorney fees, the court may deny fees in extraordinary circumstances. The authors of the California Attorneys Fees Blog, William (Mike) Hensley and Marc Alexander, talk about a few of the cases where excessive and unreasonable fee requests have been denied in their entirety. Also, do not call the trial judge a “succubus.”

A default judgment was entered against husband and wife, the landlords in the landlord/tenant dispute in Phillips v. Wang (D1d2 May 25, 2022 no. A162181) 2022 WL 1658076. Husband filed a notice of appeal. But husband didn’t put his wife’s name on the notice. And wife didn’t file one of her own.

The plaintiff noted this, and moved to dismiss the appeal as to wife. Filing a notice of appeal, the plaintiff argued, is the price of admission to the Court of Appeal.

The Court of Appeal disagreed, citing the doctrine of liberality in interpreting a notice of appeal and the Supreme Court’s opinion in K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875.

The doctrine of liberality is an exception to the ordinary rule that “appellate jurisdiction cannot be a matter of appellate discretion.” (Quest Internat., Inc. v. Icode Corp. (2005) 122 Cal.App.4th 745, review granted Jan. 19, 2005.) Even if you didn’t file a timely notice of appeal, as long as someone else did, you might be able to slip past the doorman.

High-profile and celebrity family law attorney Christopher Melcher has represented some of the largest divorce cases in California, including multiple cases ending in published appellate decisions. Chris talks with Jeff Lewis and Tim Kowal about how celebrity-driven cases shape the law, such as the #FreeBritney movement against conservatorship abuse.

Chris then talks about a way to bring more attention to non-celebrity cases through requests for publication of nonpublished opinions that raise important issues. And what kinds of cases pique the Supreme Court’s interest? It is often not what you think, says Chris, which is where bar networks come in handy in keeping up on legal trends.

Probate litigator and appellate attorney David Greco tells why the probate “stay killer” is his “favorite provision in the Probate Code.” Probate Code section 1310(b) allows a probate judge to override the automatic appellate stay, which can, in many cases, render the appeal moot.

David explains why this is an important tool in many probate cases.

Victoria Fuller, a certified appellate specialist focusing on family law, explains what family law attorneys most often misunderstand about the appellate process.

Her answer: “substantial evidence” review. Appellate review of a factual finding doesn’t just mean deference to the trial court. It means the appellate court considers only—only—the other side’s evidence, and completely disregards your evidence.

This means that, to have a shot on appeal, you have to look at your case a whole new way.

The trial court may not deem the right to a jury trial waived simply because the plaintiff failed to comply with local rules, like failing to submit trial binders.

That is the important point about waiver of the right to a jury trial in Amato v. Downs (D4d2 May 6, 2022 No. E075421) -- Cal.Rptr.3d ----, 2022 WL 1438723.

But I disagree with Prof. Martin about whether this structural error should result in automatic reversal. Prof. Martin thinks it should not, because the trial court granted a judgment under Code of Civil Procedure section 63.8 after the plaintiff rested his case in chief. Prof. Martin takes this to mean that sending the matter back for a jury trial would just waste everyone’s time.

I suggest that Prof. Martin has overlooked that a trial judge making a judgment under section 631.8 is sitting as a trier of fact. It is not a judgment as a matter of law like a nonsuit or JNOV.

So Prof. Martin and I agree that the Court of Appeal here got it right. But the fact that the plaintiff could not persuade the judge does not mean it would be futile to afford him his constitutional right to try to persuade a jury.

Drawing from his experience training federal judges and top law lawyers how to write more effectively, Ross Guberman shares some of his best writing tips with Jeff Lewis and Tim Kowal on episode 33 of the California Appellate Law Podcast at www.CALPodcast.com.
Ross also gives a tour of his latest product, BriefCatch 3.0 (now available on Mac), a tool that scores legal briefs for engagement, readability, flow, punchiness, and clarity. Not sure how to take your writing from merely proper English to Elena Kagan? BriefCatch provides in-app examples of some of the best passages of Supreme Court justices.

Here are some of the tips Ross covers:

✍️ Why more judges are using pithy, attention-grabbing language—and why you shouldn’t imitate it in your briefs.
✍️ Rising above the fray without resorting to quips.
✍️ Getting the judge’s attention by tapping into three universal fears all judges have.
✍️ Discussing “bad facts” confidently, not defensively.
✍️ Using BriefCatch to improve your briefs.
✍️ Remember the purpose of legal writing is to help judges organize their thoughts—briefs are a tool, but aspire to make them tools that are a pleasure to use.

CEB has published my article on Spahn v. Richards (2021) 72 Cal.App.5th 208, which awarded a staggering $239,000 in costs-of-proof attorney fees for refusing to admit a request for admission. You can read the article here: https://research.ceb.com/posts/draft-your-rfas-with-costs-of-proof-and-settlement-in-mind.

Spahn held the RFA here went to the ultimate legal issue in the case. Not a concrete fact, but the ultimate fact to be deduced from all the evidence.

You have heard courts say that a timely notice of appeal is a prerequisite. As in, non-negotiable. As in, the court doesn’t even have jurisdiction to consider your appeal, so don’t even ask, ok?

But do the courts really mean it when they say that a timely notice of appeal is a jurisdictional prerequisite? This week, two cases give reason for doubt.

In one case, an appellate court held a belated appeal from a judgment may be resurrected by appealing from a subsequent cost award in an amended judgment.

And in another case, the court held an appeal filed after the 60-day deadline after a notice of entry is timely if the notice of entry does not attach the judgment.

The Upshot: Before these recent cases, I would have uniformly advised against taking an untimely appeal. Filing an untimely appeal and asserting off-the-wall theories that the appeal was timely filed after an amended judgment for costs, or that the notice of entry was invalid for not including attachments, might have been frivolous and subject to sanctions. Now, I am not so sure. Arguments supporting untimely appeals may be “on the wall.” Watch this space.

We asked Victoria Fuller, a certified appellate specialist focusing on family law, about getting the appellate court’s attention in family law writ petitions. Showing extraordinary harm in money cases is a tough sell, but it should work in family cases, right?

Victoria explains that it is just just very hard, even when there is genuine irreparable harm like in move-away orders.

In another moment during our discussion, Victoria told us that even family law justices, upon being elevated to an appellate justiceship, have commented they had no idea just how vast is a family law judge’s discretion.

The mother appealing the parentage order in R.M. v. J.J. (D3 Apr. 29, 2022 no. C090018) 2022 WL 1301801 (nonpub. opn.) had a solid issue on appeal: her ex-husband had made frequent angry outbursts and hostile gesticulations throughout the day-long hearing. The mother thought this display of her ex-husband’s rather obvious need of anger management confirmed that giving him custody of a young child was not in the child’s best interests. But the trial court refused to consider the ex-husband’s outbursts. This admitted refusal to consider these angry outbursts, mother argued, was an abuse of discretion.

But the Court of Appeal held: Outbursts? What outbursts? We see no record of any outbursts. Order affirmed.

You see, when you appeal, you have to show the Court of Appeal what happened during the trial court proceedings. The best way to do that is to have a court reporter transcribe every word of the proceedings. But that is expensive. Acknowledging this expense, the rules give financially-constrained litigants another way to provide an appellate record. This alternative is called a settled statement.

But in this case, the settled statement became a heavily-litigated affair, resulting in a version expurgated of the matters relevant to the mother’s appeal. In short, the worst of both worlds.

The Upshot: Do not count on a settled statement. Yes, it is in the rules. But this is not the first time I have heard that a trial judge refused to provide a settled statement, and that a Court of Appeal refused to do anything about it. Do not be misled into thinking there is a way to furnish an appellate record other than a reporter's transcript. Yes, this sets up an access-to-justice problem. The Legislature needs to fund court reporters, or re-institute its audio-recording program (which was nixed, by the way, at the behest of the reporters’ lobby, as a presiding justice recently confirmed for me.)

Certified appellate specialist and mediator John Derrick talks to Jeff Lewis and me about mediating cases on appeal. John explains that some appellate courts have mediation programs because of a mission to promote settlement. But the courts’ job is to decide cases. John discusses the conflict between these two roles, including a story about an appellate justice who regretted volunteering he wished the case would settle, but then unsubmitting the case for a post-oral-argument mediation. (This case still didn’t settle.)

Some other items discussed:

• There are no mandatory settlement conferences on appeal: should there be? (No.)
• Why parties don’t want to settle on appeal, and what counsel can do about it.
• The importance of stays and posttrial motions.
• Should judges be in the business of mediating?
• When to notify the court about a possible settlement.
• The pros and cons of Zoom mediations.
• As a former publisher, John urges attorneys to use decimal-outline format for headings, i.e., 1., 1.1., 1.2., 2., etc.

Although the defendant specifically invoked his constitutional and statutory right to to be “personally present” at his sentencing hearing, the California Court of Appeal in People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___, held that limiting a defendant to a virtual appearance, while legally improper, creates no harm. The court affirmed the 10-year sentence.

My Comment: I don’t know about this. I mean, how do you prove that the denial of your right to an in-person hearing hurt you? Here are some possible ideas:

• If you have poor audio or connection quality, say so, early and often.

• If you struggle with or are distracted by the virtual software interface, say so — again, early and often.

• If someone is speaking off camera, like a clerk, alert the court that you cannot see who is speaking.

• If you have an opportunity to speak and you would prefer to stand, tell the court you would like to do so, but that you will need to adjust your camera and microphone. Insist that the court indulge you for as long as that process takes.

• Maybe you like to gesticulate while speaking? You should indicate you are making hand movements but that you are not sure if they are all within the frame.

• Maybe you move your head from side to side or modulate your voice when speaking? You should note that you are not sure whether the microphone is picking up everything.

• In short, demonstrate that conducting the hearing virtually rather than traditionally was distracting, limited your presentation, and ultimately prevented you from the most effective advocacy possible.

What do you think, #AppellateLinkedIn? Will these ideas work?

After Jeff quizzes Tim on a bit of appellate esoterica about the automatic 15-day default extension for appellate briefs, the co-hosts discuss whether appellate justices modulate their approaches to sympathetic cases. The conversation also covers recent cases and news involving:

• An appeal that became moot due to pending litigation
• One federal judge issues a nationwide injunction against the CDC mask mandate, and another federal judge sounds off against nationwide injunctions
• Law firm sued for alleged Unruh Act abuse
• SLAPP suits and... SMACC suits?

Commentator Michael Shipley calls this one a “bait and switch.” In Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 2022 WL 702912 ___ Cal.Rptr.3d ___, a police officer lost his petition for writ of mandamus. The trial court entered a signed “order” in August, served the same day. But the court did not enter judgment until nearly two months later. The officer appealed. The appeal was timely if it was from the judgment. But it was untimely if it was from the denial order.

The Court of Appeal held the signed denial order was the appealable order, even though it was not a formal judgment. Thus, the appeal was untimely and must be dismissed.

The court focused on the California Supreme Court holding in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, that an order partially granting and partially denying a petition for writ of administrative mandamus was a final appealable order.

The office made a lot of good arguments why the appeal was properly taken from the judgment, including the fact the statute says a judgment “shall” be entered. But the court was unpersuaded.

The Upshot: When the trial court enters an order that basically ends the case, carefully consider whether it is immediately appealable. Sometimes it will be, like for orders on petitions for writs of administrative mandamus. Other times, it won’t be, like orders after demurrers and MSJs. This may be a good time to inquire with an appellate specialist.

An employer-defendant answered a wrongful-termination complaint, served multiple sets of discovery, and took the employee-plaintiff’s deposition during 13 months’ of litigation, before finally moving to compel arbitration. The trial court refused to compel arbitration, ruling the employer waived arbitration by its unreasonable delay. That seemed unsurprising.

So it seemed surprising that the majority in Quach v. Calif. Commerce Club, Inc. (D2d1 Apr. 14, 2022 no. B310458) 2022 WL 1113998 (nonpub. opn.) found that these facts, as a matter of law, do not waive arbitration. The court noted that the California Supreme Court in *Saint Agnes Medical Center v. PacifiCare of California* (2003) 31 Cal.4th 1187, 1203, had held that mere participation in litigation, and merely driving up court costs and expenses, are not enough to establish waiver of the right to arbitrate.

True, undue delay and waiting until the eve of trial can be grounds for waiver. But the court here found—again, as a matter of law—that “almost seven months before the trial date” is “not on the ‘eve of trial.’”

Good to know.

Writing in dissent, Judge Crandall was persuaded by the employee’s argument in his brief: “Quach's appellate brief hits the nail on the head: “[By now], all benefits of a speedy resolution [Quach] could have obtained through arbitration [have] been lost.”” Judge Crandall thought the court should not “overextend ourselves” to accommodate arbitration under these facts.

Briefing Faux Pas?: The court suggests it is unethical to copy arguments from court opinions without attributions. I don’t know why you wouldn’t give a cite. But I don’t see how this is unethical.

The Upshot: Although arbitration waivers are not supposed to be driven by any single factor, expect that the court will insist on a showing of prejudice or unfair advantage. While delay is relevant, a delay of even 13 months might not suffice. But do not rely on mere participation in litigation or driving up litigation costs.

The appellate court in People v. Williams (2022) 75 Cal.App.5th 584 admonished a criminal defendant’s attorney for failing to tell the court about a relevant case that had held the kind of order involved there was not appealable.

The court warned that any future violation “may warrant disciplinary review by the State Bar or other corrective action.”

The Upshot: If you are an appellant, this is a good reminder that the Court of Appeal pays close attention to your Statement of Appealability in your opening brief. Do not gloss over it. If there is doubt about appealability, be prepared to raise the collateral-order doctrine, or to seek review on a writ basis. If you are unsure whether your order is appealable, consider consulting an appellate specialist.

In the post I also note one thing that bothers me. Remember that California has no horizontal stare decisis: no Court of Appeal opinion is binding on any other Court of Appeal. So why do we require attorneys to tell appellate courts about other appellate decisions that they have no obligation to follow?

In this special episode, Jeff interviews me about the best and worst things about appellate law. I talk about a couple of my favorite war stories, my approach to legal writing, and my favorite comedian.

Then to business, we discuss some recent cases, including appellate sanctions for trial court conduct, the nonappealability of arbitrator injunctions, and the publication of a recent family law opinion reversing a judgment for failing to provide a statement of decision.

You know about “de novo” and “abuse of discretion” and “substantial evidence.” But most attorneys have never heard of the “finding compelled as a matter of law” standard of appellate review. That is because it rarely comes up. The “compelled finding” standard only comes up when the party with the burden of proof (usually plaintiff) loses at trial, and argues on appeal that its case was so truly overwhelming that only an unreasonable fact-finder would have been left unpersuaded.

With that in mind, there are two interesting things about Missinato v. Missinato (D2d7 Apr. 15, 2022 no. B305989) 2022 WL 1124871 (nonpub. opn.). First, it is surprising because the court found the defendant’s statute-of-limitations defense so overwhelming that only an unreasonable person would be unpersuaded. Second, one of the panel was unpersuaded.

That seems awkward, no?

There are several things about this opinion I find really shocking. #AppellateLinkedIn, take a look and let me know your thoughts.

You know it is deadly to file an appeal too late. But there is also such a thing as filing an appeal too early. In the recent case Moreles v. Herrera (D4d1 Apr. 12, 2022 no. D077032) 2022 WL 1090255 (nonpub. opn.), the court decided to save the appeal. But the decision is at the court’s whim. At the end of the post, I will tell you about a similar case where the court decided it would rather not save the premature appeal, and dismissed the appeal filed too early—same as if it had been filed too late.

The Upshot: If you are presented with an order that ordinarily would be appealable but may not be final, use extreme caution. Your safest bet may be to file a notice of appeal, even if it is premature. But you are not done yet. Watch carefully for further orders or actions that will render the order final. And as soon as that happens, take a second, precautionary appeal. Do not rely on the court’s good graces to save a premature appeal.

David Greco, who heads up the appellate practice at the probate litigation firm RMO, LLP, shares with co-hosts Jeff Lewis and Tim Kowal some of the unique features and challenges in probate appeals:

👉 Fact challenges in probate appeals are uniquely difficult to win. Probate trials are typically bench trials, and appellate courts very rarely overturn a judge’s factual findings.

👉 The “stay killer” in Probate Code § 1310(b) can render many probate appeals moot. David explains why section 1310(b) is his “favorite provision of the Probate Code.” And should there be a similar “stay killer” in the CCP or Family Code?

👉 Fraught family relationships and charged emotions can make representation in probate appeals difficult.

👉 The large role played by professional fiduciaries—trustees, conservators, and guardians—raises unique ethical and due-process considerations. David explains how abuse of these institutional relationships can and does sometimes happen.

When I first read Art Works Studio & Classroom, LLC v. Leonian (D2d7 Apr. 12, 2022 no. B304461) 2022 WL 1090984 (nonpub. opn.), something seemed odd about it. I had to read it again to be sure: it is definitely odd.

In this commercial lease dispute, there is an appeal of an anti-SLAPP order against the tenant. The tenant claims on appeal that there was at least minimal merit for its interpretation of the estoppel certificates. But there was a subsequent judgment in a UD action that ultimately rejected tenant’s interpretation.

So you can guess what the landlord did next: The landlord moved to dismiss the appeal as barred by res judicata based on the UD judgment. And the Court of Appeal agreed. “Because these issues were fully litigated in the unlawful detainer actions, appellants are barred from relitigating these issues.”

Now here is the odd part. The Court of Appeal has granted the landlord’s motion to dismiss the appeal. So that means what happens next is the appeal is dismissed and the anti-SLAPP order is affirmed, right?

But that’s not what happened. The court did not want to affirm the judgment. So it did not dismiss the appeal. The court reversed the SLAPP order and the fee order. In other words: The respondent landlord loses.

How did this happen? In the post, I explain why I think the landlord’s mootness argument was technically wrong: the tenant’s appeal was not moot, but its case was. Also, the court apparently did not want landlord getting its fees against tenant in two cases. One was enough.

Still, this was a really weird way for the court to go about it.

The court sympathizes with the appellant in Ramirez v. Oxford Properties, Inc. (D4d2 Apr. 12. 2022 no. E076022) 2022 WL 1090899 (nonpub. opn.), whose two motions to vacate were denied. But the court holds that by listing only the second denial in the notice of appeal, the court could not reach the merits of the first denial.

The court had misgivings about the result: “We take no pleasure in dismissing Ramirez's appeal. She was denied a hearing on her claims in the trial court; now we are denying a hearing on her claims in this court.... [But w]e have no leeway to let Ramirez appeal from an order not specified in her notice of appeal, no matter how much it may appear to be in the interest of justice to do so.”

While I agree with the court’s outcome here (and its misgivings), this approach seems to be on the decline in recent years. In the article, I note two recent cases where courts have found creative ways to save similarly moribund appeals. Including time-travel — that is, ordering the trial court in the future to enter an appealable order dated in the past. (If this ploy was good enough to get Bill & Ted got out of jail, then apparently it is good enough for some appellate courts.)

CEB published my short article on McQueen v. Huang (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606, a decision that imposed appellate sanctions on a litigant based on “gamesmanship” in the trial court. Not in the appellate court — the appellate sanctions were for trial court conduct.

The article is available at CEB’s website here: https://lnkd.in/g8pchRjG

My original post on McQueen is here: https://lnkd.in/gphRKVgC

As I mentioned before, the appellate arguments here were not sanctionable by themselves. What earned the appellant and counsel sanctions was their conduct in the trial court. Beware engaging in litigation practice that the court might perceive as “gamesmanship.” If you ever need relief in the Court of Appeal, you could find yourself sanctioned.

The authors of the famous CalAttorneysFees.com blog, Marc Alexander and Michael Hensley, visit the California Appellate Law Podcast for episode 28 to discuss tips, traps, and best practices on attorney fee motions. We discuss why California’s attorney fees statutes can be so complicated, why reasonable fees sometimes get cut, and why unreasonable fees sometimes don’t.

Some key takeaways:

💡 Give the judge a roadmap. Explain: (1) Why you get fees; (2) Why your motion is timely; (3) What is the appropriate lodestar rate; (4) Why is the amount reasonable?

💡 Don’t be greedy! Inflated fee requests can ruin your credibility with the judge, and are likely to be severely chopped, or even denied entirely!

💡 Establish the necessity of litigation by discussing efforts to settle, and incivility by the other side.

💡 Make your objections as specific as possible.

Can you dismiss your lawsuit while it’s on appeal? No. That is the surprising holding of Curtin Maritime Corp. v. Pacific Dredge & Const. (D4d1 Mar. 22, 2022) no. -- Cal.Rptr.3d ---- 2022 WL 841760. The plaintiff had successfully opposed the defendant’s anti-SLAPP motion, and the defendant appealed the order denying its motion. The plaintiff decided to dismiss its claims. But the Court of Appeal held it could not dismiss until it was done with the appeal.

This holding is wrong on the law, as I explain in the post. And Prof. Shaun Martin agrees the holding “seems fairly revolutionary,” and links to “tons of cases that, in fact, got dismissed while the matter was on appeal.”

But now we have at least one published case that holds a plaintiff may not dismiss pending appeal. And when there’s a conflict — no matter how lopsided — trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”

Who needs the Second Amendment? Judge Kozinski once called the constitutional right to bear arms as the “doomsday provision”: that right to which a free citizens resorts when all other rights have failed. But what role does that right have left to play in a hyper power like the U.S.?

Second Amendment attorney Sean Brady, Jeff Lewis, and I discuss some modern examples when other rights have failed, at least temporarily: such as in the wake of Katrina, the L.A. riots, and the George Floyd riots.

Trial courts are required to make findings after certain proceedings. So is a court’s failure to make findings reversible error? A few years ago, the California Supreme Court answered No in F.P. v. Monier. Instead, to be reversible, the trial court’s failure to make findings must prejudice the appellant.

But the Fourth District held the opposite in a published opinion in Abdelqader v. Abraham (Mar. 10, 2022 D4d1) --- Cal.Rptr.3d ----. The trial court failed to make required findings, and on that basis, the Court of Appeal reversed. Although the respondent argued the error was harmless, the court disagreed. The court essentially concluded the failure to make findings was a structural defect — the precise argument the Supreme Court rejected in Monier.

Comment: While I strongly agree that litigants deserve reasons for a court’s decision, the court’s analysis in Abdelqader is unsatisfying. The court furnished no basis to distinguish the Supreme Court’s Monier holding. In fact, the court did not even mention Monier.

The Upshot: In any custody matter in which the presumption under Family Code section 3044 is triggered, look hard for any missing findings. Under Abdelqader, that defect is reversible per se.

Judge VanDyke recently criticized the 9th Circuit’s practice of granting en banc review in every recent pro-2nd Amendment decision—and denying review of every pro-gun control decision. And he’s right, says 2nd Amendment litigator Sean Brady. Sean talks with Jeff Lewis and me about his recent amicus brief on that very phenomenon, cataloguing 9th Cir. cases that:
🤔 Rely on the Heller dissent rather than the SCOTUS majority’s holding.
🤔 Hold there is no right to concealed carry even when there is no right to open carry, either.
🤔 Effectively hold there is no right to bear arms, only to keep them.

