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.

Watch the clip here.

This clip is from a June 2021 interview in episode 12 of the California Appellate Law Podcast here.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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.

The Death Knell Doctrine Does Not Apply When PAGA Claims Are Also Asserted:

Unfortunately for the appellants, the death-knell doctrine does not apply – and the denial of class cert is not appealable – when the plaintiff-appellants also have PAGA claims. (Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 311 (Munoz) [“Given the potential for recovery of significant civil penalties if the PAGA claims are successful, as well as attorney fees and costs, plaintiffs have ample financial incentive to pursue the remaining representative claims under the PAGA and, thereafter, pursue their appeal from the trial court's order denying class certification. Denial of class certification where the PAGA claims remain in the trial court would not have the ‘legal effect’ of a final judgment ....”].)

Plaintiffs’ appeal, therefore, was from an interlocutory, nonappealable order.

A Defective Notice of Appeal – Including Appealing from a Nonappealable Order – Does Not Toll the Five-Year Statute to Bring a Case to Trial:

Normally, taking an appeal stays the trial court proceedings. Code of Civil Procedure section 916, subdivision (a) provides that “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby...."

The automatic appellate stay tolls the five-year statute under Code of Civil Procedure section 583.310. The three statutory exceptions that toll the five-year limit are periods when: “(a) [t]he jurisdiction of the court to try the action was suspended[;] [¶] (b) [p]rosecution or trial of the action was stayed or enjoined[;][and] [¶] (c) [b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile.” (§ 583.340, subds. (a)-(c).)

But the automatic appellate stay under section 916 only applies "upon a 'duly perfected' appeal." (Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 146 (Hearn Pacific).) It therefore follows that an “invalid” appeal does “not affect the trial court's jurisdiction to proceed. [Citations.]” (Id. at pp. 146-147; see also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666 (Pazderka) [If an “order is nonappealable, the appeal was never perfected and the trial court retained jurisdiction ....”].)

At this point, however, it is fair to ask: Who gets to decide if the appeal is defective? If the notice of appeal is defective on its face, then the rule makes sense. But what if the question of appealability or nonappealability turn on factors extrinsic to the notice of appeal?

Under Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401 (Hopkins), for example, there is support for the argument that where the appealability or nonappealability "depends on facts that are at least theoretically disputable," then "[a]rguably the appellate court acquires exclusive jurisdiction in such a case to determine whether the appeal is in fact untimely, and until it has made that determination the trial court is without power in the matter.”

Here, the appellants noted the trial court itself said, "I think I've lost jurisdiction," and "I don't have jurisdiction. I can't do nothing [sic]." So how can the appellants be charged with the time consumed by the appeal when the trial court acquiesced in the putative stay?

But the Second District Court of Appeal here was not persuaded. The existence of the appellants' PAGA claims were not disputable. The appeal was not perfected. Thus, the appellants did not get the benefit of the extra 118 days consumed by the dismissed appeal, and five-year period expired.

Takeaway: Appellants ultimately lost their entire case simply by taking an appeal from a nonappealable order. Almost certainly no one imagined the potential for such an outcome. 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.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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.”

Watch the clip here.

This clip is from a June 2021 interview in episode 12 of the California Appellate Law Podcast here.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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.

Failure to Request a Statement of Decision Waives Any Error of Omitted Findings:

Even when no party requests a statement of decision, the trial court typically issues a reasoned decision following a bench trial. What is the significance of the trial court's reasoning?

The answer: Not much.

This is what happened in Ko v. Ly (Jul. 26, 2021 D2d8) no. B303438 (nonpub. opn.), involving a series of business and real estate investment transactions that went sour. After a bench trial, the trial court issued a "partial tentative statement of decision" in favor of the plaintiff. While a tentative decision “may be valuable in illustrating the trial judge's theory,” it will not “be used to impeach the order or judgment on appeal. ... In the absence of a statement of decision, a reviewing court looks only to the judgment to determine error.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268 (Shaw).)

The defendant-appellant argued that the trial court failed to make any findings concerning one of the breach of contract claims at issue, and thus the judgment against the defendant on that claim could not stand. But the appellant could not establish this omission because it had failed to request a statement of decision. In the absence of a formal statement of decision duly demand by the appellant pursuant to Code of Civil Procedure section 632, the reviewing court will “presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record. In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence.” (Shaw, supra, 170 Cal.App.4th at p. 267.)

Failure to Object to Missing Finding Creates Implied Finding Against Appellant:

So the appellant has to request a statement of decision. But what happens if the appellant has requested the statement of decision, but on one critical issue, the trial court doesn't make a finding one way or the other? The lesson in Odell v. Salvation Army (Jul. 23, 2021 D2d4) no. B306219 (nonpub. opn.) is that failing to alert the trial court to the omission is probably fatal.

In Odell, the appellant sought to invoke contractual arbitration. There was a dispute whether the plaintiff had signed the contract with the arbitration clause. The appellant argued both that the plaintiff had signed the contract, and that, even if the plaintiff had not signed it, an implied-in-fact contract was created because the plaintiff received the contract document and remaining employed.

The Salvation Army requested a statement of decision (though it neglected to specify the controverted issues on which findings were requested). (Code Civ. Proc., §§ 632, 1291.) But in its statement of decision the trial court stated: "The sole issue" is whether the contract was signed. The court omitted any findings about the appellant's implied-in-fact contract theory. The appellant raised this defect on appeal.