Legal commentators were taken aback by Judge VanDyke’s concurring opinion mocking the 9th Circuit’s inevitable en banc review of the majority opinion—also authored by Judge VanDyke. But Second Amendment litigator Sean Brady explains why he thinks Judge VanDyke will be vindicated in his criticism of the 9th Circuit’s trend of late on Second Amendment cases. And Jeff Lewis and I—while disagreeing on the merits of the gun rights question—also agree that satire and a bit of cheek can be valid tools to bring attention to an important issue that might otherwise be ignored.

Trial judges have wide latitude over the evidence that comes into the record at trial. The judge might sustain an objection to your smoking gun, or could allow damaging evidence despite your valid objections. These problems may be raised on appeal, but appellate courts give trial judges wide latitude on evidentiary rulings.

But not in M.H. v. C.H. (D5 Mar. 18, 2022 no. F082268) 2022 WL 817842 (nonpub. opn.). In a proceeding for a domestic violence restraining order, the trial court “shall consider the totality of the circumstances” in making its ruling. (Fam. Code, § 6301, subd. (c).) This includes considering “the affidavit or testimony.” (§ 6300, subd. (a).)

The Fifth District Court of Appeal held that the trial court’s refusal to consider declarations or evidence other than offered at the evidentiary hearing “is contrary to law. Application of this erroneous view was a prejudicial abuse of discretion.”

#AppellateLinkedIn: Note the ambivalent framing of the nature of the trial court’s error: the court frames it as both “legal error,” and as “abuse of discretion.” Why do courts insist on doing this?

The appellant in Singh v. Bains (D5 Mar. 10, 2022 no. F082506) 2022 WL 714679 (nonpub. opn.) was in pro per, so don’t read too much into this, but something does not sit right about this memorandum opinion (an abbreviated form of opinion when a cause raises “no substantial issues.”)

The trial court entered a civil harassment restraining order against Bains. Bains appealed. But sometime later, the trial court entered a second, identical restraining order. It even expires on the exact same date. (You might be wondering: what, exactly, was the point of the second order, then?)

Noting that Bains did not appeal the second restraining order, the court denied the appeal from the first restraining order as moot: “If we reversed the challenged CHRO, defendant would still be subject to the second CHRO. Therefore, this appeal is moot and should be dismissed.”

Here is why the court’s opinion does not sit right with me: Why is the trial court entering duplicate identical restraining orders? What was the point of a second, identical restraining order, other than to spring a procedural trap on the appellant on appeal? And doesn’t the appellate stay under Code of Civil Procedure section 916 render the second identical order void?

Attorney Ryan McCarl, author of Elegant Legal Writing, tells Jeff Lewis and me the top three things lawyers do wrong in their briefs:
(1) Legalese (are you really still using legalese?)
(2) Long sentences with no clear structure or emphasis
(3) Failing to mind the “cognitive load” of your reader.

The appellant in In re Marriage of Critzer (D6 Mar. 11, 2022 no. H047809) 2022 WL 736174 (nonpub. opn.) made not one, not two, but three mistakes in his notice of appeal. And he lost his appeal because of those mistakes. Here is what he did wrong:

1. He was appealing two orders, but only listed the date for one of them.

2. He checked the wrong box for the legal authority supporting the appeal.

3. He failed to attach the order to his Civil Case Information Statement.

Courts liberally construe the notice of appeal so that appellants don’t lose their appeals for these kinds of technical reason. But there are limits, and the appellant exceeded the limit here.

When we covered some of the tips and pitfalls of family-law appeals on episode 6 of the California Appellate Law Podcast, it became one of our most popular episodes. So we invited Victoria Fuller, a certified appellate specialist focusing on family law, to join us for another installment.

Victoria discusses with Jeff Lewis and me:
• The unique post-judgment relief available under Fam. Code, § 2122 for fraud, duress, mistake, and financial-disclosure violations;
• Expanded relief on motions for reconsideration; and
• The critical statement of decision process.

Despite these remedies, why do family-law appeals feel like such an uphill climb?
(Answer: because family-court judges have so much discretion even they don’t realize the full extent of it.)

In defense of the prohibition on citing unpublished opinions, attorney Ryan McCarl notes to Jeff Lewis and me that, so long as California appellate judges continue “nonpublishing” opinions on the assumption practitioners not understand them to be real judicial decisions, we’d have to change their assumption before we change our understanding.

Some recent cases have suggested appellate courts might be more receptive to challenges to arbitration awards than in the past. But the Second District Court of Appeal swung hard in the other direction in *McQueen v. Huang* (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606. The court sanctioned the appellant and his counsel over $38,000 for challenging an arbitrator’s award for legal error. Mere legal error is not a ground to overturn an arbitration award, so the appeal was doomed from the start. The court also pointed to appellant’s “gamesmanship” in the trial court.

The Upshot: Appellate sanctions usually are a high hurdle, and on the quality of the appellate arguments alone, I would not have rated sanctions remotely likely. The lesson of this opinion, then, is that the appellant’s conduct in the trial court can play an outsized role in the imposition of appellate sanctions. If the appellant’s conduct in the trial court creates an impression that the unsuccessful appeal is part of a pattern of driving up the expense of the litigation, then this can be a grounds for sanctions almost by itself.

Question for #AppellateLinkedIn: Does this opinion suggest that conduct that might not warrant sanctions in the trial court could warrant sanctions in the appellate court? And if so, is this a problem?

Here is a memorable case that illustrates how to get audio and video footage into evidence, how to challenge admission of that evidence—and how not to challenge it.

A crossbow-wielding defendant at trial cleverly attempted to prevent admission of audio and video footage proving he fired arrows into the plaintiff’s law office. Although unrepresented at trial, the shrewd defendant in Quintero v. Weinkauf (D1d4 Mar. 3, 2022 no. A159812) 2022 WL 620722 (nonpub. opn.) was keenly aware of three important things about using audio and video footage at trial: (1) it must have proper foundation; (2) audio recorded without consent generally is illegal; and (3) it may implicate the right against self-incrimination.

But none of the defendant’s strategies worked for one simple reason: he was transparently attempting to lie to the court. The plaintiff recovered a judgment totaling $2.2 million against the defendant (who was found to be worth $1.5 million).

“I’m not a prophet,” Judge Lawrence VanDyke wrote in his controversial concurring opinion in McDougall v. County of Ventura. Second Amendment attorney Sean Brady disagrees. Joining Jeff Lewis and me, Sean says Judge VanDyke will be proven correct: the Ninth Circuit in the last several years has granted en banc review of every panel decision favorable to the Second Amendment, and has denied review to every unfavorable decision.

(And a few days after taping, On March 8, 2022 the Ninth Circuit granted en banc review of McDougall.)

Sean explains how the Ninth Circuit, and other circuits, have adopted a line of Second Amendment analysis that follows more closely Justice Breyer’s dissent in D.C. v. Heller than the Supreme Court’s majority. That is why, after writing the opinion for the panel, Judge VanDyke also wrote a concurrence, reaching the same conclusion but using this alternative line of analysis.

But wasn’t Judge VanDyke’s concurrence jarring and off-putting? Perhaps. And it is an unusual style for a judge to resort to. But all of us agreed that Judge VanDyke meant it, quite deliberately, to be at least slightly offensive: an affront to the modern taste for cool and logically seamless forms of persuasion. Judge VanDyke genuinely believes that, however it happened, the train has gone off the tracks, and it will take some shoving and heavy breathing to put it back again.

No wonder the attorney in Elias v. Jensen (D4d3 Mar. 3, 2022 no. G060098) 2022 WL 620013 (nonpub. opn.) moved to withdraw: her client had “demoted [her] to co-counsel,” the client was filing documents under his own name, and the client had filed a State Bar complaint against her. So it is no wonder the Court of Appeal agreed with the trial court’s order allowing the attorney to withdraw. After all, “if Elias’s allegations against [the attorney] are true...Elias should not be represented by a conflicted attorney with whom he has a present disagreement.”

But why, then, did the Court of Appeal dismiss the appeal on nonappealability grounds, rather than just affirm on the merits?

While there are some good arguments that orders are not appealable, there are also some very good arguments that they are. Specifically, an order granting withdrawal (which is held nonappealable) is not different in kind from an order granting disqualification (which is appealable).

So how can the courts maintain, with any logical consistency, that orders granting disqualification are appealable, but orders granting withdrawal are not?

Whether you win or lose a bench trial, by the time you’ve finished you want the judge to give a written explanation for the decision. And the rules say you are entitled to one. But beware: The rule only says you are entitled to a “tentative” decision. Do not be misled into thinking that “tentative” means a final decision is on the way: If you do not request a final “statement of decision,” you do not get one. And on appeal, the “tentative” has all the force and effect of a postcard.

Both parties in Unified Real Estate Investments, LLC v. Thong (D2d1 Mar. 1, 2022 no. B301162) 2022 WL 602251 (nonpub. opn.) requested a statement of decision. Or at least, they thought they did. But the Court of Appeal held the request was too equivocal (counsel said the statement of decision should “perhaps” cover the issues in the trial brief). The court also held that the requirement to identify the issues to be covered in the statement of decision is not satisfied by general reference to the issues in the trial briefs.

In the post, I outline the steps required to adequately request the statement of decision. I also referenced some of the nasty tricks courts can play on litigants in this procedure.

In their article calling for relaxation of the no-citation rule, appellate attorneys David Ettinger and Dean Bochner point to this interesting quote explaining how much effort goes into a published appellate opinion: it “is an exacting and extremely time-consuming task” and “few, if any, appellate courts have the resources to write precedential opinions in every case that comes before them.” (Hart v. Massanari (9th Cir. 2001) 266 F.3d 1155, 1177.)

But doesn’t every case deserve the same quality of consideration?

How would the reasoning be different if Congress were to say, “you know, this bicameralism and presentment business is an exacting and extremely time-consuming task, and really, what legislature has the resources to go through all that for every important policy matter that comes before it?”

(Of course, a federal court would respond: “No one is saying you cannot cite to unpublished cases. We just don’t like it very much, is all.” But California Rules of Court rule 8.1115 absolutely prohibits any citation to unpublished opinions.)

An impassioned and personal closing argument is often your chance to persuade the jury. But get too personal and you could commit a “golden rule” violation (i.e., you cannot ask the jury to “put yourself in my client’s shoes”). So hats off to the plaintiff’s attorney in Chen v. Herschel (D2d2 Mar. 2, 2022 no. B306200) 2022 WL 610658 (nonpub. opn.), who deployed a clever rhetorical device that put the jury in the plaintiff’s shoes, yet avoided a “golden rule” violation. The result was an $18 million verdict for the client.

In Chen, the defendant drove her truck into the car driven by plaintiff and her mother. The collision crushed the plaintiff’s mother, causing internal injuries that resulted in an agonizing several moments before her death. The defendant first drove away, then apparently returned, and dragged the mother several feet away, while the plaintiff, immobilized by the accident, pleaded with the defendant to stop. The mother was later transported to the hospital where she died.

The plaintiff’s closing argument, as you can imagine, sought to hit some emotional notes, and this drew a “golden rule” objection from the defense counsel. In effect, the jury heard counsel reference memories of “your” mother being killed 16 different times, and to consider what that would be like. Wasn’t this a “golden rule” violation?

No, held the court. Why? Because although counsel said “you” and “your” 16 different times, due to counsel’s shrewd rhetorical device setting up a hypothetical involving the plaintiff, all the “yous” and “yours” technically referred to the plaintiff. Not to the jurors.

A very effective argument. For which the jury returned a verdict of $18 million.

Here are two ideas for getting round the “no-citation rule” that prohibits California attorneys from citing unpublished cases. But careful! Only one of them is actually a good idea.

First, I ask appellate attorneys David Ettinger and Dean Bochner if attorneys may reference an unpublished case the same way a recent published case did: by naming the appellate district that issued the on-point unpublished case. (Bad idea, don’t try it it. I realized it was probably too mischievous when I couldn’t even say it with a straight face.)

Second, simply crib the persuasive reasoning of the unpublished case. (This gets a thumbs-up from both David and Dean and co-host Jeff Lewis.)

Here is a question I did not realize had not been answered about appellate stays and attorney-fee awards. When the losing party appeals an order that gives rise to a motion for fees, does the appellate stay deprive the court of jurisdiction to award fees? In civil cases, the answer is no. But in probate cases, we do not have an answer one way or another.

And we still don’t, because the Court of Appeal ducked the question In Conservatorship of Bower (D4d3 Feb. 25, 2022 no. G059112) 2022 WL 571011 (nonpub. opn.).

In that conservatorship case, the probate court found the conservator had incurred expenses in bad faith. The court ruled the conservatee’s widow was entitled to attorney fees, the amount to be determined by subsequent motion. The conservator filed an appeal of the order on the accounting, including the finding of bad faith giving rise to attorney fees. The conservator then argued that, based on the appeal and the resulting appellate stay, the trial court lacked jurisdiction to award fees.

But by this time, the appeal of the underlying accounting award and finding of bad faith had been affirmed. So the court ducked the section 1310 stay question. The court explained that “The most we could do with respect to this order, even if Andrea is correct, is to return the order to the probate court to be reissued – a pointless exercise.”

Comment: I disagree that it would be a “pointless exercise.” At a minimum, postjudgment interest has been accruing on the fee award since before the appeal of the underlying order was affirmed. If the appellant is correct that there was no jurisdiction to enter the award before affirmance, then that postjudgment interest also is void.

Reviewing some 9th Circuit and California appellate cases of note from early 2022, Jeff Lewis and I discuss these juicy issues:

💡 Can the 6th Amendment right to speedy trial be indefinitely postponed due to Covid? (Yes, if the defendant is not incarcerated, says the 9th Circuit in *United States v. Olsen*.)

💡 Can the statutory right to a timely conservatorship jury trial be waived? (Yes, even if the judge kind of pushes you around, so stiffen up that spine!)

💡 Can the Church of Scientology compel arbitration of a dispute arising after members leave the church and allege Scientologist actor Danny Masterson rapes them? (No, but the Supreme Court had to step in and tell the Court of Appeal to take a little more time with the writ petition.)

💡 Can a pre-litigation demand cross the line into extortion, and thus fail to qualify for protection under Civil Code section 47’s litigation privilege? (Yes, if the attorney threatens to disclose the allegations to blow up the defendant’s potential merger.)

Did you know you are forbidden to cite unpublished cases — even when urging the Cal. Supreme Court in a petition for review that there is a split of authority? Appellate attorneys David Ettinger and Dean Bochner note that this use of unpublished cases are routinely employed, but it violates California Rules of Court rule 8.1115.

They explain to Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that the rule should be amended so attorneys need not risk becoming “scofflaws” just to continue engaging in this customary and needful practice.

Legal academic-turned-practitioner Ryan McCarl has some writing tips for lawyers, including one you haven’t heard before: Add more white space to your briefs. And remove clutter generally. And this surprised co-hosts Jeff Lewis and Tim Kowal: those vertical lines on your pleading paper? Get rid of them. They’re unnecessary and they make the reader feel crowded.

(Disclosure: I haven’t mustered the courage yet to remove the vertical lines from my pleading template.)

Sometimes appeals are filed prematurely. Some classic examples are appeals taken from on order sustaining a demurrer (you need to wait for the dismissal), or from an order granting summary judgment (you need to wait for the judgment). The Court of Appeal may choose to “save” your premature appeal at treat it as taken from the subsequent judgment. But there is a condition, as the court recognized in Ortiz v. Related Mgmt. Co., L.P. (D2d1 Feb. 23, 2022, no. B307902) 2022 WL 537930 (nonpub. opn.).

That condition is: If you want to court to treat your appeal as taken from the subsequent judgment, make sure there is a subsequent judgment.

While the court was rather fussy about the requirement here, in the post I mention some of the creative ways that other courts — if sufficiently motivated to reach the merits — will save an appeal. My favorite: the appellate court can order the trial judge to enter a nunc pro tunc judgment, and then the appeal can proceed as though taken from that future judgment. (Someone, at last, found a way to apply the deep time-travel lessons of Bill and Ted’s Excellent Adventure!)

Question for #AppellateLinkedIn: Do appellate courts in other states get this creative?

This recent case involving the underappreciated topic of appellate stays has me heartened on one point, but dismayed on another. What is heartening: Appellate stays have teeth. In Stupp v. Schilders (D1d2 Jan. 25. 2022 no. A161177) 2022 WL 213774 (nonpub. opn.), the trial court imposed a rather large discovery sanction against Stupp totaling over $27,000. The court stayed the sanctions order pending appeal. Undaunted, the respondent’s attorney, Ester Adut, applied for a writ of execution anyway. The trial court imposed $1,050 in sanctions under Code of Civil Procedure section 177.5, and the sanctions were affirmed on appeal.

So the appellate stay was vindicated. That is the good news.

What is dismaying about Stupp is the court ignored the rule that requires a bond to effect a stay of a money judgment on appeal. The maximum stay the court could have ordered here could extend only until 10 days after the deadline to file a notice of appeal.

By operation of law, then, the stay order here had expired by the time Adut sought the writ of execution. But Adut did not raise that argument in her appellate brief. And the court did not address it, either.

The Upshot: Pay close attention to the appellate bond and stay rules. They are complicated. And you cannot rely on the courts to understand them for you.

A statement of decision is the court’s formal explanation of the factual and legal basis for its decision. In some cases, the court is required to give a statement of decision. And in San Francisco v. Hale (D1d2 Feb. 17, 2022 no. A161503) 2022 WL 483925, the failure to provide a statement of decision was reversible error.

The appellant in Hale was a mother disputing a visitation order. The court had found the father committed domestic abuse, so under Family Code section 3044, that created a rebuttable presumption that custody was detrimental to the child. The father did not rebut that presumption, yet the court ordered nearly equal-time visitation — in effect, joint custody.

The mother timely requested a statement of decision, but the court said, “I'm not going to issue a statement of decision on this case.”

The Court of Appeal reversed. The trial court’s failure to issue a statement of decision was error. And because the trial court gave no explanation that could support its order, the Court of Appeal found the error was prejudicial.

Attorneys are prohibited under CRC rule 8.1115 from citing unpublished cases for any reason. But not even the Supreme Court takes the rule seriously. Practitioners routinely cite unpublished cases in petitions for review to demonstrate the existence of splits of authority, even though rule 8.1115 clearly prohibits this practice.

Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their two proposals to amend rule 8.1115, and allow citations to nonpubs in appropriate circumstances.

When a defendant fails to answer a complaint, the next step is entry of default. At that point, the defendant may move to vacate the default. But usually, the defendant will wait until after the judgment is entered, and then move to vacate the judgment.

Technically, you can do both. But don’t. That is what the defendant tried in HFL Law Group v. Schermer (D2d3 Feb. 10, 2022 no. B309020) 2022 WL 406947 (nonpub. opn.). The defendant moved to vacate the prejudgment entry of default, lost that motion, and then when default judgment was entered, moved to vacate that, too.

The Upshot: Don’t make the same argument in successive motions to vacate. When the defendant lost the first motion to vacate, and the judgment was entered, the issues were fully and finally adjudicated. At that point, the defendant’s remaining move was to appeal the judgment. The defendant did not appeal, and instead filed a motion to vacate the judgment, arguing the same grounds as before.

Her appeal of the denial of her second motion was timely, and the order was appealable, but to no avail: the issues were already final and the Court of Appeal lacked jurisdiction to disturb them.

Nosing out whether an order is appealable can be difficult. But we know injunctions are appealable because they are listed explicitly in Code of Civil Procedure section 904.1, the appealability statute. But a preliminary injunction issued by an arbitrator is not. They are not a final “award,” and thus not appealable. That is the holding of *Kirk v. Ratner* (D2d7 Feb. 10, 2022) --- Cal.Rptr.3d --- (2022 WL 405422).

The parties settled their show business dispute, agreeing to confidentiality. Worried that Kirk would breach confidentiality, the movie executives initiated arbitration. The arbitrator issued a temporary restraining order followed by a preliminary injunction. The movie executive plaintiffs were not required to post a bond for the injunction.

Kirk petitioned the superior court to vacate the injunction. The court dismissed the petition on grounds it lacked jurisdiction because the preliminary injunction was not an “award” under Code of Civil Procedure section 1283.4.

The Court of Appeal dismissed Kirk’s appeal, holding both that the preliminary injunction was not an “award” subject to a petition to vacate, and the order dismissing the petition was not appealable for the same reason.

This holding makes preliminary injunctions in arbitration all the more devastating. Not only are the beyond review, but the losing party loses the only statutory safeguard — a bond.

Attorney and author Ryan McCarl joins Jeff and me to discuss his forthcoming book, *Elegant Legal Writing*, and his career through academia into private practice. Ryan tells Tim and Jeff the most common mistakes in attorneys’ briefs, which include legalese (why are you still using legalese?), and providing too little white space on the page — white space bucks up your reader to plod on.

Ryan also offers a thoughtful caveat to my proposal to abolish Rule of Court 8.1115, the “no citation” rule concerning unpublished opinions.

A nonsuit is one of the few exceptions to the ordinary presumptions to affirm on appeal. And so it bore out in *Newnes v. F&M Trust Co. of Long Beach* (D2d1 Jan. 11, 2022 no. B303725) 2022 WL 98179 (nonpub. opn.). Newnes’ claim for punitive damages was dismissed on nonsuit after opening argument at trial — before even an opportunity to present evidence.

This was reversible error, the Court of Appeal held. In short, if reasonable minds can disagree, nonsuit should not be granted. (Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 60-61.)

So it is ironic that there was a dissent. Presiding Justice Rothschild stated she did not believe any reasonable jury could have found punitive damages on the plaintiff’s proposed evidence.

But if reasonable appellate justices can disagree, as they clearly did here, then how can the dissent argue no reasonable jury can disagree?

Appellant expert Myron Moskovitz explains why unpublished opinions are a sleight of hand. Courts do one thing in one case, and the opposite in another case, and then tell you only the first case is “precedent” because the second was not “published.” But ALL cases are published online. We can all we what the court is doing. “Unpublishing” cases is a bad magic trick.

If you won your case and you have a right to recover attorney fees, mind the deadlines. The prevailing parties in Wallace v. Alameda Cnty. Mgmt. Emps. Ass'n (D1d5 Jan. 25, 2022) Case No. A162044 (nonpub. opn.) blew the deadline.

The petitioners, who had won a writ of mandate in the trial court, actually had a couple of decent ways to salvage the situation. But they were not aware of them until it was too late. For example, the petitioners argued the order granting the writ did not fully dispose of the case because they still had another case for declaratory relief.

Good argument! Except for one thing, as the court noted: “But in their motion for attorney fees, appellants argued they ‘achieved complete success and a full remedy in this action.’” Whoops.

Appealing a sanctions order? If sanctions were awarded against the attorney, be sure the appeal is made out in the attorney’s name. The appeal on behalf of the clients in Lafferty v. Fleetwood Motor Homes of Cal., Inc. (D3 Jan. 26, 2022) no. C059562, was dismissed because the attorney was not listed in the notice of appeal.

Rubbing the attorney’s nose in it, the Third District Court of Appeal held the sanctions award was improper on legal grounds, and must be reversed. But the sanctions against the attorney remained.

But Lafferty is probably wrongly decided. The California Supreme Court recently directed courts to be more lenient than this, and to excuse the omission of the attorney in a notice of appeal of a sanctions order. In the January 2020 opinion in K.J. v. Los Angeles Unified School Dist. (Cal. Jan. 30, 2020) 8 Cal.5th 875, the Court held that the omission of an attorney from the notice of appeal of a sanctions order was not fatal.

The Upshot: Do not forget to name all appellants in the notice of appeal. But also be prepared to discuss the doctrine of liberality in construing the notice of appeal, and cite K.J. if any defects in the notice of appeal arise.

CEB has published my short article, “A Trap for the Unwary: Order on a Post-Settlement Fee Motion May Be Unappealable.” The link is below. The article was originally published on my blog ( https://bit.ly/3gklJjJ ). The article covers the published opinion in Sanchez v. Westlake Services, LLC (D2d7 Jan. 18, 2022 No. B308435) 2022 WL 1522087.

The upshot is when you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable.

And there are many trap doors when your appeal is mixed up with a dismissal.

Here is the link to the CEB article: https://bit.ly/35AvdFp

Here is the link to the original blog post: https://bit.ly/3gklJjJ

What do judges think about the Covid impacts on court proceedings? Jury trials were put on hold in the early months, and only resumed in fits and starts. In-person appearances began again last year, but are being tabled again.

At least as it concerns criminal jury trials, you can get a good sampling of judges’ disparate feelings in *United States v. Olsen*, 21 F.4th 1036 (9th Cir. Jan. 6, 2022), where the Ninth Circuit recently denied en banc review of a panel decision reversing a dismissal for failing to comply with the Speedy Trial Act.

Tensions run high in each of the four opinions: the majority per curiam decision reversing the district court and reinstating the case, two concurrences by Judges Murguia and Bumatay, and a dissent by Judge Collins. There is too much going on to fairly summarize all of it. So in the article I only cover a few things that jumped off the page at me, including:

- No 6th Amendment analysis at all in the majority opinion;
- The 9th was displeased with the unseemly collateral dispute among judges of the Central District;
- “Impossibility” of jury trials was denied by a “General Order” in which the defendant had no input — is this constitutionally problematic? (Judge Collins thinks so);
- Should a Speedy Trial be denied because the defendant obtained prior continuance? What if it was to review the voluminous evidence the government amassed in six years of pre-indictment investigation?

Ultimately, while I agree with Judge Bumatay that this is a close call, I am persuaded by Judge Collins’ dissent. At a minimum, the Ninth Circuit should have granted *en banc* review here.

In “lemon law” cases under the Song-Beverly Act, the “prevailing party” is entitled to attorney fees. But what is a “prevailing party”? Is a plaintiff who recovered $1 in nominal damages a prevailing party entitled to attorney fees (and over $680,000 in fees at that)? In a published opinion, the Court of Appeal in *[Duff v. Jaguar Land Rover North America, LLC](https://bit.ly/3Gspq1B)* (D4d1 Jan. 27, 2022 no. D078100) 2022 WL 246853 (___ Cal.Rptr.3d ___), said *no*.

But the Court of Appeal held that the CCP 1032 “net monetary recovery” standard does not apply in all cases, and does not apply to Song-Beverly cases. Instead, a “pragmatic” approach applies, including asking who achieved their litigation objectives.

What is a little awkward about the opinion is that the Fourth District Court of Appeal disapproved its own earlier decision where it held the mechanical standard under section 1032 did apply. Which is fine. But then why fault the trial court for following what was, until now, perfectly good law?

The fee order was reversed with instructions to evaluate the “prevailing party” determination based on the correct “pragmatic” standard.

Jeff Lewis and Tim Kowal round up some recent California appellate cases of note:

➢ Singman v. IMDB.com, bookmark this published opinion holding that legal propositions in a brief without a citation will be ignored.

➢ Center Street v. Superior Court involving a rare summary affirmance.

➢ Alexi & Ani LLC v. Warren, allowing an attorney sanctions appeal to proceed though the attorney was not listed on the notice of appeal.

➢ Weischadle v. Vo, involving a dissent over whether a court reporter is really needed at oral argument.

➢ In re Purdue Pharma, an OxyContin case in which a bankruptcy settlement was overturned on appeal.

➢ State of California v. So. Cal. Edison, taking the majority view in the split over what kind of collateral orders are appealable.

Doctors who do not conform their practice to the “standard of care” risk disciplinary action from the state medical board. But not only is the development of the “standard of care” opaque and mysterious, it is often quite wrong. Appellate attorney Tim Kowal and health care litigator Rick Jaffe, Esq. discuss two presidents who died because of the “standard of care”: George Washington from bloodletting, and James Garfield from sepsis.

In 2021, the California Supreme Court issued a surprising opinion. The Court held that an untimely appeal is not an absolute bar to appellate jurisdiction, at least in juvenile dependency cases. (*[In re A.R.](2021) 11 Cal.5th 234.)

The reason this was surprising is because, until then, a uniformity of California cases had held that an untimely appeal *was* an “absolute bar” to appellate jurisdiction.

But *A.R.* had noted there was a statutory right to “competent counsel” and a habeas right in dependency proceedings, so the Court would let slide the four-day untimeliness.

The recent case of *In re B.P.* (D5 Jan. 26, 2022 no. F082863) 2022 WL 224811 (nonpub. opn.), took *A.R.* quite a bit further. That case involved a four *month* untimeliness. Also: no habeas petition. The court still allowed the untimely appeal.

As I said before discussing *A.R.*, courts will continue citing the "jurisdictional" prohibition against considering untimely appeals. But, we may continue to wonder whether they are in earnest.

This one seems wrong to me.

This is a published case in *[Conservatorship of Joanne R.] (D2d7 Dec. 17, 2021 no. B310906) 72 Cal.App.5th 1009. The appellant was put under a year-long conservatorship. Under the Lanterman-Petris-Short Act governing conservatorships, the appellant was entitled to a jury trial, to commence within 10 days of demand, challenging the establishment or extension of the conservatorship. (Welf. & Inst. Code, § 5350.) So she invoked that right.

But here is what the trial judge says about the appellant’s right to commence a jury trial in 10 days: “if you would like to have a court trial with the judge making the decision we can do that today. If you would like to have a jury trial then we can do that as well, but we won't be able to do it today. We can reschedule and do that in November.”

This is in early February. That’s nine months into a 12-month conservatorship.

The appellant responds “I would prefer a jury trial, but I don’t want to wait until November.” Then after a short colloquy, says, “I think I want to go ahead today and do it.”

Is that a voluntary waiver of the appellant’s right to a jury trial? The Second District Court of Appeal says yes (but with reservations).

I think that is wrong, as I explain in the article. If the Legislature affords a right, it ought to honor it. The fact that the pandemic has made it difficult is not an excuse. Unless and until the Legislature decides to abrogate the right, the courts’ duty is to enforce it.

Recent months and years have seen a surge in medical-board investigations of doctors whose individual medical advice strays from public health policies. Health care litigator Rick Jaffe discusses the tension these medical board interventions create by promoting public health policy, on the one hand, and chilling the practice of individual medicine, on the other hand.

Many attorneys are missing their best opportunity to persuade the appellate court. Appellant expert Myron Moskovitz talks with Tim Kowal and Jeff Lewis about the importance of the introduction in appellate briefs. The introduction should summarize your arguments and not belabor detail. And it should be a roadmap to the all-important statement of facts.

What happens when a judge dies or becomes unavailable before the entry of a judgment? A mistrial resulted, and was affirmed, in *Marriage of Stone* (D2d2 Jan. 24, 2022 no. B297778) 2022 WL 202815 (nonpub. opn.).

The trial judge presided over the first phase of a dissolution proceeding. After the trial, the judge issued a tentative decision, held a hearing on the parties’ respective proposed statements of decision, and indicated he would consider modifying certain language. But the judge passed away before entering a final statement of decision or entering a judgment. So the presiding judge declared a mistrial.

On appeal, the appellant-wife argued the mistrial was error and the presiding judge should have entered a judgment on the trial judge’s findings in the intended decision. She had a great case on point, holding that under Code of Civil Procedure section 635, the presiding judge may enter a judgment on an unavailable trial judge’s intended decision. But ultimately the court held it was not close enough, and affirmed.

Confused by all the challenges to the vaccine mandates? Health care litigator Rick Jaffe sets them out in two main types: (1) challenges to the state police power; and (2) challenges to the federal agency and police power. (And then a third: religious conscience challenges.)

An order enforcing a settlement agreement is an appealable order, but what about an order *denying* enforcement of a settlement agreement? In a previous unpublished opinion (see Tim Kowal, ”[Denial of Motion to Enforce a Settlement Held Appealable]....” Dec. 20, 2021), one court reminded the bar that parties really ought to have orders on settlement-enforcement matters under Code of Civil Procedure section 664.6 entered as judgments: that way, there’s no doubt as to their appealability. But that court gave some leeway and concluded there was “no functional difference” between a grant and a denial of costs.

But the Second District gave no such leeway in its published opinion in *[Sanchez v. Westlake Services, LLC] (D2d7 Jan. 18, 2022 No. B308435) ___ Cal.Rptr.3d ___, 2022 WL 1522087. In *Sanchez*, the parties settled a consumer rights lawsuit concerning the sale of a car, with the settlement providing that the plaintiff may seek a motion for attorney fees. The trial court denied fees as barred by the sale contract. The plaintiff appealed the order denying her fees.

***The Upshot:*** When you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable.

And there are many trap doors when your appeal is mixed up with a dismissal.

Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their proposal to amend California Rules of Court 8.1115, the rule that prohibits the citation to unpublished opinions. David and Dean note that, despite rule 8.1115 near-categorical ban, the courts in practice already condone such citations in some contexts, most notably petitions for review.

David also discusses the California Supreme Court’s “shadow docket” — precedential opinions that are issued without full merits briefing or oral argument.

From the “*did they really have to publish this?*” files:

You cannot avoid anti-SLAPP fees by dismissing the offending allegations. That is already settled law. But in *[Catlin Ins. Co. Inc. v. Danko Meredith Law Firm, Inc.] (D1d4 Jan. 11, 2022 no. A160358) ___ Cal.Rptr.3d ___ 2022 WL 101840, the plaintiff dismissed its complaint after the defendant filed an anti-SLAPP motion. The court held, in a published opinion, that the trial court did not err in refusing to rule on the anti-SLAPP motion, thus never establishing the predicate to the defendant’s right to anti-SLAPP fees.

After you learn the facts, you will understand why both the trial court and the appellate court were not excited about rewarding this defendant with anti-SLAPP fees. But as Justice Brown notes in dissent, the majority should be more mindful of the problems this holding will create for worthy anti-SLAPP movants in the future.

Ultimately, what seems to me incongruous about the *Catlin v. Danko* rule — which requires anti-SLAPP movants to file a separate fee motion in the event the plaintiff voluntarily dismisses — is based on facts that *disfavor* the anti-SLAPP movant (because the anti-SLAPP motion was probably frivolous). This seems to me an odd way to develop case law interpreting a statute that is supposed to *favor* anti-SLAPP motions.

A trial court’s rulings on evidentiary objections are tough to reverse on appeal. But what about when the rulings are reflexive and not really supported by any analysis? In some cases, such “blanket” rulings may be found to be an abuse of discretion and reversed on appeal.

The appellant argued improper “blanket” rulings were the reason an anti-SLAPP motion was granted against him in *[Foley v. McElroy](https://casetext.com/case/foley-v-mcelroy?resultsNav=false&jxs=ca&tab=keyword)* (D4d1 Dec. 6, 2021 no. D077299) 2021 WL 5766572 (nonpub. opn.). But the Court of Appeal disagreed and affirmed.

Also: remember that anti-SLAPP orders are directly appealable. Do not wait around for a judgment.

If you have finished briefing your appeal, you have already missed the best opportunity to prepare for oral argument. Appellate expert Myron Moskovitz tells Jeff Lewis and me why the time to begin preparing for oral argument is while drafting your reply brief.

When you have a judgment against a shell entity, you can amend the judgment to name the sole shareholder or member. That is called piercing the corporate veil. Until a few years ago, it didn’t work in reverse: if you have a judgment against a judgment-proof business owner, you can’t add the entity as a judgment-debtor. (Postal Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1513, 77 Cal.Rptr.3d 96 (Postal Instant Press).) Except in 2017 in Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 221 (Curci), the same appellate court said you could do that — that is, at least if you were dealing with an LLC. (Curci did not apply to corporations.)

But what if the LLC has innocent members? It wouldn’t be fair to innocent LLC members to add the LLC to a judgment because of whatever some other member did. That is the issue that came up in Blizzard Energy, Inc. v. Schaefers (D2d6 Nov. 18, 2021 no. B305774) 71 Cal.App.5th 823. And the court answered the question by holding: Yes, the LLC may be liable for the judgment, but no, we can’t offer any suggestions how it could be done consistent with an innocent member’s rights. The court remanded for the trial court to think about that.

After you file the notice of appeal and the critical designation of record in the trial court, you have to file the Civil Case Information Statement in the Court of Appeal. The appellant’s attorney was sanctioned for filing an incomplete CCIS in *[Kuenzinger v. Doctors Med. Ctr. Modesto](https://casetext.com/case/kuenzinger-v-doctors-med-ctr-modesto#pa74)* (D5, Dec. 22, 2021 no. F082272) 2021 WL 6064094 (nonpub. opn.) It was incomplete because the attorney failed to check one of the boxes.

This is an unusual case because the same attorney had acknowledged another very similar appeal just last year was entitled to calendar preference. So the Court of Appeal concluded the attorney knew this appeal was entitled to preference, too, and so the failure to designate it as such was sanctionable.

The court imposed a $500 sanction, payable “personally” by the attorneys.

Still, take the Civil Case Information Statement seriously. Because the court will.

In the article, I include a list of the types of appeals subject to mandatory calendar preference.

In a terse opinion, the Court of Appeal recently rejected an appeal on the basis that, other than referencing the appealability of the judgment, “[n]o other legal citations appear in [the appellant’s] brief.” The Second District in *[Singman v. IMDb.com, Inc.](https://casetext.com/case/singman-v-imdbcom?resultsNav=false&jxs=ca&tab=keyword)* (D2d8, Dec. 20, 2021, No. B307783) 2021 WL 5997923 (pub. opn.) The court noted the only entry in the table of contents was Code of Civil Procedure section 904.1, an appealability statute that obviously does not impeach the judgment.

That’s not surprising. I wasn’t even going to mention the similar case in *[Freitas v. Clear Recon Corp](https://casetext.com/case/freitas-v-clear-recon-corp-2?resultsNav=false&jxs=ca&tab=keyword)* (D1d1, Dec. 8, 2021, No. A160762) 2021 WL 5822382, where an appeal of a dismissal following a demurrer failed because of lack of citations to the record.

But the First District did not publish *Freitas*, probably because that proposition is already settled, and this was a pro per litigant.

So why did the *Singman* court decide to publish? The faux pas there in failing to cite legal authority also was committed by a pro per litigant. The opinion is only two pages long. There is no analysis of the merits. There is no discussion what the case is about. The court notes the appellant’s legal arguments are not supported by legal citations, but does not say what those arguments are. The court concludes its published opinion with this line: “An absence of legal authority forfeits an appellant's cause.”

As I explain in the post, because there is so little context surrounding the holding in *Singman*, I suspect it will be abused. Going forward, even self-evident propositions in a legal brief may be met with a small-minded refutation citing *Singman* if the proposition does not include a citation.

In this timely episode of the California Appellate Law Podcast, health care litigator Rick Jaffe joins Jeff Lewis and me to discuss the maelstrom of lawsuits challenging vaccine mandates in state and federal trial courts and appellate courts throughout the nation.

Rick’s practice focuses on cutting-edge medical and legal issues across the country, and he is the author of *Galileo’s Lawyer*, a book telling the stories of medical mavericks and giving an insider’s view on high-profile and controversial medical cases.

We discuss why medical-rights litigation is different from other types of litigation. Rick then explains the three basic types of vaccine lawsuits that the courts are facing in late 2021 and early 2022: (1) challenges to the federal agency and police power; (2) religious conscience challenges; and (3) challenges to the state police power.

Trial counsel had some explaining to do at a trial court hearing. The failure to provide a reporter's transcript of that hearing was fatal to the appeal of the resulting order.

In *[Lemus v. Abdeljawad] (D4d2 Sep. 8, 2021) 2021 WL 4075181 (E075789) (nonpub. opn.), the plaintiff obtained a default judgment against the defendant. But the plaintiff got the default judgment under suspicious circumstances. The defendant never received the summons or complaint. When the defendant learned of the default, counsel sent emails to the plaintiff’s counsel asking for the complaint. Counsel left voicemails for plaintiff’s counsel. But plaintiff never responded, and instead pushed ahead to get a default judgment. When the defendant moved to set aside, the plaintiff admitted having received the defendant’s requests for the complaint, but did not explain why he never responded. The trial court set aside the default judgment.

When the plaintiff appealed, he failed to include the reporter's transcript from the hearing. Presumably, the trial court would have asked, at that hearing, “counsel, what possible excuse could you have for not responding to the defendant’s repeated requests for the complaint?” The Fourth District Court of Appeal apparently was curious to know the answer to that as well. The court held the lack of the reporter's transcript alone amounted to a forfeiture of the appeal.

I found this a really interesting case. It is about whether litigants need to have a court reporter at a law-and-motion hearing. Do you really need a court reporter for every occasion, such as a hearing where no testimony will be offered?

Before you answer, consider the perspectives of the appellate justices who disagreed sharply on the question in *[Weischadle v. Vo](https://casetext.com/case/weischadle-v-vo?resultsNav=false&jxs=ca&tab=keyword)* (D2d1 Jul. 2, 2021) 2021 WL 2766771 (no. B304845) (nonpub. opn.). The majority held the lack of a reporter's transcript at a hearing on a motion to compel arbitration was not fatal. But Justice Chaney penned a forceful dissent. The majority opinion is logical and seems to reach the right result. But Justice Chaney raises important questions whether the majority evaded important procedural safeguards to reach its result.

Given the outcome was a close call, as a practical matter it would be wise to assume a reporter's transcript is necessary for any important law-and-motion hearing, even if testimony will not be offered.

I discuss what happened in *Weischadle* in the rest of the post, along with some comments about judicial admissions, and whether California rules make record preparation needlessly difficult.

To appeal a judgment after a bench trial, you have to follow a complicated procedure to prepare a statement of decision. And even if you do it all correctly, it can still backfire. Appellate attorneys Frances Campbell, Jeff Lewis, and Tim Kowal discuss.

One of California’s foremost appellate experts, Myron Moskovitz, talks with Tim Kowal and Jeff Lewis about the personality type of the appellate attorney as part scholar, but with some fight left. Many judges tend toward the scholastic, Myron says, but some still enjoy the electricity of litigation.

When the appellate court agrees the statement of decision is defective, what happens? Appellate attorneys Jeff Lewis, Anne Grignon, and I discuss a recent case (covered here) that simply gave the trial court another chance to fix the defective statement of decision. I complain this makes waste of the entire appeal and will force a second appeal just to get to the merits. Jeff thinks this result is an outlier. But I have seen it happen before.

One case to consider if you are in this situation is Calloway v. Downie (1961) 195 Cal.App.2d 348, 351-53. There, a husband claimed an agreement to give him certain community property. But in three rounds of requests, his wife, who did not bear the burden of proof, sought findings of a transmutation agreement that would support the husband’s judgment. But the trial court never made the finding. (Id. at pp. 351–52.) Reversing, the court held that “[t]he repeated objections from appellants show that the transformations in the findings indicate a determination by the trial judge that there was in fact no agreement, express or implied.” (Id. at p. 353.)

Thus, Calloway may support an argument that the failure to make a finding should be deemed a finding that the record does not support it.

Appellate attorney Anne Grignon offers three brief-writing tips. First is former Justice Margaret Grignon’s advice about telling a clear story. Second, tell the court what rule it should adopt. Third, don’t be afraid to use pictures or visuals in your brief (if they are in the record).

Appellate attorney Anne Grignon suggests the California appellate courts seem to be more willing to review arbitration awards lately. Anne discusses with Tim Kowal and Jeff Lewis how questions concerning whether the case should be arbitrated, and questions involving important policy interests, may be more likely to receive appellate review. If you are in arbitration, these are important things to consider, whether you are looking to get appellate review or avoid it.

One of the criticisms against the uncitability of unpublished appellate opinions is that the fact they are not published feeds a suspicion they are not always thought quite all the way through. Certainly you are more likely to find typographical errors in an unpublished opinion, for instance, than you might in a published one. And I often find myself a bit unsatisfied at the level of legal analysis in an unpublished opinion.

But an unpublished analysis is better than no analysis at all. That is what the litigants got in *[Center Street Dev. Co. v. Superior Court](https://casetext.com/case/ctr-st-dev-co-v-the-superior-court?resultsNav=false&tab=keyword)* (D1d2 Nov. 24, 2021) no. A160894. The First District Court of Appeal just concluded that reversing the summary adjudication order seemed to it “obvious.”

What should have been at least as obvious to the court is that this sort of shortcut violates the state constitution and precedent of the Supreme Court. If the court missed this obvious point, is it possible its summary reversal missed other points as well?

Can you appeal an order on a motion to enforce a settlement agreement? And if so, why aren’t these orders listed in the appealable orders statute of [Code of Civil Procedure section 904.1](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=904.1&lawCode=CCP)?

The functional answer to the question is yes: orders on motions to enforce a settlement probably are appealable. But the court in *[Rezzadeh v. Chiu*](https://casetext.com/case/rezzadeh-v-chiu?tab=keyword&jxs=&sort=relevance&type=case&resultsNav=false) (D5 Dec. 13, 2021) 2021 WL 5873074 (nonpub. opn.) suggests the reason this is not obvious in the statute is that litigants are not supposed to have to take appeals from the orders. Instead, trial courts are supposed to be entering *judgments* on those orders. And then the appeal, naturally, would be taken from the judgment.

Settling a case is not the end. You may need to be prepared to invoke your appellate rights until a settlement is fully executed.

CEB published my article, “Don't Fall Into the "No Statement of Decision" Trap,” which cautions trial attorneys to make sure to formally request a statement of decision. A statement of decision can be a powerful base from which to launch an attack on a judgment, so do you think courts make it easy for you to get a statement of decision? (The answer is no, and as the article explains, courts may even actively steer you into waiving the statement of decision.)

The frustrating rule against citing unpublished appellate opinions in California courts, Rule of Court 8.1115, has an important exception: if a federal case has cited the unpublished California opinion, then you can cite to it by way of the federal case. Appellate attorneys Frances Campbell, Jeff Lewis, and I discuss.

Any federal judges looking for a way to perform a public service – and earn a lot of gratitude from California attorneys – should cite liberally to unpublished California appellate opinions.

Judges have a lot of leeway to exclude evidence at trial. But in *Brubaker v. Andy Strum* (D2d7 Dec. 10, 2021) 2021 WL 5856791 (no. B307887) (nonpub. opn.), the exclusion was an abuse of discretion. The trial judge excluded the evidence supporting the appellant's motion for a renewed domestic violence restraining order because he thought the evidence of harassment was barred by the doctrine of issue preclusion. But the judge misunderstood the doctrine of issue preclusion. That was a legal error. As a legal error was the basis of the exclusion, the exclusion order had to be reversed.

**The upshot**: Evidentiary rulings normally are difficult to challenge on appeal, being subject to the deferential abuse of discretion standard. But when an evidentiary ruling is based on an error of law, you may be entitled to something more like de novo review. That is what happened in this case.

Who decides whether a dispute must be arbitrated? The court, or the arbitrator?

By a vote of 3 appellate attorneys, the court should decide.

Appellate attorney Anne Grignon explains the takeaway from Banc of California v. Superior Court when attorney see an arbitration agreement incorporating the AAA rules – which purport to empower the arbitrator to determine the question of arbitrability. Anne explains to appellate specialists Tim Kowal and Jeff Lewis the arguments that led the Court of Appeal to hold arbitrability must be decided by the trial court, not the arbitrator.

Appellate attorney and author [Myron Moskovitz](http://moskovitzappellateteam.com/team/myron-moskovitz) joins Jeff Lewis and me on episode 20 of the California Appellate Law Podcast. Myron has been practicing appellate law since the '60s, and has curated an impressive collection of effective strategies to win appeals. Some of the topics we discuss include:

- Why appellate courts should provide brief explanations when denying writ petitions.
- Criticisms of Rule of Court 8.1115 prohibiting the citation of unpublished opinions.
- Statements of Decision
- Why the Appellant's Reply Brief may be the most important brief.
- Why you should moot your oral argument before writing your Appellant's Reply Brief.

We also discuss Myron's new book, *[Winning an Appeal](https://store.ceb.com/strategies-on-appeal-2)*. Myron explains this is not a practice guide that just tells you the nuts and bolts of how to appeal, but an actual readable volume with strategies for winning an appeal.

Appellate attorney Anne Grignon explains how difficult it is to decide to take the risk of filing a writ petition...even a writ petition that proved meritorious. Banc of California v. Superior Court resulted in a published opinion reversing an order sending a case to arbitration, and continuing a trend of opinions skeptical of private judging. But there are always reservations in taking a writ. Anne shares some of those reservations with Jeff Lewis and me.

Somewhere or other most attorneys have heard that you can get attorney fees if your opponent denies a request to admit a fact and you go on to prove that fact at trial. These are called "costs of proof" fees. You probably assumed this was more trouble than it was worth. But what if I told you that you could recover nearly $239,000 in fees this way? Now it seems worth a shot, doesn't it?

That's what the defendants got in *Spahn v. Richards* (D1d3 Nov. 30, 2021) __ Cal.Rptr.3d (2021 WL 5576615, no. A159495) as costs-of-proof fees.

The RFA here went to the ultimate legal issue in the case. Not a concrete fact, but the ultimate fact to be deduced from all the evidence. I had never envisioned costs-of-proof fees to encompass substantially all of the case. But that seems to be the upshot here. And it is a lower standard than for Code of Civil Procedure section 128.5 or 128.7 sanctions, and certainly lower than for malicious prosecution. This is something to consider implementing into your case strategy.

I see a lot of people make this mistake, not just attorneys but even judges. Remember: If no one asked for a statement of decision, then whatever reasons the court gave for its judgment do not amount to a "statement of decision," and thus may not be used to impeach the judgment.

That is what happened in the real property dispute in Chiasson v. Orlemann (D2d3 Dec. 3, 2021) 2021 WL 5755051 (no. B303080) (nonpub. opn.). The court issued a "Ruling on Trial," and the unsuccessful plaintiff used that for his appellate challenge. But it got him nowhere. It was treated as merely a tentative decision, which cannot be used to impeach a judgment.

(In the post, I relate a strategy I've heard from a trial judge to lure litigants into this trap.)

Appellate attorney Anne Grignon joins Jeff Lewis and me to discuss her recent win in Banc of California v. Superior Court, a writ petition from an order compelling arbitration. Anne discusses when and why to take a writ from nonappealable orders. The attorneys then turn to private judging generally, discussing Justice Segal's recent caution about the industry's potential overuse of that privately compensated judges, and Presiding Justice Kline's similar sentiment that "private judging is an oxymoron" and is "undermining public justice.” Anne then shares three tips for your next appellate brief, before the three discuss some recent cases, including strategies to consider in approaching statements of decision.

Another recent case instructs plaintiffs not to think they can reverse a defense judgment by arguing that "substantial evidence" supported a verdict in the plaintiff's favor. Instead, to overcome a defense verdict, a plaintiff must establish on appeal that the evidence was so overwhelming and uncontroverted that findings for the plaintiff were "compelled as a matter of law." Plaintiffs can almost never meet this burden, and the plaintiff in *Snoeck v. ExakTime Innovations, Inc.* (D2d3 Nov. 29, 2021) 2021 WL 5563958 (no. B302178) (nonpub. opn.) could not meet it, either.

Also of note: The plaintiff did prevail on one claim, but did not beat the employer's 998 offer. But when the employer moved to tax costs, it did not attach the 998 offer to the moving papers. It attached it instead to the reply papers. Held: it was an abuse of discretion to consider the 998 offer if not attached to the motion itself.

You know about de novo review, and abuse of discretion, and substantial evidence. But have you heard of the "finding compelled as a matter of law" standard of review? Jeff Lewis and I discuss a recent case applying the standard with tenant-rights and appellate specialist Frances Campbell.

If you are involved in declaratory relief lawsuits, you might be confronted with the need for a stipulated judgment, as happened *Tos v. State of California* (D3 Nov. 30, 2021) ___ Cal.Rptr.3d ___ 2021 WL 5576552 (no. C089466). The advice suggested in the case is particularly welcome because there are horror stories about stipulated judgments in other cases in both state courts and federal courts. So here is the right way to do it.

First, recall that in *Kurwa v. Kislinger* (expressing the general rule against the appealability of stipulated judgments), there were other claims the plaintiff wanted to preserve, and so the parties entered into a tolling agreement for those claims, and the plaintiff dismissed them *without prejudice*. Also, the defendant had a pending cross-complaint. In *Kurwa*, it was clear the parties were simply "manufacturing appellate jurisdiction," rather than waiting for a final judgment as the law requires.

In contrast, in *Tos* the stipulated judgment disposed of the only claim in the case. There was no cross-complaint. The judgment was with prejudice to the plaintiff's claims. This satisfied the court that the parties were not attempting to "manufacture appellate jurisdiction" as happened in *Kurwa*.

There have been many breathless reports of a coming "eviction tsunami" in the wake of Covid. But tenants' rights attorney and appellate specialist Frances Campbell says: take a deep breath. Fran tells Jeff Lewis and me why she thinks there is no eviction tsunami in the offing.

The right to move for a new trial is an important right, developed from the common law, enshrined in statute, and respected by our courts. The recent case of Nickelson v. Nickelson (D2d2 Nov. 19, 2021) 2021 WL 5407839 (no. B302585) (nonpub. opn.) also respects the important right to move for new trial. You absolutely have the right to move for new trial. No question. But Nickelson says you don't have a right to a ruling on the motion.

In this domestic violence case, the appellant-brother's claim was dismissed after trial. He moved for new trial arguing his evidence should have been let in, including video and photographic evidence and medical reports.

Here is what the trial court did about the appellant's new trial motion: the judge told the appellant to just file an appeal instead. And then the judge took the new trial motion off calendar.

And the Court of Appeal held this was fine.

(In the rest of the post, I explain why I disagree.)

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Did you know California landlord/tenant law is not clear on the basic question who has standing to bring eviction claims? Must the owner bring them, or may a property manager? Tenant-rights and appellate specialist Fran Campbell tells Jeff Lewis and Tim Kowal about a consequence of California's narrow standard governing what appellate opinions may be published. The cases deciding this question cannot be cited because they are technically "unpublished." California Rules of Court 8.1105 and 8.1115 create a "speakeasy" body of law: specialists know what the rule is, but they can't talk about.

US Solicitor General agrees Cal. Supremes misread HUD rules & cut aid to Section 8 recipients. Still, SG says SCOTUS should deny review because HUD about to issue new rules.

Cold comfort to the Section 8 folks whose funding the California high court would have reduced (and might reduce again).

This topic comes up periodically, but it is still a little puzzling.
A complaint is filed. For one reason or another, the court dismisses the complaint without prejudice. But: the court does not sign the dismissal order. A dismissal order must be signed under Code of Civil Procedure section 581d. So the appeal from the unsigned dismissal is dismissed in Alaoui v. Vaynerman (D2d5 Nov. 8, 2021) 2021 WL 5175659 (no. B308421) (nonpub. opn.).

Here is why I say this is a little puzzling. True, section 581d requires that a mandatory dismissal be signed. But in other cases where the case is effectively over but the trial court forgets the ministerial act of entering a judgment, appellate courts may simply deem the nonappealable order to be appealable.

So, why didn't the court simply deem the unsigned dismissal to be a signed dismissal here?

The answer (I think) is because the Court of Appeal recognizes that the plaintiff, facing a dismissal without prejudice, may simply elect to refile the case. And if that can happen, then clearly the dismissal was not "final."

The rules of appellate procedure are curious already, but what about appeals in limited civil cases? Curiouser and curiouser. Tenants' rights attorney and appellate specialist Frances Campbell discusses the important differences in appeals in the Appellate Division of the California Superior Court with appellate attorneys Jeff Lewis and Tim Kowal.

If you work in court, you have seen the basic template for submitting written objections to evidence supporting a motion. It is the chart where is listed the objectionable matter, the objection, and a space for the judge to indicate whether the objection is "sustained/overruled." When you need one of these, you probably search your computer for the last one you did and get to work, without much thought to whether the format of the chart is quite correct.

Time for a systems check. In Scofield v. Hanson Bridgett LLP (D3 Nov. 8, 2021) 2021 WL 5176140 (no. C081115) (nonpub. opn.), a plaintiff's written evidentiary objections, filed in response to the defendant's motion for summary judgment, were overruled because they "fail[ed] to number the objections consecutively," and did not provide a "space for the court to date or sign its rulings." And on appeal, the court held that this ruling on pure formatting grounds was within the trial court's discretion: A court does not abuse its discretion in holding a party to the mandatory formatting requirements or in declining to give a party a second chance to file properly formatted objections. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8-9.)

Tenants' rights attorney and appellate specialist Frances Campbell gives appellate attorneys Jeff Lewis and Tim Kowal a lesson in "HateWriting": harnessing that exquisite state of agitated frisson to produce a legal brief that will leave a mark without, after a final edit for overheated adverbs, drawing admonitions.

Enforcing a judgment is hard enough before appeals and appeal bonds enter the picture. Unfortunately, the published opinion in Wertheim, LLC v. Currency Corp. (D2d1 Oct. 14, 2021) 2021 WL 4785575 (nos. B304655, B310650) now takes that picture even further out of focus. The upshot is that the defendant fully satisfied a judgment, but that was not enough: the plaintiff intended to seek more costs, and the defendant did not "condition" its payment on its constituting full satisfaction of the judgment.

Held: contrary tot Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 891, the plaintiff could continue filing motions for more enforcement costs even after the defendant had paid the entire amount of the judgment, interest, and costs then due.

Takeaways: (1) Don't wait to enforce an appeal bond — you have a year after the appeal, that ought to be plenty. (2) When seeking judgment-enforcement fees, the touchstone is "necessarily incurred," not the more familiar and relaxed standard under Civil Code section 1717. (3) If you are a defendant trying to satisfy a judgment, make it clear that is your intent, because Wertheim throws existing law on this point into doubt.

Frances Campbell of Campbell & Farahani, LLP joins Jeff Lewis and me for a discussion about housing law, eviction defense, appeals, and practicing in limited jurisdiction courts. Fran explains some of the common pitfalls in limited civil appeals, and discusses whether the Appellate Division seems sometimes to be shielded from meaningful review. (These courts handle eviction appeals, and because they are usually unpublished the bar still has no clear answer on who has standing to bring UD actions.)

Fran also shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term "HateWrite" (verb: the act of drafting, in a single pass, in a state of agitated elan, an entire appellate brief, the editing of which requires only the removal of vituperative adverbs), and the font Cochin for brief writing.

Businesses in litigation want to "win the battle" but also need to "win the war." Outside general counsel @Lee Goldberg tells @Jeff Lewis and me when and why businesses sometimes take the long view on litigation, even willingly taking short-term losses to get long-term gains.

There are a few different ways a lawsuit can end. Judgments we know about, and settlements are common. But what happens when the plaintiff just up and dismisses the lawsuit? Can the defendant get costs? And is the cost award appealable?

There is a split of authority on these questions, as noted in Thomas v. St. Joseph Health System (D4d3 Oct. 20, 2021) 2021 WL 4889873 (no. G059408) (nonpub. opn.). Seeing the writing on the wall on the defendants' motion to quash based on personal jurisdiction, the doctor-plaintiff dismissed his right-to-practice and unfair-competition lawsuit (which he would later refile in Texas). The defendants recovered the significant costs they had incurred through a number of depositions during jurisdictional discovery, and the plaintiff appealed.

The court noted a split of authority, but came down on the side of finding a cost order entered after a voluntary dismissal without prejudice is appealable as a final judgment. (But the court went on to affirm the cost order.)

The appealability holding seems to me clearly correct, with all due respect to the contrary authorities.

But I offer a few words of caution about strategic voluntary dismissals. When the "writing is on the wall" as it was in this case, authorities suggest the time to dismiss without prejudice is over.

Does corporate counsel always tap the "white shoe" law firms for trial work? No, says outside general counsel Lee Goldberg. Lee tells Jeff Lewis and me that while white shoe firms have their place, what businesses really need is excellent trial counsel who understand the particular needs of their clients, and why relationships matter.

You know that the 60-day deadline to appeal starts the moment the clerk or a party serves either a notice of entry or a "filed-endorsed copy of the judgment, showing the date either was served." (Rules of Court, rule 8.104(a)(1)(A).) So what happens when the clerk serves a 23-page minute order granting an anti-SLAPP motion, along with a certificate of mailing? The judge clearly has decided the anti-SLAPP motion, which is an appealable order. The certificate shows the date of service. So the 60-day period starts running, right?

Wrong, says the Second District in Nejad v. Abernathy (D2d4 Nov. 1, 2021) 2021 WL 5049091 (nos. B304481, B307759) (nonpub. opn.). Rule 8.104 is read literally. There was no document titled "Notice of Entry," and no file stamp on the minute order. Thus, service with the minute order was insufficient to trigger the 60-day deadline. Motion to dismiss appeal denied.

Still, I would not chance it. File the notice of appeal within 60 days unless you have a very good reason why not.

To arbitrate or not to arbitrate? Outside general counsel Lee Goldberg shares his experiences and perspective on arbitration with Jeff Lewis and me, and how to balance arbitration's pros and cons.

When a jury becomes unavailable before a verdict is returned, the result is a mistrial. Likewise, when a judge becomes unavailable before the statement of decision is entered, the result is a mistrial. Both common law and statute entitle either party after trial to ask the trial judge to decide the cause independently as the "thirteenth juror." So it stands to reason that, if the judge becomes unavailable before a new trial motion can be decided, the result should be the same: mistrial.

But that is not the way the cases have come out where the trial judge becomes unavailable before deciding a new trial motion. As illustration is the recent case of Hakenjos Hall Prof. Svcs, Inc. v. Korte/Schwartz, Inc. (D4d1 Jun. 17, 2021) 2021 WL 2461132 (nonpub. opn.). After a jury trial by experts over business damages, the trial judge retired, and the defendant moved for new trial. A new judge denied the motion, and the Court of Appeal held that substantial evidence supported the verdict.

I offer some reasons why this may give short shrift to the standard on a motion for new trial.

When a jury returns a large verdict, the unhappy defendant has to file a motion for new trial to reduce the verdict. (You can't just appeal directly, or else you'd waive the excessive-damages issue.) One way to argue the damages are excessive is to demonstrate the amount is the result of passion or prejudice. And one way to demonstrate that might be to compare verdicts in similar cases.

That is what the defendant-appellant tried after it was hit with a $25 million noneconomic verdict in the mesothelioma case of Phipps v. Copeland Corp. (D2d7 May 18, 2021) 278 Cal.Rptr 3d 688 (2021 WL 1973560). The appellant compiled 15 comparable cases into a report, and submitted that with a declaration in support of its motion for a new trial. But the trial court excluded the report as irrelevant and denied the motion. On appeal, the appellant argued the trial court erred in this ruling because verdicts in other cases were relevant.

Held: The compilation of other cases was not based on "the minutes of the court" under Code of Civil Procedure section 658, and thus could not be considered as a basis to reduce damages on a motion for new trial. Affirmed.

This analysis seems harsh, but it is based on the statutes. Do not rely on declarations in a new trial motion. Support your motion based on the court minutes.

I find it noteworthy the court decided this case the way it did. The court apparently did as well, as it published the opinion. This signals a bigger uphill climb for defendants challenging large jury verdicts. This is an important reason to have appellate counsel present at trial.

When settling a case after a judgment, parties sometimes explore the possibility of a stipulated reversal of the judgment. In the Court of Appeal, the burden required is very high. But what about getting a stipulated vacatur of the judgment at the trial court?

The parties in Meridian Financial Services, Inc. v. Phan (D4d3 Aug. 10, 2021) 67 Cal.App.5th 657 [282 Cal.Rptr.3d 457, 67 Cal.App.5th 657], review filed (Sept. 17, 2021) stipulated for vacatur of large portions of the statement of decision and judgment as a condition of their settlement. The trial court went along with it.

But the judgment that was left over still had preclusive effect. So the exercise was largely pointless.

The Upshot: Do not put a lot of stock in a stipulated reversal or vacatur of a judgment. It is very difficult to achieve in the Court of Appeal. And even if you can achieve it in the trial court, the effect may be less than you think.

This will surprise appellate attorneys. The Court of Appeal in Pettie v. Amazon.com, Inc. (D4d2 Sep. 21, 2021) 2021 WL 4270631 (no. E074241) (nonpub. opn.) recently reversed an order denying a motion to compel arbitration — but not because the trial court did not cite valid grounds to deny the motion. Instead, the majority reversed because the trial court failed to determine the threshold factual issue whether there existed an agreement to arbitrate. In a forceful dissent, Justice Slough noted: this was a denial of a motion. A denial of a motion must be affirmed on any available grounds.

Justice Slough went on to provide some useful appellate standards that practitioners will want to clip-and-save. Justice Slough seems to me correct, and clearly so, on all points. The majority's opinion is baffling.

Offering a sobering view of the litigation process, outside general counsel Lee Goldberg shares his litigation experience with Jeff Lewis and me, and how business owners should view it as a tool to achieve practical outcomes, not to vindicate a principle. Leave "truth, justice, and the American way" for Superman.

One of the nice things about bench trials is that there is no need for jury instructions and verdict forms, which can be very laborious to prepare. In a bench trial, instead of a verdict turned in by the jury, the parties get a statement of decision turned in by the judge. But what happens when the judge fails to make findings on material issues in the case?

A helpful illustration of how to set up a strong technical argument on appeal is found in Legendary Builders Corp. v. Grovewood Properties, LLC (D2d4 Oct. 5, 2021) 2021 WL 4550995 (nos. B297299, B301777) (nonpub. opn.). By raising an omission in the statement of decision in the trial court, the appellant was able to obtain a reversal on appeal.

But caution: While this proved effective on appeal, the result was a remand with directions to the trial judge to supply the missing findings. What are the chances the judge will make findings favorable to the appellant?

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One of the many ways the deck is stacked against appellants on an appeal has to do with the implied findings doctrine. What is the implied findings doctrine? It says that even if the appellant is absolutely correct that the trial court did, in fact, fail to make the findings necessary to support the judgment against the appellant, the appellant still loses: the Court of Appeal will pretend the missing findings are there anyway.

So the respondents in Nielsen v. MacPherson (D4d3 Oct. 8, 2021) 2021 WL 4704890 (no. G059758) (nonpub. opn.) must have been feeling pretty buoyant about their chances on appeal. The plaintiff-respondents had defeated an anti-SLAPP motion, and then obtained a rare award of attorneys' fees. Awards of fees against anti-SLAPP movants are only available where the anti-SLAPP motion is frivolous or filed to cause unnecessary delay. (Code Civ. Proc., § 425.16(c)(1).) No such finding was made here, but the respondents argued it should be inferred under the implied findings doctrine.

The Court of Appeal disagreed. The doctrine probably will only apply to the extent it is consistent with the trial court's reasoning. The Court of Appeal will be less inclined to deploy the doctrine to rewrite the trial court's decision.

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Trial attorneys are familiar with the three common standards of appellate review: substantial evidence, abuse of discretion, and de novo. But what standard of review applies when an unsuccessful plaintiff appeals? When the plaintiff is arguing that the trial court should have found its evidence more persuasive, a fourth standard of review applies, something like a summary-judgment standard, in which the appellate court must be satisfied the plaintiff's evidence is so compelling that the plaintiff is entitled to a finding as a matter of law. This is a very difficult burden to overcome, and so it is rarely attempted, and even more rarely met.

But the plaintiff met the high finding-compelled-as-a-matter-of-law standard in King v. May-Wesely (D5 Oct. 22, 2021) 2021 WL 4929912 (no. F080224) (nonpub. opn.).
This almost never happens.

If you are the successful defendant responding to the plaintiff's appeal, keep the finding-compelled-as-a-matter-of-law standard in mind. Unsuccessful plaintiffs sometimes think the substantial-evidence standard of review applies. But as the authorities indicate, this is not only incorrect, it is misleading. It is not enough for the plaintiff to point to the defendant's evidence as insubstantial: the plaintiff must show it met its burden by uncontradicted and unimpeached evidence.

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Clients want success. But: What is success?

Outside general counsel Lee Goldberg tells Jeff Lewis and me what this means for the businesses he represents. Success is perception, and effective counsel manages the client's perceptions. Lee concludes by observing that the successful attorney is successful through communication, not by being the hero who swoops in and solves everything.

The Los Angeles Superior Court has relaxed its dress code for attorneys making virtual court appearances, and need not wear jacket or tie. Orange County Deputy District Attorney Kelly Ernby discusses the new rule with Jeff Lewis and me, and we all agree: Just because the rule has changed does not mean the judges' expectations have changed.

Appealability is a jurisdictional question. A jurisdictional question is one that the law answers either one way or the other, and there is nothing the court can do about it. So when a court answers a jurisdictional question with, "under the circumstances," that is a clue that something strange is going on.

That is how the court answered the question whether an order denying a motion to vacate a conservator's final account in Hudson v. Foster (D2d5 Sep. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4059808.

The large number of exceptions to the nonappealability of orders denying motions to vacate undermines the notion that appealability is jurisdictional. Perhaps the Supreme Court or the legislature should consider offering clarification.

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What was it like to give the first virtual oral argument in the California Supreme Court? Orange County Deputy District Attorney Kelly Ernby tells appellate attorneys Jeff Lewis and Tim Kowal what that experience was like.

When a court orders a party to move out of a residence, that is a mandatory injunction, which is automatically stayed upon appeal. But if the court also orders the sale of the property, the order is stayed on appeal only if a bond is given. And if the parties later stipulate to a different order, then the appeals of both of those orders are moot.

That is the thumbnail of Tearse v. Tearse (D1d4 Sep. 22, 2021) 2021 WL 4304761 (no. A158582) (nonpub. opn.). The really unusual thing about this case is how the court treated the respondent's argument that the appeal was moot. The court agreed, but was also concerned that it would operate to affirm a trial court's order that was void because entered after an automatic stay. So the court reversed that order as moot. That, surely, is not how the respondent expected his mootness argument would be taken. Be cautious with mootness arguments.

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Filing an appeal is not hard. There is no particular form required. All that is needed is to identify the order you are appealing, and to file it before the deadline.

But as a recent case illustrates, you might not even have to identify the right order. As long as it is filed on time, the Second District held in Bennett v. Rivers (D2d3 Oct. 6, 2021) 2021 WL 4583844 (no. B301211) (nonpub. opn.), the rule of liberality is very forgiving.

The respondent missed a trick here by not serving a notice of entry of the appealable order. That would have set up the 60-day deadline to appeal. Here, the appellant waited to appeal from a subsequent (and non-appealable) order. He was forgiven for appealing from the wrong order, but he would not have been forgiven for blowing the 60-day deadline — if only the respondent had set it up.

That is why it is important to spot the appealable orders early on. If you are unsure, consider consulting an appellate attorney.

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Lee Goldberg joins Jeff Lewis and me for a discussion about his perspective on litigation as outside general counsel for his business clients. Lee shares his three decades of experience using litigators to solve business problems, and offers advice for trial attorneys serving corporate clients. We talk about Lee’s recent video series on LinkedIn (available at his website CalLawyers.com), and what a general counsel looks for when hiring trial and appellate counsel.

Some of Lee's lessons:
•On litigation objectives: " My client is never principle over business. Ever."
•On the most common mistake litigators make: " [When] they think that they have the only answers. Sit back, listen to your client. That is the biggest error that I see."
•On hiring the right litigation team: "Local, smaller, dedicated, smart counsel is what I look for."
•On trial counsel handling appeals: "I will never have my trial lawyers handle my appeals. Ever."
•On success: "The thing that people keep coming back to is success. Understand something, success is perception. Success is not a piece of paper. Success is an emotional feeling that you give to the client that they did the best they could in the situation that they had."

Would love to hear your perspectives.

Listen to the episode here: https://lnkd.in/gsteHnG8

Please subscribe to the California Appellate Law Podcast in your favorite podcast player.

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I have written before that checking the wrong box on the Judicial Council form notice of appeal likely will not doom your appeal. But I have also written that, if you continue using the Judicial Council form, you are likely to continue giving your adversary — and the courts — cause to question the sufficiency of your notice of appeal. (This is something attorneys do not like having to explain to their clients.)

Both of these points are confirmed in *Fang v. Shao* (D4d2 Oct. 8, 2021) 2021 WL 4704892 (no. E073065) (nonpub. opn.). The appellant appealed from a judgment, but checked the box saying she was appealing from an order after a judgment. The respondent pounced on the technical defect. The court found the notice of appeal was sufficient under the liberality doctrine.

But is there any reason to continue using the Judicial Council form notice of appeal? While you have the doctrine of liberality going for you, the form only gives the court reasons to construe your notice more narrowly. It is an optional form, but I am not aware of any upside of the option. To any attorneys interested, I am happy to email you my basic notice of appeal template on request: tkowal@tvalaw.com.

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Would a defendant rather be sued by one District Attorney, or 58 of them? Orange County Deputy District Attorney Kelly Ernby sued pharmaceutical company Abbott Laboratories for improperly delaying the release of the generic version of a drug. Surprisingly, the defendant argued the claim could not be brought by a single DA. (The Supreme Court disagreed.) Kelly tells Jeff Lewis and me that, had the defendant gotten its way, it might have led to a more complex and costly multi-district litigation. This downside to the strategy perhaps was not fully considered by the defense in this case.

It is rare that the Court of Appeal will issue a writ instructing the trial court to grant summary judgment. But that is what happened in the published opinion in Forest Lawn Memorial-Park Association v. Superior Court (D4d2 Oct. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4618080 (no. E076549). After the defendant filed a motion for summary judgment, the plaintiff's attorney pressured a witness to sign a declaration. Based on that declaration, the court denied the motion. But a later deposition revealed nothing about the declaration was true, and that the witness signed it just to get the attorney to leave her place of employment to avoid trouble.

I was surprised to find the court offered no admonition against the conduct of plaintiff's counsel. What counsel did here seems to me very close to suborning perjury. True, the case is not over, and the trial court will have the opportunity to make whatever admonitions are appropriate. But then again, the indulgent trial court would have credited the false declaration — even after the evidence showed it was false — had the Court of Appeal not stepped in. I think a word about ethics was called for here.

Does this surprise you, Donald Patrick Eckler, DAN COTTER, Kansas Gooden, Lindsey Lawton?

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Devastating trial court orders should be appealable. That is a natural assumption. And that it why it can be disconcerting to learn about appeals dismissed on grounds of nonappealability. (That is why I write about them.)

But actually, the opposite may be true: When more orders are made independently appealable, it means there is more risk that, by the time you get a final judgment, large chunks of your case will now be beyond appellate review. Failing to get review right away is far less devastating than getting no review at all.

The Fourth District Court of Appeal offers a reminder of this in State of California v. Southern California Edison Co. (D4d2 Sep. 30, 2021) 2021 WL 4471627 no. E074138 (nonpub. opn.). The court held an order granting summary adjudication on a declaratory relief claim was not appealable as a collateral order because it did not order the immediate performance of an act or payment of money. The court distinguished a similar case where declaratory relief, also summarily adjudicated, was found to be appealable. In that other case, the trial court also entered an enforcement order. The Edison court noted that, had the underlying MSA been found appealable, then it would have been unreviewable by the time the enforcement order was entered — two years later.

The lesson is that a too-easy rule of appealability could actually make it harder to get review, not easier, because parties would have to file several appeals along the way to a judgment, or else forfeit them as untimely.

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Attorneys, you might have heard about "cleaning up" case quotations in your briefs. When you have a quote with a lot of internal quotations marks and ellipses and unsightly square brackets, several appellate courts — including the US Supreme Court — have used the parenthetical ("cleaned up") following a citation to signal the removal of these unnecessary symbols. But, is it licit for us attorneys to use ("cleaned up") for ourselves?

Absolutely not, says Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana). Jeff tells Jeff Lewis and me on the California Appellate Law Podcast that if the court sees attorney turning in any quotations with any material removed from them, the court is going to check it out. So using ("cleaned up") is only going to arouse suspicion, and is not doing the court any favors.

It is not enough to appeal your case. You have to keep your case alive until the Court of Appeal has a chance to get to it.

That is the lesson of Badea-Mic v. Detres (D3 Nov. 23, 2020) **no. C085459 (nonpub. opn.). The appellant appealed an order authorizing the sale of the property, but the property was sold to a third party before the appeal concluded. Thus, the appeal was moot.

In fairness, the appellant did seek a stay in the trial court, which was the right move. But when the trial court denied that stay, the appellant waited too long to seek a writ of supersedeas (the appellate court's fancy word for stay) in the Court of Appeal. In this case, she had only four days to seek supersedeas before escrow closed. A good reason to have appellate counsel at the ready!

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Orange County Deputy District Attorney Kelly Ernby won a landmark California Supreme Court decision in Abbott Laboratories v. Superior Court. She tells Jeff Lewis and me that it came about when, surprisingly, the pharmaceutical […]

There are two reasons I am surprised the Court of Appeal published the opinion in Findleton v. Coyote Valley Band of Pomo Indians (D1d2 Sep. 29, 2021) 2021 WL 4452323 nos. A156459 etc., ---- Cal.Rptr.3d ----. The first is that it holds, more forthrightly than I have seen before, that a final collateral order is treated as a judgment for purposes of Code of Civil Procedure section 904.1(a)(1). That is, not only is the collateral order appealable, but orders following it are appealable too under section 904.1(a)(2). (This is a sensible rule, it is just not very well-supported in the statute.)

The second reason I am surprised the court published this opinion on the disentitlement doctrine — i.e., dismissal of an appeal — is because the appellant's disregard and contempt for the lower court's orders was so brazen, and the grounds for disentitlement so clear, that I fear this opinion might mislead readers. In fact, much less egregious violations than the ones in this case — much, much less — may warrant disentitlement.

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Pop quiz: How much time do you get to file a motion for attorneys' fees (or a notice of appeal) after an order denying a new trial motion?
a. 30 days
b. 60 days after notice of entry of judgment
c. 180 days after entry of judgment
d. It depends on how order denying the new trial motion was served.

If you answered "it depends" then you are correct, as helpfully explained in Gallop v. Duval (D2d2 Sep. 2, 2021) 2021 WL 4077847 no. B308531 (nonpub. opn.).

Closely following rule 8.108, the court noted that the new trial denial order was not served. A notice of entry was not served. The denial was not by operation of law. By process of elimination, the time to appeal was extended to 180 days after entry of the November judgment. The February motion was timely, so the trial court's denial of attorney fee motion as untimely had to be reversed.

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CEB has republished my article Excessive Interrogatories Violate the Rules of Civility, Appellate Court Says at their website as, "The Risks of Serving Too Many Interrogatories".

The article is about two important but subtle rules of civil discovery in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). And a bonus appellate tip.

The CEB article is available here: https://lnkd.in/gCx62BwX.

My original article is here: https://lnkd.in/g4xJfid7.

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"I found the perfect case! The facts are on point, the law is on point...but goddammit it's UNPUBLISHED!" If you are a litigation attorney this undoubtedly has happened to you. But why this confounded Rule of Court 8.1115 against citing unpublished opinions?

Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), explains the reasons to appellate attorneys Jeff Lewis and Tim Kowal on the California Appellate Law Podcast. To the point that making everything citable would be administratively cumbersome, Tim thinks this is a "you problem," and that litigants are entitled to true judicial opinions rather than the equivalent of decisions by private judges.

The three attorneys also discuss how adjustments to stare decisis models (horizontal vs. vertical) might help.

What do you think?

When opposing a motion for summary judgment, seeking a continuance to conduct additional discovery should always be considered. A single piece of evidence may be enough to successfully oppose summary judgment, both in the trial court and on appeal, so even if you don't have that piece of evidence yet, making a record that it might exist is critically important. And all that is required is an affidavit under Code of Civil Procedure section 437c(h), so why not file one?

But some courts may scrutinize this affidavit, as we are reminded in Begley v. Delta Dental of Cal. (D1d3 Aug. 31, 2021) 2021 WL 3878844 no. A159983 (nonpub. opn.). The plaintiff in that employment-discrimination case opposed summary judgment by filing an affidavit explaining she needed to take the deposition of the person most qualified about the employer's reorganization policy that led to the plaintiff's termination. Seems like a sound approach. But while section 437c(h) does not require much more specificity, some cases interpreting it do, and require the opposing party to state the "particular essential facts that may exist."

The plaintiff didn't include those magic words in her affidavit. So discovery denied, summary judgment granted, and affirmed on appeal.

(I offer a critical comment in the article, and would be interested to know your thoughts about it.)

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What was it like to give the first virtual oral argument in the California Supreme Court? And how did the Orange County District Attorney's office create a new legal precedent in California that effectively allows local district attorneys to pursue statewide enforcement actions?

Kelly Ernby of the Orange County District Attorney's office tells Jeff Lewis and me about her experience litigating Abbott Laboratories v. Superior Court in the California Supreme Court. The pharmaceutical company, accused of delaying the generic release of a drug to prop up prices, make a strategic miscalculation by raising statewide enforcement via demurrer. While it was not clear statewide remedies were available when the case was filed, it is now. It is an important lesson in being careful what you wish for.

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Judge David O. Carter of the Central District of California made national news when he ordered Los Angeles to put up $1 billion to address its homelessness crisis. But that order was based on claims the plaintiffs did not allege, relief the plaintiffs did not request, and evidence the plaintiffs did not adduce. While trial courts are given wide discretion in issuing preliminary injunctions, the Ninth Circuit in LA Alliance for Human Rights v. County of Los Angeles, ___ F.4th ___ (2021) 2021 WL 431791, thought this was coloring rather far outside the lines.

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There are two noteworthy things about the published opinion in Strobel v. Johnson & Johnson (D1d4 Sept. 21, 2021) 2021 WL 4272711 no. A159609. First, it suggests how litigants might have avoided the dreaded Sanchez rule that prevents experts from offering "case-specific hearsay" in their opinions. Second, it suggests some evidentiary rulings may be reviewed under the appellant-friendly de novo standard of review, rather than the deferential abuse of discretion standard.

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Rarely does it give such satisfaction to report the dismissal of an appeal. A group of businesses who had benefited from local protectionism — which had prevented newer businesses from competing with the incumbents — were dismayed when the trial court struck down the protectionist scheme as unconstitutional. Though the incumbents were not parties to the lawsuit, they appealed the ruling anyway.

Held: The non-party incumbent businesses had no legal right to challenge the dismantling of the protectionist laws that had benefited them. Robert Taft Jr. v. Vargas (D4d2 Sept. 17, 2021) 2021 WL 4237140 no. E076173 (nonpub. opn.).

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One exception to the normal rules of appealability is the collateral order. One example of a collateral order is in the relatively rare published order (in contrast to an opinion) dismissing the appeal in Dr. V Products v. Rey (D2d5 Sep. 8, 2021) 2021 WL 4129463 no. B312605. The collateral order there is an order denying a motion for attorney fees following dismissal of a misappropriation claim, which claim allegedly was filed in bad faith, thus entitling the prevailing defendant to fees under Civil Code 3426.4.

The order denying fees was collateral to the merits. And it was final. But still, the Second District Court of Appeal held — and rather unequivocally — that the order was not appealable as a collateral order.

Why? Because the order, though final and collateral, did not order the payment of money or performance of an act. And that is a necessary element in making a collateral order appealable.

Except, that is, in courts subscribing to the minority view.

(I happen to agree with the minority view. And unless you are in an appellate district that clearly has staked out its support for the majority view, you probably should assume your final collateral orders are appealable.)

Thanks to Alana Rotter for sharing this case.

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Have you ever read an unpublished opinion and thought the reasoning a little mischievous, a little outcome-driven? Long-time court-watcher Howard Bashman has reported appellate justices have admitted this may be the case sometimes. (See here: https://lnkd.in/gdB-arbK.) But Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and me on the California Appellate Law Podcast that it never happened that he saw during his three decades at the Court of Appeal at the Fourth District, Division Three (Santa Ana).

What do you think?

There are two important reminders about motions for summary judgment in Steger v. CSJ Providence St. Joseph Medical Center (D2d5 Aug. 16, 2021) 2021 WL 3615548 no. B304043 (nonpub. opn.). The first reminder is that the appellate court may affirm on any ground, even if the trial court never reached that ground. The second reminder is that, if you are opposing an MSJ and you have not had a chance to complete discovery on any of the grounds advanced in the motion, you must say so in a CCP § 437c(h) declaration: just arguing it in the opposition is not enough.

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You probably have heard of appeals being dismissed on procedural grounds, or as frivolous. But you could practice law rather a long time and never hear of an order being summarily REVERSED **on appeal. But that is what happened in the improbably titled case IAHLDHFAPIMP_PAP, LLC v. Noll (D4d1 Aug. 11, 2021) no. D077727 (nonpub. opn.)

But don't get too excited. The appeal was from an award of attorneys' fees following a judgment. The underlying judgment recently got reversed in a separate appeal. No judgment, no right to fees. There was no point in going forward with the appeal.

Still, the concept of a summary reversal is a curious one, for reasons I discuss more in the article.

Thanks to Ben Shatz for mentioning this case. (https://lnkd.in/g4GcQ_Qc.)

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Did you know that California appellate justices are elevated from the trial courts more often than are federal appellate judges? Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and me on the California Appellate Law Podcast that this may be why our state appellate courts tend to be more deferential than is the 9th Circuit.

What do you think?

Attorney business coach Alay Yajnik was kind enough to invite me onto his podcast, the Lawyer Business Advantage, to discuss how an appellate attorney can help trial attorneys win and add value to the services they provide clients, telling clients appreciate hearing why the attorney cares about the case rather than just how much the attorney will cost, and then moving on to a discussion about publishing legal content.

Listen online at Alay Yajnik's podcast website, Lawyer Business Advantage, which also has a nice summary of the conversation.

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In appeals from mixed discretionary and factual findings, it can be tempting to fault the trial court for failing to consider all the great evidence in the appellant's favor. But be careful not to ignore the "heavy burden" required to get review on the factual questions. Failing to comprehensively evaluate the evidence against the appellant resulted in a forfeiture of the issues on the appeal in Ashby v. Ashby (D4d3 Aug. 5, 2021) 2021 WL 3413092 no. G058474 (nonpub. opn.).

Reviewing a renewal of a DVRO, the court analyzed the Ritchie factors and found that findings supporting the original DVRO, a key point of the analysis, were not properly captured in the appellant's brief. So the issue was forfeited. Order affirmed.

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Just because I get this question a lot from clients and other trial attorneys, I put it to Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), who sat down to talk with Jeff Lewis and me on the California Appellate Law Podcast. Does the court give any consideration to the number and length of extensions the parties request?

Answer: an emphatic No. Nope. Never. Not even a little.

Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), talks to Jeff Lewis and me about the cultural differences among some of the districts. Do the research attorneys talk amongst themselves about the case they are working up? What about the justices? The answer may depend not only on policy but on the architecture of the courthouse: are all the justices and staff attorneys on the same floor, or scattered about?

You may think this is obvious, but I continue to see attorneys get tripped up by this question: When an appeal from a judgment is taken, which generally stays matters in the trial court (i.e., matters that are are "embraced therein or affected thereby" (CCP § 916)), does the appeal prevent the trial court from awarding the prevailing party's attorneys' fees?

Answer: No. In fact, the First District Court of Appeal recently called this a frivolous argument in Korchemny v. Piterman (D1d2 Aug. 27, 2021) 2021 WL 3828228, no. A155483 (nonpub. opn.).

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You might know that petitions for writs of mandate filed in the California Courts of Appeal are rarely granted. And that petitions for review in the Supreme Court are granted even more rarely. But a recent case gives an idea what it looks like when they are granted.

Promptly after the assignment of a judge who was potentially biased against him, the petitioner in Ionescu v. Superior Court (Contra Costa) (D1d3 Aug. 26, 2021) 2021 WL 3782724 (nonpub. opn.) made a challenge for cause under Code of Civil Procedure section 170.1. The judge rejected the petitioner's challenge out of hand as untimely, but on grounds that were pretty clearly faulty.

A writ petition in the Court of Appeal was summarily denied. But the Supreme Court granted a petition for review, and transferred the matter back to the Court of Appeal with directions to vacate its summary denial and to issue an order to show cause why relief should not be granted. The Court of Appeal ultimately issued the writ in favor of the petitioner.

Writ petitions are processed very quickly, which can increase the chances the Court of Appeal could get it wrong. If you have a righteous writ petition, be prepared to seek review in the Supreme Court immediately. As this case illustrates, these things can get turned around.

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Jeff Calkins, recently-retired senior research attorney with the Court of Appeal, talks to appellate attorneys Jeff Lewis and me about the inner workings of the writ panel at the court. While technically you may have 60 days to file your writ, Jeff explains why your writ is more likely to be denied if it is filed close to the deadline.

Jeff Calkins, recently-retired senior research attorney with the Court of Appeal, tells Jeff Lewis and me what it is like working at an appellate court ("like a monastery," in a good way). In this clip from the show, Jeff describes the court as "a think tank with consequences."

After a disappointing ruling, a motion for reconsideration is often tempting. It is much cheaper and faster than an appeal, and, who knows, maybe the judge really did just overlook a key fact and will correct it after taking a second look.

But in the case of a final judgment having been entered, the trial court might not even have jurisdiction to entertain a motion for reconsideration. That is what the Fourth District Court of Appeal concluded in Espinoza v. Ponce (D4d1 Aug. 18, 2021) 2021 WL 3645535 no. D078096 (nonpub. opn.).

The Fourth District Court of Appeal appears to join a number of districts holding trial courts lacks jurisdiction to consider final orders and judgments — reconsideration only applies to interim orders.

And even compelling "new" evidence will not be considered if it is not presented timely. There are worse things than the occasional loss of possibly meritorious cases due to procedural or attorney errors: "'Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice ....’ [Citations.]” (People v. DeLouize (2004) 32 Cal.4th 1223, 1232.)

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Three years and one SLAPP appeal into litigation over a commercial real estate dispute, defendants filed a second anti-SLAPP motion in in Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (D4d3 Aug. 20, 2021) 2021 WL 3700752 [no. G058687] (nonpub. opn.).

But the statute says anti-SLAPP motions must be filed within 60 days of service of the complaint, and the defendant did not seek leave of court to file a later motion. The Fourth District Court of Appeal held leave must be granted before a late SLAPP motion is filed. The trial court apparently excused the untimeliness and instead denied the SLAPP motion on the merits. This was improper.

But even had leave been sought here, three years was well beyond the court's discretion to excuse: "None of the salutary purposes of the anti-SLAPP statute has been advanced by the motion, while the statute's potential abuse has been realized. Under these circumstances, the trial court could have exercised its discretion only by denying MCWE's anti-SLAPP motion as untimely."

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When it comes to expert evidence, the trial court may properly exclude evidence that was not actually prepared by the expert. The normal rules of evidence authentication still apply, even where experts are concerned. But when an expert wants to offer opinions based on the same unauthenticated and unadmitted evidence, excluding that opinion may be an abuse of discretion.

That is the holding of the published opinion in Zuniga v. Alexandria Care Center, LLC (D2d7 Aug. 13, 2021) 2021 WL 3579021 no. B297023. In an employee's PAGA claim, the employee-plaintiff retained two experts. One expert was retained to convert the employer's time records into an Excel spreadsheet. The second expert was retained to opine on the spreadsheet. It was an abuse of discretion to exclude the second expert's opinion merely because it was based on the first expert's excluded report.

And trial counsel may have acted shrewdly in resting her case after the devastating ruling without offering other evidence, as it made it very easy to establish the ruling prejudiced her case.

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Jeff Calkins, a recently-retired senior research attorney with the Court of Appeal, talks with appellate attorneys Jeff Lewis and me about what it is like working at an appellate court ("like a monastery," in a good way), about how the writ panel works, cultural differences in the different district Courts of Appeal, and why the California appellate courts may tend to go easier on trial courts than federal appellate courts.

Jeff also shares his theory on why California appeals are not as much "fun" as federal appeals (hint: it has to do more with the legislatures than the judges), and disagrees with my proposal that Rule of Court 8.1115 be amended to allow parties to cite unpublished opinions.

Listen to the episode here: https://lnkd.in/gC2hWQJX

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An order of contempt is not directly appealable. It is reviewable only by writ. But what about an order of fees following a contempt order? The statute does not provide for appellate review or writ review, and the factors for writ review just do not apply to a cost order. The right to appeal is statutory, and the statutory limits, as we have seen, are an absolute jurisdictional bar to appellate review.

But the Sixth District Court of Appeal recently held (in an unpublished opinion) that contempt cost orders are appealable anyway in C.H. Reynolds Electric, Inc. v. Powers (D6 Aug. 24, 2021) no. H046554 (nonpub. opn.).

So count this as one more exception to the absolute, iron-clad, fuggedaboutit rule of appellate jurisdiction.

And the court went on to afirm anyway, making the deviation seem even more wanton.

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Closing argument at a jury trial are a minefield for potential misconduct. A couple of varieties of misconduct are on display in the published opinion of Jackson v. Park (D2d7 Jul. 27, 2021) 281 Cal.Rptr.3d 634, involving an injury during an auto accident. Defense counsel, capitalizing on an in limine order excluding evidence of blood alcohol content, boldly announced there was "no evidence" of drunk driving. Defense counsel also told the jury the plaintiff had failed to disclose plaintiff's doctor and other witnesses during discovery and the defendant had to "track her down." When the judge admonished counsel to stop because this was not in the record, counsel argued with the judge, in front of the jury, stating it was stated during deposition.

When the jury returned a verdict largely in favor of defendant (defense counsel urged that an award of $15,000 was about right, and the jury awarded $17,000), plaintiff moved for new trial. The judge, noting the evidence made the case a "close call," ruled the misconduct tipped the scales in favor of the defendant, and so granted the new trial.

Calling counsel's misconduct a form of "litigation subterfuge," the Second District Court of Appeal affirmed.

Important tips for closing argument:
• Do not argue exclusion of evidence proves the evidence does not exist
• Do not mischaracterize court rulings
• Do not argue facts not in the record (even if they are true!)
• Do not argue with the judge in front of the jury

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There are two important but subtle rules of civil discovery that come to the surface in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). The first is that you cannot submit the same interrogatory twice: if you don't like the answer (or lack of an answer) you got the first time, you had better move to compel — do not ask the question again. The second is, if you are going to ask a lot of questions (here, 723 of them), you had better be sure they are necessary. Here, they were found to violate the local rules of civility.

Bonus Appellate Tip: Carefully consider your requests for sanctions. If you win a discovery dispute and are awarded sanctions over $5,000, your order is now immediately appealable. Which, in this case, reversed the discovery victory.

Tip: This dispute would not have been immediately reviewable on appeal had the successful movant not sought monetary sanctions. Consider carefully whether to seek discovery sanctions.

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They can't be serious about that. That is what you probably think when you read rule 8.204(a) of the California Rules of Court. It sets forth a lot of pretty commonplace requirements for appellate briefs. It requires tables of contents and authorities, headings and subheadings, that kind of thing. It also says parties must "support each point by argument and, if possible, by citation of authority."

Sure, it is poor form not to include all that. But really, what's the worst that can happen if you slip up a bit on these particulars?

You will find out in The Villas v. Westpark Corte Bella Comm. Assoc. (D4d3 Aug. 12, 2021) no. G059577 (nonpub. opn.).

In sum, for failing to comply with Rules of Court rule 8.204(a) and other briefing defects:
•The court disregarded the parts of the brief that lacked record citations in violation of rule 8.204(a)(1)(C).
•The new arguments in the reply brief not raised in the opening brief were forfeited and not considered.
•All the rest of the arguments made in the appellant's reply brief were forfeited, and not considered.

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The California Supreme Court in *Daly v. San Bernardino County Board of Supervisors* (Aug. 9, 2021) ___ Cal.5th ___ has decided one particular area of the law is unclear and needs "reexamination." When a trial court grants an injunction, and the injunction is appealed, does the injunction still apply during the appeal?

When the Board of Supervisors of San Bernardino violated open-meeting requirements in removing and replacing one of its members, the challenger and a citizen group filed suit and obtained an injunction requiring the Board to rescind the appointment and seat a replacement pursuant to the county charter.

But the Board was not done yet. Hoping to keep the incumbent in office long enough for the upcoming election (see this interesting coverage), the Board appealed, and under Code of Civil Procedure section 916, an appeal automatically stays the order on appeal. But the Court of Appeal denied the Board's petition for supersedeas to effect the stay.

The Supreme Court reversed. And its opinion is a letter to the state legislature to reconsider the appellate stay law.

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Appellate attorney John Reeves offers his pithy summation of the difference between trial attorneys and appellate attorneys.

Motions for new trial are seldom granted. So seldom, in fact, that many attorneys — and judges, too — don't even know what to do when it happens. For example, a plaintiff has a right to a jury trial, and that includes a right to have the jury determine the amount of damages. So what happens when the judge, in ruling on a new trial motions, decides the jury's award was way too high and a remittitur (reduction of the award) is appropriate? How may the judge reduce the jury's award consistent with the plaintiff's right to a jury trial?

That is the situation that arose in Duncan v. Kihagi (D1d1 Aug. 9, 2021) no. A153521 (nonpub. opn.). Following trial in a slumlord lawsuit, the tenant received a verdict of $3.5 million (after a statutory trebling of damages). On the landlord's new trial motion, the judge agreed the verdict should be reduced to $2.7 million. The Court of Appeal explained the procedure for reducing jury verdicts, and even though the judge failed to follow that procedure completely, the court affirmed anyway.

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After discussing the significant increase of amicus briefs filed in the California Supreme Court (and other state high courts and federal courts,), appellate attorney John Reeves discusses with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast what kinds of arguments in an amicus brief appellate judges might be most interested to read. Legal arguments? Or policy arguments?

In a recent case involving more than one case number, the defendant got an early victory in one case, and got an award of attorney fees. The trial court, however, did not like the idea of rewarding one party partway through a complex litigation, so it imposed a sua sponte stay of enforcement of that fee award.

That stay was reversed on appeal in Specialty Baking, Inc. v. Kohanbash (LASC App. Div. May 24, 2021) no. BV033347 (nonpub. opn.). While such a stay may be permissible, the court in making the discretionary ruling failed to consider the factors required under the operative statute. Failure to exercise discretion is an abuse of discretion.

Whenever the topic of stays and bonds come up, that is a good time to consult an appellate attorney.

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Policy groups are more prevalent in our court system than ever, filing amicus briefs in record numbers. In California, amicus briefs are filed in over 37% of Supreme Court cases.

Appellate attorney John Reeves tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that this is a good thing, ensuring court opinions are informed by a wide array of perspectives. Traditionally only constitutionally significant cases drew interest from policy groups, but now almost every type of case garners interest from these nonparties.

Can parties settling a lawsuit agree to a stipulated judgment that is non-appealable? (Yes – that is rather an easy one.) What if there is a dispute whether the settlement has been performed: Is the order deciding that question appealable?

This latter question is taken up in Summit Bridge National Investments IV, LLC v. Meguerditch Panossian (D2d2 Aug. 4, 2021) no. B310067 (nonpub. opn.), and is answered in the negative. After discussing the case, I explain why I think the result is both unsupported and incorrect.

If there is any lesson to be offered here, perhaps it is to avoid stipulating to non-appealability. A stipulated judgment is not appealable anyway. There is such a thing as overdoing it.

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Nine out of every ten appeals are pretty straightforward, simply appealing from a judgment after a trial. But every tenth appeal or so is a headscratcher. This happens a lot in the case of interlocutory orders – critical orders like demurrers and preliminary injunctions that occur before a final judgment. These can devastate the case, yet evade direct appellate review.

There are strategies available to get direct appellate review of certain interlocutory orders. But they should be used with caution.

In the racial discrimination case of Brown v. Arizona Diamondbacks (D3 Aug. 9, 2021) no. C091629 (nonpub. opn.), the trial court sustained the Diamondbacks' demurrer to the plaintiff's claim for racial harassment. Rather than amend, the plaintiff voluntarily dismissed his claims to expedite the appeal. This strategy was sound – or would have been, had he dismissed with prejudice. But he dismissed without prejudice. That was his undoing. His appeal of the demurrer ruling was dismissed.

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Amicus briefs filed in an appeal by nonparties can be influential in the outcome of a case, but appellate attorney John Reeves, who has authored a number of amicus briefs, tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that amicus briefs should not be saying the same things the parties have already said.

Offer a new perspective, or a policy argument, or even a "Brandeis brief" stocked with citations to social science papers. But whatever you do, do not be repetitive.

Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and Tim Kowal that remote court proceedings using video technology may be a way to address an deficiency in access to justice in our judicial system.

Answer: Denials of new trial motions are not appealable.

But these things are never quite that simple, are they?
Here are a few buts:
1.Denials of new trial motions are reviewable on appeal.
2.Orders that only partially deny a new trial motion are appealable.
3.Orders denying statutory motions to vacate and set aside a judgment (e.g., Code Civ. Proc., §§ 473, 663) are appealable. In the article, I offer a strategic consideration in choosing between filing a motion for new trial or a motion to vacate and set aside the judgment.

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Getting writ review in the Court of Appeal is rare – even when writ review is the only appropriate means of review. In a recent opinion in LSG Las Tunas, LP v. A & R Corporation, Inc. (D2d2 Jul. 29, 2021) no. B307534 (nonpub. opn.), the appellant filed a writ petition along with its appeal, but the court summarily denied the writ petition. Later, the court realized writ review was appropriate, and so treated the appeal as a writ.

The procedural curiosity probably came to nothing – the appeal-turned-writ was unsuccessful anyway – but it underscores how difficult it can be to get a writ petition off on the right foot.

The case prompts one to ask: How many other writ petitions that are legitimately worthy of writ review are getting waste-binned during the court's rushed initial review?

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What makes appellate judges change their minds at oral argument? Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that judges can hear the same arguments with fresh ears.

For example, arguments may have been unclear, and oral argument is an opportunity to make it clearer.

Or your brief raised too many arguments and confused the reader, and oral argument may allow you to focus on your best argument.

Appellate attorney John Reeves joins Jeff Lewis and me on the California Appellate Law Podcast to discuss incorporating amicus briefs into your appellate strategy. John discusses Marin Housing Authority v. Reilly, a California case pending possible review by the United States Supreme Court, and has already attracted the interest of amici.

John M. Reeves, Tim and Jeff also discuss amicus briefs, when you should consider soliciting amicus briefs in your appeals, what kinds of arguments are best suited to amicus briefs, and other aspects about practicing appellate law.

Listen to the episode here: https://lnkd.in/g6gbS_a

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I was just wondering this myself: What happens to your arguments – your sound, cogent, and trenchant arguments – in a motion to dismiss an appeal, after the Court of Appeal summarily dismisses your motion? Are your arguments dead and gone? Or may you raise them again in your respondent's brief?

The answer is: You may re-argue your motion to dismiss in your respondent's brief. And, as was the case in Casey v. Sacramento Public Law Library (D3 Jul. 12, 2021) no. C089936 (nonpub. opn.), the court may re-deny your motion.

But even though you may raise your motion to dismiss again in your merits briefing, should you? Or will you just annoy the court? You might consider having an appellate attorney review your motion first.

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Do appellate judges want to hear from you at oral argument? Contrary to many appellate practitioners' perspective in California state courts, Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that the unwritten rule among federal appellate judges is to come to conference with a tentative vote, otherwise they won't get assigned authorship.

Despite this, however, Judge Bacharach has changed his mind many times based on oral argument, and once even wrote two separate opinions, one to affirm, and the other to reverse!

You are wasting your best opportunity to persuade if you are not prepare complete tables of contents in your briefs, Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me.

The table of contents shows your reader the gist and structure of your brief. Yet probably half of litigants are leaving this rich vein unmined.

One of the first questions an appellate attorney tries to answer is whether there is an appealable order. It is pretty obvious why this is important: if the order is not appealable, your appeal will lose.

But have you also considered: if you appeal from a nonappealable order, your entire case might lose?

That is what happened in Villegas v. Six Flags Entertainment Corporation (D2d4 Jun. 29, 2021) no. B295352 (nonpub. opn.). The appellants appealed from the denial of their class certification motion. These normally are appealable under the "death knell" doctrine, because it effectively kills the class action.

But it was not appealable here, and the appeal was dismissed. By the time it was dismissed, the five-year statute had run and the plaintiff-appellants had not brought their case to trial. Case dismissed.

Takeaway: It can be difficult to predict the problems that can arise from appealing a nonappealable order. In this case, at least, it certainly would have been worth consulting an appellate attorney before filing the notice of appeal.

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Avoid "throat-clearing" in your writing, but have a care for when "softening" may be needed.

Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that meaningless expressions, like, "It should be noted that," are largely overused. But they can serve a useful purpose.

I recalled this anecdote about novelist James Thurber, who was once asked: “Why did you have a comma in the sentence, ‘After dinner, the men went into the living-room’?” His answer: “This particular comma was Ross’s way of giving the men time to push back their chairs and stand up.”

Did you request a statement of decision?

Did you object to the proposed statement of decision?

These are among the first questions I ask after there has been a bench trial. Three recent appellate decisions demonstrate how easy it can be to forfeit strong issues on appeal by failing to request a statement of decision, or even when a statement of decision has been issued, by failing to object to omissions or defects to give the trial court the opportunity to correct them.

By failing any of the procedural steps in perfecting the record on the statement of decision, the deadline "implied findings" doctrine will be invoked, by which the Court of Appeal will simply infer that the trial court quietly implied any and all findings needed to affirm the judgment. That doctrine almost guarantees affirmance.

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Angelina Jolie and Brad Pitt went the route of hiring a pro tem judge for their family law case. After years of litigating child custody issues (one child is now 18), Jolie discovered their pro tem judge was working on more cases with Pitt's attorneys than previously disclosed. Getting the feeling she was the third wheel in the courtroom, Jolie filed a statement of disqualification.

Although the Superior Court rejected Jolie's objection, in a published opinion in Jolie v. Superior Court of Los Angeles (D2d7 Jul. 23, 2021) no. B308958, the Court of Appeal granted Jolie's writ petition. The pro tem judge had failed to disclose all of his appointments on Pitt's lawyers' cases, and the judge's work on those cases, in context with his failure to timely disclose it, created the appearance of impropriety requiring disqualification.

Justice Segal wrote a concurring opinion forcefully calling the Judicial Council to end the practice of allowing pro tem judges to accept private payment, noting that, until 30 years ago, it was not only disallowed, it was criminal: "But just because it is no longer criminal for a temporary judge to receive compensation from private parties doesn't mean it's a good idea."

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Christopher Melcher has a nice video explainer on the case here: https://lnkd.in/gbFQz2j.

Are the briefing limits in your court based on page count? Or word count?
If page count, you still may be better off using Times New Roman, says appellate attorney Frank Lowrey in this edition of the world famous CAL Podcast's Lightning Round.

Other vexing questions discussed: One space after a comma, or two? Pled, or pleaded? And where do you stand on the use of the citation parenthetical "(cleaned up)"?

In the ongoing probate litigation over the Disney estate in Lund v. Cowan, No. 20-55764 (9th Cir. 2021), the 9th Circuit recently called probate court "the Unhappiest Place on Earth" in response to Los Angeles Superior Court Judge David Cowan's actions against Walt Disney's grandson, Bradford Lund. Lund had already waited 15 years for his inheritance and won a court declaration of his mental competence. He entered into a settlement agreement to pay his trustees $14.5 million to step down.

But Judge Cowan refused to approve the settlement. Judge Cowan stated: "Do I want to give 200 million dollars, effectively, to someone who may suffer, on some level, from Down syndrome? The answer is no.”

The court did state it found Judge Cowan's comment "troubling." "But judicial immunity shields even incorrect or inappropriate statements if they were made during the performance of a judge's official duties." This includes even actions made with “malice or corruption of motive.” Forrester, 484 U.S. at 227.

In the article, I offer some of my thoughts on the strange American impulse to expand the privileges of the sovereign, and the sad state of our probate court system.

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Specifically, most of the appellants' arguments here were rejected as forfeited. The court also disregarded challenges because the appellants' briefing improperly cited to postjudgment matter in the appellate record in their challenge of the judgment.

The upshot is that great care must be given to the selection of issues on appeal, and whether they are property supported and preserved. Consulting an appellate attorney prior to trial and on appeal may prevent against findings of waiver and forfeiture on appeal.

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A "substantial evidence" appeal is among the toughest to reverse. That is when the challenge to the judgment is based on one of the trial court's factual findings. An appellate court will almost never disturb a trial court's finding on a factual question. To get a reversal, you have to show there is literally no evidence, or the functional equivalent.

But the appellant managed it in Mulberg v. Amster (D1 Jul. 14, 2021) no. A158954 (nonpub. opn.).

The attorney-appellant, serving as trustee, took money from the estate to pay fees owed individually by his beneficiary client. When the court (correctly) surcharged him for that, the appellant went back to his client demanding she pay up. She refused, so the appellant sued. But the court denied his fees, reasoning his prior invoices showed the fees had been paid in full.

Reversing, the Court of Appeal reasoned the fee obligation was obviously unpaid. The invoices showing payment barely merited a "come on, man."

The upshot: If you can frame your appeal of factual findings as arising from undisputed facts, this may improve your chances of success. (Of course, if there are disputed facts that support the judgment, you still must deal with those.)

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Are you using general verdict forms at your next trial? Or special? This can be a critical choice, as appellate attorney Frank Lowrey explains on the California Appellate Law Podcast.

A simple general verdict form cannot tell you whether a certain alleged error at trial influenced the verdict. On the other hand, a special verdict form with multiple interrogatories may lead to inconsistent verdicts. This balancing underscores the importance of having appellate counsel involved pretrial.

Appellate attorney Frank Lowrey exchanges perspectives with Jeff Lewis and Tim Kowal about the recent Mahoney case in which a California Court of Appeal held an attorney in contempt for impugning the court's integrity, and discusses whether the level of civility has declined in the legal profession, and whether perhaps the Court of Appeal overreached by suggesting the integrity of the courts may never be questioned.

Did you know that, when you appeal a mandatory preliminary injunction, the injunction is automatically stayed? An appeal in that instance can be very powerful.

But when is an injunction truly mandatory? Whether an appeal is mandatory or prohibitory can be very tricky to determine. Getting it wrong can be devastating, as the appellant learned in Chanin v. Community Rebuild Partners (D2d5 Apr. 23, 2021) no. B299188 (nonpub. opn.).

The Second District Court of Appeal disagreed that the injunction was mandatory in nature, and concluded the appellant was trying to take advantage of a status quo favorable to her. And because the appellant did not bother to test the proposition in a motion to stay in the trial court, or a petition for writ of supersedeas in the Court of Appeal, the court concluded her failure to comply with the injunction amounted to a willful disobedience giving rise to disentitlement of her right to appeal.

This case is a surprising application of the disentitlement doctrine, because the appellant's conduct was supported by fairly strong legal propositions: (1) on its face, the injunction did appear to be mandatory and thus stayed; (2) the automatic stay does not require the appellant to seek court orders to effect the stay; and (3) the injunction failed a key statutory requirement that it require the moving party to post a bond, and was thus invalid as a matter of law. But the Court of Appeal dismissed the appeal anyway.

The lesson: If an automatic appellate stay seems too good to be true, it might be.

Judge Robert Bacharach of the 10th Circuit is not a fan pop-culture references in legal writing. Too much levity in judicial opinions, the judge says, may tend to relax the standards of professionalism among the bar.

The parties, particularly at the appellate level, are entitled to respect, and "artful" advocacy may be seen as disrespectful. Use with extreme caution!

Filing a notice of appeal is deceptively simple. There is a Judicial Council form you can use. Everyone knows there is a 60-day deadline to file the notice of appeal (though when it starts running can be a little mysterious). There is no reason to consult an appellate attorney for something so simple as filing a notice of appeal.

Is there?

Think again. There are endless confounders in deciding when and what to appeal. A few of them arose in CL Brookshire v. Albers YZI LLC (D2d5 Jul. 14) no. B306001 (nonpub. opn.). Specifically, the case reminds litigants that:

1. No, a defective post-order or post-judgment motion is "invalid" and so will not extend the time to appeal.

2. Yes, even if you have blown the time to appeal, you might still move to vacate the judgment or order. And yes, you might be able to appeal the denial of the motion to vacate. But no, you cannot challenge the merits of the underlying order or judgment. Instead, you have to establish the trial court abused its discretion in denying your motion.

The Upshot: Originally, the plaintiff had a very sound appellate challenge. But instead of just getting on with the appeal, the plaintiff lost by making post-order motions in the trial court.

If you are considering pursuing post-order or post-judgment motions, this is an excellent time to consult appellate counsel.

A recent case shows how recovery of costs can involve large dollar amounts – over $1.5 million – and the application of subtle legal principles and appellate procedure.

After four years of litigation in City of Los Angeles v. Pricewaterhousecoopers, LLP (D2d5 Jul. 8, 2021) no. B305583 (nonpub. opn.), the city eventually dismissed the case, and the contractor sought nearly $1.1 million in costs for electronic discovery. The trial court denied them all, and the contractor appealed.

After an interesting discussion on the appealability of the cost order, the Court of Appeal noted the trial court's statements on the record were ambiguous whether it misunderstood the scope of its authority, or whether it was exercising discretion. But the court ultimately held the trial court misunderstood its authority and thus committed reversible error. What convinced the Court of Appeal the trial court had erred on the law? "Although it is a close question in this case," the court noted, "given the City's [incorrect] primary argument that the costs ... are never recoverable ... we cannot presume the trial court understood the extent of its discretion...."

Takeaway: If you manage to persuade the trial court of your legal proposition, why not ask the trial court to exercise its discretion in your favor as well, just to be safe? Had the trial court also based its ruling on its discretion, the outcome likely would have been much different.

Why aren’t the judges asking me any questions? Is it because I am winning? Or because I am losing? Or because the judges have gone to their happy place?

Appellate attorney Frank Lowrey exchanges experiences with Jeff Lewis and me about cold benches.

Family court appeals are difficult because they delay an already bitter experience. The Court of Appeal is aware of this when it admonishes the family court that a recent appeal "might never have arisen had the trial court exercised its authority to make a capacity determination."

Despite repeated objections by the wife that the husband's recent life-threatening injuries had caused a behavioral change and mental disturbance affecting his capacity, the family judge in In re Marriage of Hermes (D4d3 Jun. 16, 2021) no. G058623 (nonpub. opn.) had credited the husband's attorney's improvident view that the family court does not need to determine capacity issues.

In fact, yes, the family court does need to adjudicate claims of mental capacity.

In the trial court, there is much to be said for the Al Davis rule: "Just win, baby." But leading the trial court to misunderstand its legal obligations should be regarded an exception to that rule.

Here is one reason why trials are so stressful:

What do you do after the jury hears something improper? Object and draw attention to it? Or do nothing and waive?

Appellate attorney Frank Lowrey discusses the options with Jeff Lewis and me. The law presumes that curative instructions purge any prejudice by the offending statements. But one is reminded of the retort Dickens put in the mouth of Mr. Bumble in Oliver Twist upon being informed the law would presume his wife acted at his instruction: "If the law supposes that, the law is an ass — an idiot."

The first question any trial attorney must be able to answer is: What is the theory of my case at trial? Once you've answered that, the next question to consider is: What is the theory of my case on appeal? The attorneys in Mahanuntawong v. Kittithanyaphak (D1d1 Jul. 9, 2021) no. A158610 (nonpub. opn.) had a pretty good answer to that question, but it came too late, and so the court held it was waived.

The court held the appellant forfeited any challenge to defects in the statement of decision by failing to object in the trial court, and forfeited the arguments that the award was excessive because it was not raised in a motion for new trial.

The moment a verdict or tentative decision is released is when an appellate strategy can take shape. But appellate issues may be waived beginning just days later, such as failing to cultivate the statement of decision, or failing to raise key issues in a new trial motion. This is a crucial time to consult appellate counsel.

Legal Writing Tip for the Day: Your readers pay most attention to the end of a sentence. Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that, according to many psycholinguists, readers' comprehension and focus is at its height at the end of a sentence. Craft your sentences accordingly!

Awards for emotional distress can add tens or hundreds of thousands of dollars to a workplace-retaliation claim. But there are limits. And in Briley v. City of West Covina (D2d4 Jul. 1, 2021) no. B295666, 2021 WL 2708945, the court pointed to counsel's personal attack during closing argument as evidence the verdict was based on improper factors."[C]ounsel's attack on the integrity of opposing counsel during his rebuttal argument further suggests that the jury's noneconomic damages award rested on improper factors."

The result was a $1.5 million award was reduced to $100,000. (It probably would have been reduced even without counsel's improper argument.)

Filing a critical motion in limine could be key to your trial.
What about 40 motions in limine?

Appellate attorney Frank Lowrey says he’s heard trial judges refer to these as "stupid motions in limine."

One reason I like to read unpublished opinions is they are a little bit less guarded in their analyses. Even if the outcomes would not be different had the opinion been published, the courts sometimes offer analyses that seem somewhat unusual, or incomplete, and these can give a glimpse into how the justices and their research attorneys are struggling through the issues in the case.

I got this impression reading San Felipe Farms L.P. v. LLY Ranch (D4d3 Jul. 8, 2021) no. G060126. It involves an appeal that seems clearly moot, and from an order that seems clearly nonappealable. But the court for some reason did not want to dismiss the appeal on either of those grounds – and in so doing suggests a possible loophole in the appealability doctrine that may be larger than typically advertised.

The court also noted the appellant had put its toes right on the line of its duty of candor.

How do you use acronyms in your briefs?

Judge Robert Bacharach of the 10th Circuit told Jeff Lewis and me that he wishes that whoever invented acronyms hadn’t: "If you can avoid acronyms, do it." When you make the judge flip back in your brief to look up what an acronym means, or who a party is, you ruin the momentum of your argument.

Starting the 60-day clock for your opponent to file a notice of appeal requires strict compliance with the California Rules of Court, including the service requirements. That means a proof of service. Even actual notice in court is no substitute.

Also, if an unlawful detainer doesn't suit you, have you considered an elder abuse restraining order?

That is what happened in Smith v. Monk (D2d4 Jul. 6, 2021) no. B300975 (nonpub. opn.). Mother settled her unlawful detainer action against daughter, but later decided she still wanted her out. She accomplished this through an elder abuse restraining order.

Daughter's appeal, though unsuccessful, survived mother's challenges to timeliness. Mother failed to trigger the 60-day deadline to appeal because even though the order was personally served on daughter in court, and attached as an exhibit to a later filing, neither of these satisfies California Rules of Court, rule 8.104. The Notice of Entry or file-stamped copy of the order must be separately served and accompanied by a proof of service.

Do you still have to object if you filed a motion in limine? While a denial of a MIL preserves your objections, a deferred ruling preserves nothing.

Counsel must be prepared to make contemporaneous objections at every instance to preserve the objection.

"I have done a lot of appeals," a colleague told me recently discussing how important evidentiary objections were at trial, "and I have never seen a court reverse because of an evidentiary ruling."

Responding to that challenge is Nicholson v. Southern California Edison Co. (D2d7 Jun. 22, 2021) no. B302287 (nonpub. opn.). Injured electricians sued Edison for negligence. The trial court granted summary judgment for Edison by excluding the plaintiffs' testimony.

This was an abuse of discretion. The evidence was based on personal knowledge, and it was relevant to a material fact. Reversed.

The upshot: Do not try to win a summary judgment motion by excluding the opposing party's evidence. Any victory by such means will likely be short-lived.

Legal writing expert Laura Genovich wrote recently that writers should begin their sentences with real things rather than concepts – concretes over abstracts. Judge Robert Bacharach of the 10th Circuit said the same when he joined Jeff Lewis and me on the California Appellate Law Podcast in June 2021.

“Shareholders who are anxious,” not, “Anxiety among shareholders.”

That brought to mind Bryan Garner’s advice to avoid beginning sentences with “However,” which Garner thinks "too ponderous a word." Judge Bacharach agrees, preferring “But” over “However” to begin sentences.

One tactical benefit of filing an appeal is the potential to stay the underlying proceedings. But the automatic stay has many exceptions and limitations, many of which are illustrated in Wong v. Lee (D2d1 Jun. 29, 2021) no. B293892 (nonpub. opn.).

For one thing, if the appeal is invalid: no stay.

And if the appeal only affects one small part of the case: no stay.

(I wish the holding that the SLAPP appeal did not stay the proceedings were published: other cases are less clear on this.)

But these examples are only the tip of the iceberg of stays pending appeal. Trial attorneys can bring a lot of value to their clients by consulting an appellate attorney on these issues.

Judge Robert Bacharach of the 10th Circuit says the science of linguistics demonstrates short sentences tend to be more effective. But take care not to cross the line into writing sentences that are strident or glib. Do not dare your reader to prove you wrong!

When Judge Bacharach visited Jeff Lewis and me on the California Appellate Law Podcast this month, I asked him about this setup: “The jury instructions are inconsistent. Literally.”

Question: Does this short sentence couplet fall on the side of persuasive, or glib?

MS Word by default inserts "passim" in your Table of Authorities. The 9th Circuit discourages it -- the court wants to see every page where the authority is cited (unless the authority appears on nearly every page). See https://cdn.ca9.uscourts.gov/ datastore/uploads/guides/Shell_Brief.pdf.

Bryan Garner's LawProse.org has this entry on passim, suggesting it may be rather archaic by now:

passim (lit., “throughout”) is used in citing an authority in a general way and indicates that the point at hand is treated throughout the work. It’s a fairly erudite citation signal—e.g.: “There is a curious reluctance on the author’s part to let go of linear frameworks—from ‘differentiation to integration’ (p. 13), ‘dependence to interdependence’ (p. 19), ‘childhood to maturity’ (p. 25), and on to ever-higher ‘states of consciousness’ (passim).” Michael Edwards, “Popular Development: Rethinking the Theory and Practice of Development,” J. Dev. Studies, Apr. 1997, at 581.

If you still use it, is there a reason? "MS Word put it there" might not be good enough anymore.

The Court of Appeal awarded over $25,000 in appellate attorney fees as sanctions against the unsuccessful appellants in Trumble v. Kerns (D4d1 Jun. 28, 2021) no. D076490 (nonpub. opn.), and an additional $8,500 in court costs as further sanctions.

The appellants are sisters, and one side of a "dysfunctional family" engaged in a ten-year dispute over their mother's estate. (Anyone bothering to put their assets in a trust ought to give a thought to appointing an independent fiduciary as successor trustee. Otherwise, the trust might as well name the attorneys as beneficiaries.)

The Fourth District Court of Appeal concluded the appellants had forfeited all their arguments by failing to raise them in the trial court and by failing to include a proper statement of facts, supported by record citations, in their appellate brief. What sealed the deal for sanctions: in their opposition to the motion for sanctions, the appellants made their own (untimely) request for $4 million sanctions (based on a precluded issue). That did not sit well with the court.

Georgia appellate attorney Frank Lowrey joins Tim and Jeff to discuss Williams v. Harvey, a recent decision by the Georgia Supreme Court concerning preservation of error and motions in limine, in a June 2021 interview in episode 13 of the California Appellate Law Podcast.

Frank notes the important nuances in rulings on motions in limine: a denial preserves the evidentiary objections raised in the motion, while a deferred ruling (neither granting nor denying the motion) preserves nothing – meaning the trial attorney still needs to object to every instance of the offending matter.

Frank also notes that, in some jurisdictions, a curative instruction is presumes to cure any prejudice. This is the case in California, absent exceptional circumstances. (People v. Navarrete (2010) 181 Cal.App.4th 828, 834 ["Ordinarily, a curative instruction to disregard improper testimony is sufficient to protect a defendant from the injury of such testimony, and, ordinarily, we presume a jury is capable of following such an instruction."].) (One is reminded of the reaction of Dickens’s Mr. Bumble upon being informed the law presumed his wife acted under his direction: “If the law supposes that, the law is an ass — an idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”)

Frank, Tim and Jeff also discussed the recent California Court of Appeal opinion previously discussed on this blog finding an attorney in contempt for accusations made in an appellate brief, and discuss whether the court’s admonition against challenging the courts might be somewhat overstated.

Judges are paid to read your briefs, but not paid to understand them! Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that poorly-crafted sentences are "poisonous to persuasion" because they "destroy the momentum of your argument."

You cannot persuade your reader if you tire out your reader. This was the overarching lesson I took from 10th Circuit Judge Robert Bacharach's new book, Legal Writing: A Judge's Perspective. Page 1: "Legal writing is typically read out of obligation."

Judge Bacharach joined Jeff Lewis and me on the California Appellate Law Podcast to talk about the importance of minding your audience in legal writing, crafting clear sentences, and showing civility. In this first clip, Judge Bacharach begins by urging counsel against personal attacks – the single most effective way to alienate your reader.

Judge Robert Bacharach of the 10th Circuit tells TVA appellate attorney Tim Kowal he likes the new citation parenthetical "(cleaned up)", seen in some appellate opinions and briefs (recently in a SCOTUS decision), because excessive ellipses and internal quotation marks can be distracting to the reader.

But take care not to abuse it by omitting or altering material that could be consequential: do not improve readability at the cost of your credibility!

(Me, I still don't like it. Still won't use it.)

As time passes in litigation, counsel should give a care to changes that may render their client's cases moot. This is particularly common when equitable relief is sought, such as injunctions. And it tends to be more common on appeal.

That is what happened in Brown v. U.S. Bank, N.A. (D5 May 4, 2021) no. F079568 (nonpub. opn.). Plaintiff sued to enjoin a foreclosure, lost, and appealed, but meanwhile the bank terminated foreclosure. Held: appeal of the injunction denial was moot, because the whole point was to stop the foreclosure, which was no longer in play.

In my experience, your mileage will vary greatly in establishing mootness, or an exception to mootness, depending on the circumstances of your case. So do not be misled by this case into thinking mootness is always a straightforward analysis.

When you are trying to determine if an order is appealable, that question is normally pretty cut-and-dried. But not in the probate case of Manvelian v. Manvel (D2d7 Jun. 22, 2021) no. B297334 (nonpub. opn.). The Second District Court of Appeal spent several paragraphs, evaluated the factual record, and threaded its analytical needle through multiple cases, including 100-year-old Supreme Court precedent, to determine that, though it is a "close call," the order denying a motion to vacate an order confirming a settlement was appealable.

You can usually tell whether the order is appealable just by the title or nature of the order. It should not require researching 100 years of precedent to find out if an order is appealable. But that is what it took here.

The Upshot: If you plan to challenge an order or judgment in a motion to vacate in probate court, try to raise issues and evidence that were not available at the time the underlying order or judgment was issued. That will help ensure an order denying your motion is independently appealable.

But if you do not need to raise new issues or evidence, make sure to timely appeal the underlying order or judgment. (In fact, you might timely appeal it regardless. You should consult an appellate attorney in this situation.)

If the trial court ruled in your favor, do not make the mistake of assuming that by serving a "Notice of Ruling" you have invoked the 60-day deadline for your opponent to file a notice of appeal. A notice of ruling is a pointless document from the standpoint of appellate procedure.

Harter v. Rancho Rios Homowners Assn. (D4d1 Jun. 17, 2021) no. D077119 (unpub.) rejected the respondent's arguments the appeal was untimely because a "notice of ruling" does not trigger the 60-day deadline to appeal under CRC 8.104, and serving a tentative ruling that became the final ruling does not trigger CRC 8.104, either.

Harter also confirmed that, although litigants are required to meet and confer before filing a demurrer, failing to do so is not a grounds for challenging the demurrer.

I do not know who needs to hear this, but the Court of Appeal does not want to take any chances: While there are many tools of persuasion in the advocate's toolkit, accusing the court of being on the take from the Irvine Company, and being as corrupt as Tom Girardi, are not among them.

The recent published case from the Fourth District, Division Three, offers "a perfect exemplar ... to illustrate the phrase 'impugn[] the integrity of the court.'" (Salsbury Eng'g, Inc. v. Consol. Contracting Servs. (In re Mahoney) (D4d3 Jun. 10, 2021) no. G057832.)

Frustrated at his loss on appeal, attorney Mahoney decided to let 'er rip in a petition for rehearing. He accused the court of "judicial slight [sic] of hand," being influenced by the "political clout" of the Irvine Company, something to do with Tom Girardi – either resembling Girardi or condoning Girardi-like conduct; no time to clarify, Mahoney was rolling – and "indiscriminately screw[ing]" his client. Mahoney offered no legal argument. And then "doubled down" upon the court's OSC.

The court hit Mahoney with two contempt citations of $1,000 each: one for seemingly impugning the court's integrity, and the second for removing all doubt. (The decision was ordered forwarded to the State Bar as well.)

This commentator thinks the stoics had it right: "By nothing," Epictetus had it, "is the rational creature so distressed as by the irrational." In Mahoney's case, what seemed particularly distressing was the marked pointlessness and witlessness of Mahoney's insults.

One important case that counsel preparing for a trial need to keep ready to hand is People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which prohibits parties from offering otherwise hearsay evidence through their experts.

That is what the plaintiff tried to do in the catastrophic injury case of Townsend v. Olivo (D4d2 Jun. 15, 2021) no. E073183 (non-pub.). The plaintiff suffered injuries that would lead to amputation of his leg. His expert witness testified to the $1.1 million in future medical costs. But the expert admitted he had no knowledge relating to these future procedures and prosthetic devices. He had spoken with others about the costs, however, and so testified about that.

The Fourth District Court of Appeal held this was error. The expert’s testimony about future medical expenses was inadmissible hearsay. The foundational facts were outside of the expert’s personal knowledge, and no other witness supplied them, so no hearsay exception applies.

So you think you understand legal presumptions? Well, do you know the difference between a presumption that affects the burden of production, and one the affects the burden of proof?

If not, do not feel too bad. The trial judge in Felix v. People of California (D5 Jun. 8, 2021) no. F080255 (non-pub.) didn't understand the difference, either.

A defendant moved to set aside a default judgment, submitting a declaration stating he never received the summons and complaint. The trial court held this did not overcome the legal presumption of receipt.

Reversed: That presumption, affecting only the burden of production, disappeared when the defendant submitted his declaration.

Presumptions affecting "the burden of producing evidence" are different from those affecting the "burden of proof." The former just tells you who has to get the ball rolling in terms of putting on evidence, but does not otherwise express any public policy about how the fact question should come out.

Ever wondered what a federal appellate judge thinks of your legal writing? Judge Robert Bacharach of the Tenth Circuit Court of Appeals told Jeff Lewis and me on the California Appellate Law Podcast. Judge Bacharach just published a book titled, Legal Writing: A Judge's Perspective. Judge Bacharach would like you to know:

✎ Writing clearly keeps your readers fresh and alert.

✎ A reader you've burdened with complex sentences and lots of acronyms may be too worn out to be persuaded by your arguments. The judge is willing to go on the journey with you. If you want the judge to arrive at the same place as you, take the straight paths: don't wear out your judge.

✎ The table of contents helps your readers orient themselves to your arguments so they can understand them and then – and only then – be persuaded by them. Yet only half of litigants make use of this highly effective tool!

✎ Next time you consider starting a sentence with "However," try "But" instead.

✎ Why do so many attorneys still think impugning their colleagues and the court is anything other than self-defeating?

✎ Beware of inserting humor and pop culture references into your briefs. Some federal judges employ them in their writing. But many federal judges do not. And at any rate: You are not a federal judge.

You are ready for oral argument. You have checked the tentative and you are ready to explain why the judge got it wrong. But unfortunately, the Superior Court for this particular county does not hold oral argument unless, after the court posts the tentative ruling, you give notice to the court and opposing counsel that you still plan to argue. And that window of time can be as little as an hour.

That was the case in Tearse v. Tearse (Jun. 9, 2021) no. A157576 (non-pub.). The appellant's attorney showed up at the hearing without giving notice of intent to appear by 4:00 p.m. the day before.

But counsel had looked at the court's website at 3:00, she argued, and there was no tentative. Counsel counsel checked with the department at 4:20 and still did not learn of any tentative having been posted.

Well, the court explained, it is true the court posted the tentative a little bit late at 3:10 p.m. So I would have given you until 4:10 p.m. You didn't get here till 4:20. Sorry.

In episode 11 of the California Appellate Law Podcast, TVA appellate attorney Tim Kowal discusses some recent cases with co-host Jeff Lewis in which state and federal appellate courts have found waivers and other errors made by attorneys and parties in the trial court. Like reading a high school yearbook, appellate decisions often capture attorneys making themselves unintentionally conspicuous.
Some of the cases discussed involving "bad yearbook photos" include waiving the right to arbitration by failing to reference it in CMC statements; waiving issues by failing to include them in pretrial statements, trial motions, and posttrial motions; and failing to preserve evidentiary objections.

So you have a judgment that is about to expire, but the judgment-debtor has filed for bankruptcy. Can you renew the judgment? Or does the bankruptcy stay apply until the stay expires?

Yes, says the recent published opinion in Rubin v. Ross (D4d2 Jun. 4, 2021) no. E074210. Yes to both.

Justice Menetrez concurs, asking: both? That doesn't exactly make sense, now, does it?

The Upshot: If you have a judgment, do not be deterred by debtor's bankruptcy from timely renewing that judgment. But even if you are deterred, you still get a 30-day extension of time after the bankruptcy concludes.

I confess I probably would have turned away the defendant in this case had he asked me to take up his appeal from a judgment finding him liable as the alter ego of his company on a loan obligation. Alter ego findings are very difficult to reverse, and the defendant in Creation Harmony Trading, Inc. v. Li (D2d4 May 27, 2021) no. B301004 (non-pub.) personally promised to repay the obligation. And not only is the finding reviewed on the very deferential substantial-evidence standard, but there was not even a court reporter at the trial! Game, set, and match, I would have concluded.

Yet, the defendant got the judgment reversed on appeal. And the defendant showed there are limits to the alter ego doctrine.

The Upshot: In the appropriate case, the Court of Appeal may reverse for lack of substantial evidence supporting all the necessary elements of a claim. And a settled statement can be a viable substitute for a reporter's transcript on appeal. But, still, and although, I would not bet on it.

Class actions only very loosely resemble the practice of law as most attorneys know it. Yes, they involve plaintiffs suing defendants in court before a judge. But most of the class members don't even know they're in the case, and wouldn't know their attorney if he showed up at their doorstep delivering a settlement check (in this case, a check for about $0.15). Things are much different for their attorneys, however, as was the case in Briseño v. Henderson, --- F.3d ---- (9th Cir. June 1, 2021), who proposed to pocket millions from what the Ninth Circuit held to be a collusive settlement agreement in a false advertising case over cooking oil.

The new clarification Briseño provides is that the rule requiring close scrutiny of class settlements applies both pre-class certification and post-class certification.

An ancillary lesson from Briseño is, experts will say anything.

And the much less important but more entertaining lesson from Briseño is: Judge Lee really loves puns (such as: the attorneys suing Wesson here were "hoping to strike oil"); and pop-culture references to Star Wars and the Hamilton musical.

A caution against using acronyms or jargon. If there is anything in your oral argument that you would write in all caps, cut it out.

Two recent appeals were dismissed because the entity defendants were not in good legal standing. One was crosswise with the taxing authorities. (H.T.L. Properties, LLC v. Speck (D2d2 May 4, 2021) no. B299160 (non-pub.).) Another never formally organized. (Dennis Mitchell Oil v. Buehler Family Bakersfield, LLC (D5 Jun. 1, 2021) no. F074897 (non-pub.).) As a result, both their appeals were dismissed.

But the nonexistent entity gets the judgment against it vacated as part of the dismissal. How's that for failing upward?

Family court orders, such as domestic violence restraining orders, are often difficult to reverse because they are subject to a very deferential standard on appeal. A Court of Appeal will only reverse if it concludes the family court abused its discretion. But the abuse-of-discretion standard has limits. And when the family court misapplies the legal and evidentiary rules entirely, its rulings are entitled to no discretion at all.

That is what happened in Marriage of F.M. and M.M. (D1d1 May 28, 2021) no. A160669 (non-pub.). The trial court ruled that although the parties "definitely need to stay away from each other," the court concluded "[t]hat doesn't mean that there needs to be domestic violence restraining orders." Instead, the court ordered mother to move out of the house (even though no one asked for that).

The court also categorically refused to consider mother's testimony that father had threatened violence after the TRO was issued.

But that is not how any of this works, the First District Court of Appeal held.

Reversed and remanded.

The defendants also argued that the plaintiff's attorney called them "cheaters" both during opening statements and closing arguments, and that this inflamed the jury against the defendants.

Not so. An attorney “ ‘may vigorously argue his case and is not limited to “Chesterfieldian politeness.” ’ ” (People v. Fields (1983) 35 Cal.3d 329, 363.)
(SoCal Diesel, Inc. v. Extrasensory Software, Inc. (D2d1 May 3, 2021) no. B290062 (non-pub.).)

And a Reversal Based on Curious Reasoning: Unpublished opinions usually are unpublished because they are uneventful. But sometimes, unpublished opinions are unpublished maybe, just maybe, because they contain reasoning that might not hold up to scrutiny. If at oral argument your panel asks you how it can rely on a particular argument that was not raised below or in the briefs, the answer is: "In an unpublished opinion, your honor." That is the true answer, anyway. It is not the correct answer, obviously. But it is the true answer.

The Satanic Temple, miffed it was not selected to give the invocation at the local city council meeting, sued the City of Scottsdale for discrimination. The plaintiffs tried the case on an as-applied discrimination theory, and when they lost, moved for new findings under a facial discrimination theory.

Held: The new theory was waived because it was not raised in the pretrial statement. And it was not raised in the opening brief, either. The reviewing court will not be the Devil's advocate, either figuratively or literally.
The Satanic Temple's excerpts of record were also stricken because they failed to comply with the rules.

Appeals are rarely dismissed because of defects in the notice of appeal. But rare is not the same as never.

In appeals from orders denying petitions to compel arbitration where preference has been ordered, the notice of appeal must state it is governed by Code of Civil Procedure section 1294, and must attach the preference order and the order being appealed.

The appellant failed to do that in Avery v. All Saintsidence OPCO, LLC (D1d3 May 24, 2021) A162589. As a result, its appeal was dismissed.

The plaintiffs in Aghaian v. Minassian (D2d8 May 24, 2021) no. B296287 are children of Iranians who fled during the Iranian Revolution. Their parents had amassed a large amount of property, and had asked the defendant, a family friend, to recover it for them. Turns out the defendant used the opportunity to enrich himself by some $34 million. The children sued, and the defendant argued Iran was a more suitable forum. Iran? the Court of Appeal asked. That Iran? Iran is not a suitable forum.

But by the time the first appeal was done, the plaintiff had initiated proceedings in Iran. Now can we litigate in Iran, the defendant asked again? Look, the plaintiffs have waived their objections to Iran!

No, the Court of Appeal responded in this second appeal. We have already decided the question. It is law of the case. Our holding is our holding. It cannot be waived.

But: An order denying a motion for inconvenient forum may be reviewed as an interlocutory order following a final judgment. The defendant did not waive his right to appellate review by failing to file a writ petition.

Here is an under-appreciated consideration in appellate procedure: If you are the party that prevailed at trial, and you collect on your judgment pending appeal, what's the worst that could happen? Would it surprise you to learn that the prevailing plaintiff could be ordered to make restitution "of all property and rights lost by the erroneous judgment or order," and could even have a money judgment imposed against it under Code of Civil Procedure section 908? This includes legal interest. And if enforcing the judgment caused the appellant to lose business profits, the judgment creditor can be liable for those losses, too.

That is very nearly what happened to the respondent in Dr. Leevil, LLC v. Westlake Health Care Ctr. (D2d6 Mar. 17, 2021) no. B304339 (non-pub.). A judgment-creditor absolutely can be liable in restitution to the judgment-debtor. And it would have here, too, had the appellant not stipulated to the remedy – a $5.7 million mistake. Ouch.

In case you think me a Cassandra with my frequent warnings about losing your appeals to technicalities, I have three Court of Appeal opinions from just this week to buck you up. All three opinions promise that, no, the Court of Appeal is not looking for picayune errors in your notice of appeal for an excuse to dismiss your appeal.

Also below: A call to colleagues to consider discontinue using the Judicial Council form Notice of Appeal.

It is a horrifying thing to find that your appeal has been dismissed. And it can happen very easily. An appeal can be dismissed because the notice of appeal was filed late – even a day late. Or because the notice of appeal had the wrong box checked on it specifying the wrong type of order (even though specifying the type of order is not even required), or because the notice of appeal specified the wrong authority (which is not required, either).

So what about a notice of appeal that omits the name of the appellant? That is what happened in Westlake Village Marketplace, LLC v. West American Roofing, Inc. (D2d5 May 17, 2021) no. B306358 (non-pub.). Miraculously, that appeal, from the alter-ego judgment, survived. (But the judgment was affirmed.)

Also covered: A tactical choice for plaintiffs: whether "it may be prudent for a plaintiff to sue only the corporation," leaving the alter egos for postjudgment litigation.

One thing about appeals that can potentially can be deceptive is the record on appeal. When you appeal, all your evidence goes in the record. That means the Court of Appeal will consider all your evidence, right?

Not necessarily, as the appellant learned in Epstein v. Prescott Neighborhood Partners, LLC (D1d1 May 13, 2021) no. A159185 (non-pub.). The trial court dismissed the plaintiff's complaint on an anti-SLAPP motion under Code of Civil Procedure section 425.16. The trial court also refused to admit the plaintiff's evidence in opposition to the motion.

But the plaintiff failed to challenge the trial court's evidentiary rulings refusing to admit his evidence. "As a result," the court held, "we can consider only the admitted evidence, and plaintiffs have forfeited any argument that the evidence they unsuccessfully sought to introduce established a probability that their claims would succeed.

Also, arguments raised at oral argument don't count.

The judgment-enforcement case of R Consulting & Sales, Inc. v. Kim (D4d1 May 13, 2021) (non-pub.) provides several useful lessons. For attorneys representing judgment-creditors, the case provides an interesting application of a wage garnishment against a debtor's sham companies. For appellants, it provides a caution in careful drafting of the notice of appeal, and a warning that post-judgment stipulations may be deemed as an assent to the judgment – thus waiving the right to appeal.

It also suggests how new legal theories – which sometimes may be raised for the first time on appeal – will be deemed forfeited if they involve a factual question that was not raised in the trial court.

Finally, it reminds attorneys for prevailing parties to be judicious in their use of redacted billings, and to avoid block-billing.

One of the most effective pieces in winning an appeal is issue selection. Most attorneys know, for example, that "de novo" issues are best on appeal: the Court of Appeal will not pay any deference to a trial court on issues of law.
And most attorneys also know that "abuse of discretion" issues are lousy on appeal. That is because the Court of Appeal will pay great deference to a trial judge's discretionary decisions.
But there is a significant minority of discretionary cases where the trial court so botches its analysis, or misunderstands the law, that the Court of Appeal will pay its orders no deference at all. Instead, on appeal the court will conclude that the trial court failed to exercise discretion. And a failure to exercise discretion is an abuse of discretion.
That is what happened in Southern Cal. School of Theology v. Claremont Graduate Univ. (D2d1 May 3, 2021) no. B302452 (non-pub.). The trial judge thought she did not have authority to apply a "negative multiplier" to reduce block-billed fees. That was incorrect. So back down the case goes.

Appeals are dismissed on untimeliness grounds with regularity. This opinion, dismissing an untimely appeal, provides analysis that may help you avoid a similar fate. The problem, in short, is failing to appreciate that, while Rule 8.108 of the Rules of Court may extend the deadline to appeal, that rule never extends the deadline beyond 180 days from entry of the judgment. If you can remember only that, it will save you from the fate in Brownstone Lofts, LLC v. Otto Miller (D1d1 May 11, 2021) no. A160616 (non-pub.).

One other thing to try and remember: Once a final order is entered, the trial court loses jurisdiction to hear a motion for reconsideration. That means a postjudgment motion for reconsideration is improper and will not extend the time to appeal.

If you were to read the eight-page factual summary of the abusive juvenile in People v. S.O. (D3d2 May 7, 2021) no. E075778, you would be disappointed by the payoff in terms of application of those troubling facts to law. That is because there is none.

Justice Raphael thinks this effort a waste, and dissents to say the appeal should have been dismissed as abandoned. Justice Raphael provides this pithy synopsis:

"Minor's counsel raises no issues. Today's opinion discusses no issues. The opinion is eight pages without a reason to exist. One can say nothing much more succinctly."

The Upshot: Justices do not appreciate impositions on their time. Fully develop the issues in your appeal with factual analysis, record citation, legal analysis, and legal citation. Do not expect the Court of Appeal to find reversible error on its own.

Filing an appeal is not hard. There are only a few basic requirements. But in Ditech Financial LLC v. Talasera and Vicanto Homeowners' Association, 2021 WL 1718214 (9th Cir. Apr. 30, 2021), appellant failed nearly all of them.
To prepare a valid notice of appeal, the notice simply needs to identify the appellants, the judgment being appealed, and the appellate court. Fed. R. App. P. 3(c)(1)(A)–(C). The appellant listed the wrong parties on the notice. And also the wrong case number. When the notice came to describing the judgment being appealed from, appellant listed the wrong judgment, too. The date of the judgment: also wrong.
Presumably, appellants correctly identified the Ninth Circuit as the court to which the appeal was taken.
Appeal dismissed.

Federal Practice Tip: California practitioners who are frequently told that the deadline to appeal can no-way-no-how be extended under any circumstances may forget that the deadline may be extended in federal appeals by motion to the district court. The Ninth Circuit here notes that appellant's amended notice of appeal might have saved its appeal had it sought the requisite extension of time to file it under Fed. R. App. P. 4(a)(5).

On our latest podcast, appellate attorneys Tim Kowal and Jeff Lewis interview Alan Yockelson about genetic testing, Charles Manson, and whether the Cal. Supreme Court is beginning to doubt whether juries are still capable of sniffing out fraud.

Also discussed:
• The value of tentative opinions
• How oral argument can change an outcome
• Asserting objections at trial even when the judge’s mind is made up
• Why justices don't dissent or grant writ review more often

Listen to the podcast here or subscribe to the California Appellate Law Podcast on your favorite podcast player.

As attorneys, it is important to have an internal dialogue asking: Is the judge in our case going to wonder, are we the baddies? "Hans.. I have just noticed something. […]

There is an important point of trial practice about filing dispositive motions in limine in Tung v. Chicago Title (D1d3 Apr. 28, 2021) no. A151526 (published). That point is: Don't. The same point is made about relying on nonstatutory motions for judgment on the pleadings: Here is the quote to put in your opposition: "[W]e caution trial judges to be wary when choosing to decide an in limine motion that, no matter how captioned, functions as a nonstatutory motion for judgment on the pleadings, particularly when the motion is filed on the eve of trial. Doing so, under circumstances like those presented here, is a recipe for reversal."

Finally, there is also an excellent tip for expediting an appeal of an early catastrophic trial ruling and avoiding judgment collection pending appeal: dismissing remaining trivial claims (with prejudice), and stipulating to the prevailing party's fees and costs providing enforcement is to be stayed pending appeal. This was a shrewd move by appellant's counsel here, who served their client well.

Read on.

Here is an appellate procedure trick I wish I'd thought of.
Unlawful detainers are designed for speedy adjudication of landlord/tenant disputes. But there was one way a tenant could readily delay the process by several weeks or months: by filing a motion to quash the complaint. A motion to quash extends the time to respond to the complaint. And when it's denied, the defendant has a statutory right to file a writ petition. The writ petition effectively stays the UD action.
And this de facto stay is free (except for attorney fees).

But the California Supreme Court now holds that that deal, sweet for the tenant but rather sour for the landlord, is not the law.
In the future, tenants should not plan on obtaining a de facto stay by filing an improper motion to quash. That clarity, ironically, comes by way of the Court's having given the tenant in this case a two-year de facto stay while awaiting its decision. The law works funny that way.

Stancil v. Superior Court (San Mateo) (May 3, 2021) S253783

In September 2020, we reported that the Fourth District held Amazon liable in strict liability for an exploding battery sold on its online store, because Amazon inserted itself into the chain of distribution when it charged for the purchase, and stored, packaged, and delivered the product. Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431 (Bolger). Seven months later, the Second District eagerly followed suit in Loomis v. Amazon.com LLC (D2d8 Apr. 26, 2021) B297995 (published).

Justice Wiley's concurring opinion suggests he would have voted twice for reversal given the chance. “[W]e have an easy case that beautifully illustrates the deep structure of modern tort law: a judicial quest to minimize the social costs of accidents—that is, the sum of the cost of accidents and the cost of avoiding accidents.”

That is rather more sugar in my tea than suits me. But we know where Justice Wiley stands.

What's the worst can happen by taking an appeal too early? I am asked this often, and the California Supreme Court case of Kurwa v. Kislinger (2017) 4 Cal.5th 109 always comes to mind. The worst that can happen? Five years of litigation, four trips to the Court of Appeal, two trips to the Supreme Court, and easily six figures in fees, just to get back to where you were when you first asked that question.

The nub of the problem in Kurwa was that plaintiff had two obstacles to appealability. Plaintiff used a too-clever-by-half ploy to get around one (stipulating to waiver of his remaining claim without prejudice, and a tolling agreement to boot). After realizing on appeal this could not create jurisdiction, plaintiff dismissed the rest of his claims with prejudice.
But there was a second obstacle: defendant's cross-claim was still pending. And because the trial court refused to dismiss the judgment based on the ill-conceived stipulation, plaintiff was stuck "in a legal cul de sac."

Client asks an attorney to file a lawsuit over a business dispute. "Your lawsuit has merit," the attorney says, "but it will cost more than it is worth. Based on […]

Attorneys are aware how important it is to confirm the precedential value of a recent published "smoking gun" decision on all fours with your case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it.
This week, the Supreme Court amended rule 8.1115. Fortunately, the amendment is arguably rather sensible. In short, while Supreme Court review is pending, you can still cite your smoking gun case, and the trial court may follow it, even if another appellate court disagrees with it.
Less fortunate is that, if your smoking-gun case was taken up for review on an issue completely separate from your smoking-gun issue, the case loses precedential effect on your smoking-gun issue, too, as collateral damage.

The recent case of Rubio v. CIA Wheel Group (D2d8 Apr. 15, 2021) no. B300021, reminds that awards of punitive damages are reviewed independently by the appellate courts. Rubio also provides a nice illustration how dicta – observations made by prior courts that are not part of their holdings – may be used effectively.
Rubio involved an employee wrongfully terminated because she had cancer. During the trial, employer lied about having knowledge of employee's cancer. (The judge asked: why else did he think employee needed medical leave "for three months? A cold?" Yikes.)

Held: A trial court may properly consider the noneconomic damages in the baseline for a punitive damages award. Combining economic and noneconomic damages here to make the range of harm $115,000 to $165,000, the $500,000 award of punitive damages reflected a multipler of 3.5, which the court held to be permissible.

Facing an adverse judgment, considering a motion for new trial is a must. But beware: win or lose, the order on a motion for new trial can result in thorny procedural issues, both in the trial court and on appeal.
A case in point. Contrares-Velazquez v. Family Health Centers of San Diego, Inc. (D4d1 Apr. 7, 2021) no. D075577, an employment/disability case that resulted in a $1 million compensatory damages and $5 million punitive damages verdict.

This case prompts a reminder that new trial motions can give a result that appeals cannot: Review of the "weight of the evidence," which is fundamentally different from "substantial evidence" review on appeal.
But this case also raises questions about how trial courts are to treat inconsistent verdicts after a partial new trial. The authorities may be split on this issue. Or if not split exactly, then rather unclear.
It takes a gambling sort to go it alone on a new trial motion.

Here is an easy way to get tripped up. A new trial motion is a common postjudgment motion that must be raised to preserve certain issues for appeal (most commonly excessive damages). If the court denies your new trial motion, the denial is not an appealable order. But if the court only partially denies the new trial motion – and partially grants it – that order is appealable.
Put otherwise, an order granting a motion for new trial is appealable. If you are unhappy that the court only partially granted your motion, you must appeal that partial grant.

Posttrial motions are critically important in an appeal and an excellent time to consult appellate counsel.

Instant Infosystems, Inc. v. Open Text, Inc. (D2d5 Apr. 20, 2021) no. B297123 (not published).

The Second District Court of Appeal has the latest update in the fight over Charles Manson's estate. After Manson died in 2017, the probate court ordered Freeman was the sole surviving adult next of kin, and authorized to determine the disposition of Manson's remains. Manson penpal and "murderabilia" collector Channels disputed Freeman's kinship, and moved for genetic testing under Probate Code section 6453.

But there is no authority to require genetic testing under section 6453. So held (and without much trouble, really) the Second District in Freeman v. Channels (D2d2 Apr. 13, 2021) no. B303594 (not published).

Before reaching the question, however, the court found a jurisdictional defect. The court concluded the order appealed was not an appealable order. But the court exercised its discretion to treat the appeal as a writ petition because the improper genetic test "will involve an invasion of Freeman's privacy that cannot be undone," leaving Freeman with "no adequate remedy at law."

So Freeman will get to handle the disposition of Manson's remains. He is legally (perhaps strictly so) the prevailing party.

The Notice of Appeal Is Deemed Filed When the Clerk Receives It...
... not when the clerk happens to get around to filing it.
In recent months – even before Covid, but even more since – I have seen clerks failing to promptly process filings. You have probably noticed it, too. Depending on the filing, this may create problems. For a notice of appeal, which has jurisdictional consequences, the date of filing is a matter of life or death to an appeal.
So what happens if you submit the notice of appeal timely, but the clerk does not actually "file" it until it is untimely?
J.M v. Los Angeles County Dept. of Children and Family Services (D2d2 Apr. 12, 2021) no. B305486 (not published) held: The appeal is timely. Fortunately, neither appelants' right to appeal nor the Court of Appeal's jurisdiction are at the mercy of a clerk's filing idiosyncrasies.

In this appeal of a relatively rare denial of a petition to compel arbitration, Presiding Justice Gilbert and Justice Tangeman each authored an opinion. After you read Gilbert's opinion, you will surely agree with it. But then read Tangeman's opinion, and tell me you haven't changed your mind.

The Upshot: If you decide to litigate despite having a right to arbitrate, consider raising a reservation of the right to arbitrate should new arbitrable claims or defenses be raised. Answers and CMC statements may be a good place to leave these breadcrumbs.

Be prepared for litigation to change shape. Retaining appellate counsel early is a good way be prepared for unexpected turns.

Wells Fargo Bank, N.A. v. Agak (Apr. 12, 2021) no. B300635 (unpublished).

While the parties were clearing up their eviction matter, the tenant-plaintiffs in Mayorga v. Mountview Props. Ltd. (D2d5 Apr. 9, 2021) no. B298284, noticed that landlord-plaintiff had not answered their complaint. So they pounced: they took landlord's default, and got a default judgment of nearly $500,000.
Landlord got the default judgment set aside, which was affirmed on appeal.
But landlord's attorney did his client no favors by his heated rhetoric, referring to appellants' “sloth and stealth” and their purported “extreme lack of hygiene” among other things.

But, an apology goes a long way, so in addition to still prevailing on appeal, the respondent with the forked-tongued attorney still got their costs on appeal.

About 3-4% of appeals are dismissed on technical grounds. But in addition to that, many more go through full briefing on the merits, but still ultimately fail on technical grounds. Here is an appellate effort that failed for purely technical reasons. Ghannoum v. Sevier (D2d2 Apr. 7, 2021) no. B304026 (unpublished). (The court also clearly was not excited by appellant's arguments.)
Ultimately, a loss is a loss. But one wants to avoid losing by way of all arguments being deemed waived.

When a party lacks standing – a legal interest in a case – that is a jurisdictional defect. Jurisdictional defects are fatal, and cannot be waived, or stipulated to.
But not in Silva v. Humboldt Cnty. (D1d1 Mar. 11, 2021) no. A160161. The First District concluded the county waived any standing defects by stipulating to petitioner's standing.

But I am not so sure about this. Standing is a jurisdictional requirement. And when dealing with a jurisdictional objection the party cannot waive it, or stipulate to it, or otherwise be bilked out of it by those nice appellate doctrines routinely trotted out to affirm a judgment.

Nonetheless, the result is otherwise correct, so: Affirmed.

In a surprising split-decision, the Second District held trust beneficiaries who voluntarily decline to participate in mediation forfeit all rights to object to the mediated settlement. Breslin v. Breslin (D2d6 Apr. 5, 2021) no. B301382.
The opinion was first issued on January 26, 2021. Following rehearing, however, Justice Tangeman withdrew from the unanimous opinion and lodged a dissent.

For my part, I agree with Justice Tangeman. And I have two additional concerns about the majority's opinion, concerns not addressed either by the majority or by the dissent.
One is that civil authorities rather emphatically reject the Breslin majority's approach to involuntary mediation here. And another is that there is reason to suspect the majority opinion could be deployed in civil actions.

Watch this space.

The California Supreme Court in In re A.R. (Apr. 5, 2021) no. S260928 held that failing to file a timely notice of appeal is not necessarily fatal in a dependency case. This is a surprising holding because, as most practitioners know, reviewing courts treat appellate deadlines as jurisdictional in nature: a hard limit on the court's very authority to act, regardless of merits, good cause, or equity.
Does the Court's holding undermine this jurisdictional rule? To escape the harsh effect of the jurisdictional requirement of filing a timely appeal, the Court relies heavily on another statutory right: the right to competent counsel in dependency proceedings. (Welf. & Inst. Code, § 317.5.) But as the Court acknowledges, the Legislature does not furnish any remedy for this right. Namely, the Legislature does not suggest any exception to the jurisdictional limits on the courts' powers.

The upshot: I do not expect In re A.R. will lead to any different results in civil appeals in the short term. Courts will continue citing the "jurisdictional" prohibition against considering untimely appeals. But, we may continue to wonder whether they are in earnest.

In this wage-and-hour action in Zhang v. Shao (D4d3 Apr. 1, 2021) no. G058045, the defendant employer made a number of procedural missteps, resulting in plaintiffs' obtaining summary judgment. Before appealing, employers tried to undo the damage in the trial court. But they bungled that, too. They filed a motion to vacate the order granting summary judgment. By the time the trial court ruled on employers' motion, it was more than 60 days later. Too late to appeal the judgment.

Some cautionary lessons from this opinion:
* Beware Using the Judicial Council Form Notice of Appeal
* Beware When Appealing Orders Other Than the Judgment Itself
* Beware Late Settlements of Appeals

Also: The court inartfully states the law re what is required in a notice of appeal.

There are a few curious turns in Marriage of Sellers (D2d6 Mar. 25, 2021) 2021 WL 1134891, No. B306844 (unpublished). While unpublished, it provides a good roadmap – with citable authority – to making a limited appearance on behalf of an out-of-state litigant without waiving jurisdictional challenges.

And if one is inclined toward a cynical view about appellate courts' selective treatment of appealability issues as "jurisdictional," it furnishes some confirmation of that, too.

Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals, including: pitfalls in failing to make crucial posttrial motions (FRCP 50); the vastly different approaches to oral arguments in federal court; and the impact of amicus briefing on the practice of appellate law.

The Good News for Defendant: The Ninth Circuit reversed plaintiff's summary judgment on its breathtaking $1.8 billion Lanham Act claim.
The Bad News: In light of all defendant's discovery abuses, the Ninth Circuit wonders aloud whether the district court, when reconsidering the matter, might simply enter a default judgment against it on remand.

There is no duck blind in civil discovery: you don't get to take shots at the other side's evidence if they don't get to take shots at yours.

The concurrence concludes with this chilling suggestion: "I share the majority's opinion that the district court could consider entering discovery sanctions. See supra note 5. In my view, appropriate sanctions could even include a default judgment against Defendants-Appellants, if the district court deems it justified."

I previously reported a case suggesting that a legitimate Covid excuse might afford some relief from the otherwise strict deadline to file a notice of appeal. Yesterday, however, another case rejected just such a argument.
The recent case is Yuzon v. Contra Costa County Comm. Coll. Dist. (D1d2 Mar. 29, 2021) no. A161834 (unpublished). Appellant there filed his appeal just one day late. He noted the trial court was closed due to Covid. So was his attorney's office. But the Court was unsympathetic.
Appeal dismissed.

On the latest episode of the California Appellate Law Podcast (available Tuesday, Mar. 30 at www.CALPodcast.com), co-hosts Jeff Lewis and I discuss with guest Cory Webster the importance of Federal Rule of Civil Procedure 50, governing motions for judgment as a matter of law, which must be made both before submission to the jury and after judgment. If appellant could have raised an issue in a motion for judgment as a matter of law but failed to do so, that issue is waived on appeal.

The Ninth Circuit helpfully furnishes a recent example in Brown v. County of San Bernardino, 2021 WL 1054561 (9th Cir. Mar. 19, 2021). Brown appealed after her civil rights claim failed on grounds of qualified immunity. On appeal, she ran into several waiver and forfeiture issues.

While Brown was pro se, trial attorneys' job of persuading juries often leaves good appellate arguments underdeveloped until it is too late. In federal trial practice it is especially important to consult appellate counsel before and during trial.

In another cautionary tale for respondents on appeal, the Second District in this appeal of an order denying arbitration holds the trial court erred in finding an arbitration agreement unenforceable. The opinion in Alvarez v. Altamed Health Servs. (D2d8 Feb. 4, 2021) No. B305155 (published) suggests a couple ways respondents might try to shore up potential defects in their judgments before exposing them to the crucible of appeal.

Upshot: Do not overlook the statement of decision process at the end of a critical hearing or bench trial. The statement of decision is often the single most important document the Court of Appeal will review. Either party may drastically alter the meaning and effect of that document by making a strategic request for findings under Code of Civil Procedure section 632 and Rules of Court rule 3.1590.