But the challenge did not succeed. Unless an appellant alerts the trial court of an omission in a statement of decision, the Court of Appeal will invoke the implied findings doctrine and infer the trial court intended to make the omitted finding against the appellant:

"Although the statement of decision did not expressly address the Salvation Army's argument that Odell had entered into an implied-in-fact arbitration agreement, the Salvation Army did not object to this omission. Thus, we presume the trial court impliedly found that the Salvation Army failed to prove the existence of an implied-in-fact agreement. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2020) Ch. 8-B ¶ 8:23 [“Appellate courts ... invoke the doctrine of ‘implied findings’ where the parties failed to timely bring alleged deficiencies in a requested statement of decision to the trial court's attention”].)"

To Preserve a Challenge to a Finding, the Appellant Must Request a Statement of Decision Making the Finding, and Object to the Omission:

The appellant gets the statement-of-decision procedure right in Bernstein v. Box-N-Go, LLC (Jul. 27, 2021 D2d3) no. B297863 (nonpub. opn.). But as the lengthy analysis indicates, it is not always easy.

Bernstein dealt with a dispute over company management, with the plaintiff having been ousted from the defendant company by the individual defendants. But in finding for the plaintiff, the trial court found that all defendants were liable for breach of a purchase obligation to the plaintiff, which the operating agreement rather plainly made the obligation of the company alone.

The individual defendant-appellants challenged this finding by requesting a statement of decision, and objecting to the finding in the proposed statement of decision. But the trial court overruled the objection.

When the appellant raised the challenge again on appeal, the plaintiff-respondent argued the appellant still had not done enough to preserve the challenge. The respondent argued the appellant's objection to the proposed statement of decision had focused on the lack of evidence, rather than the finding itself.

The Court of Appeal held the appellants had sufficiently objected to the proposed. While generalized disagreements with a proposed statement of decision are insufficient, the appellants' objections were specific enough because they identified the specific issue that "judgment should only be awarded against [the company] and not the individual defendants."

As a result, the court held that "we cannot infer that the trial court intended to make an alter ego finding when the record shows the court declined to do so after defendants objected to the proposed statement of decision on that specific ground." (Code Civ. Proc., § 634; Culbertson v. Cizek (1964) 225 Cal.App.2d 451, 465–466 (Culbertson); In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133–1134 (Marriage of Arceneaux).)

Although unpublished, the opinion provides a good summary of the applicable published authorities on the procedures for requesting and objecting to statements of decision. These authorities are pasted below for you to clip-and-save:

Code of Civil Procedure section 632 directs the trial court, upon the trial of a question of fact, to “ ‘issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. ’ ” This requirement “ ‘is for the benefit of the court and the parties.’ ” (Whittington v. McKinney (1991) 234 Cal.App.3d 123, 126.) “ ‘To the court it gives an opportunity to place upon [the] record, in definite written form, its view of the facts and the law of the case, and to make the case easily reviewable on appeal by exhibiting the exact grounds upon which judgment rests. To the parties, it furnishes the means, in many instances, of having their cause reviewed without great expense.’ ” (Id. at pp. 126–127.)

Because the statement of decision reflects the trial court's resolution of disputed factual issues, it necessarily affects the scope of appellate review. (See Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2020) ¶¶ 16:197 to 16:216.5.) “Where [the] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.” (Marriage of Hoffmeister, supra, 191 Cal.App.3d at p. 358.) But “[w]hen a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court ..., it shall not be inferred on appeal ... that the trial court decided in favor of the prevailing party as to those facts or on that issue.” (Code Civ. Proc., § 634.) Under this mandate, a proper objection to a proposed statement of decision avoids the doctrine of implied findings, and we will not presume that the trial court made a factual finding necessary to sustain the judgment unless the finding was explicitly stated. (See Culbertson v. Cizek (1964) 225 Cal.App.2d 451, 465–466 (Culbertson); see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Marriage of Arceneaux) [“if omissions or ambiguities in the statement are timely brought to the trial court's attention, the appellate court will not imply findings in favor of the prevailing party”].)

Thus, “[w]ritten findings are required on all material issues raised by the pleadings and evidence, unless they are waived, and if the trial court renders judgment without making findings on all material issues, the case must be reversed on appeal. [Citations.] Reversal is compelled if there was evidence introduced on such issues and this evidence was sufficient to have sustained [a] finding in favor of the party complaining.” (Duff v. Duff (1967) 256 Cal.App.2d 781, 785 (Duff).)

A party is not required to object to legal errors appearing on the face of the statement of decision, as such errors are not waived. (United Services Auto. Assn. v. Dalrymple (1991) 232 Cal.App.3d 182, 186.) And, where a statement of decision clearly expresses the legal and factual basis for the trial court's resolution of controverted issues, we will not imply findings that the trial court did not make. (See Paterno v. State of California (2003) 113 Cal.App.4th 998, 1015 [“ ‘When the record clearly demonstrates what the trial court did, we will not presume it did something different’ ”].)

And on the subject of properly preserving objections to the statement of decision:

Code of Civil Procedure section 634 “does not specify the particular means that the party may use to direct the court's attention to the claimed defects in the statement [of decision].” (Marriage of Arceneaux, supra, 51 Cal.3d at p. 1134.) Nonetheless, when read together with rule 3.1590 of the California Rules of Court, the statute “clearly contemplate[s] any defects in the trial court's statement of decision must be brought to the court's attention through specific objections to the statement itself, not through a proposed alternative statement of decision served prior to the court's issuance of its own statement.”2 (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380 (Golden Eagle); see also Marriage of Arceneaux, at p. 1138 [a party may not “avoid the presumption [of correctness] merely by asking for findings on an issue without challenging the findings when actually made”].) Beyond this directive, the objecting party needs only to identify the alleged omission or ambiguity “with sufficient particularity to allow the trial court to correct the defect.” (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 498 (Ermoian); Golden Eagle, at p. 1380 [an objection is sufficient if it “allows the court to focus on the facts or issues the party contends were not resolved or whose resolution is ambiguous”]; cf. Marriage of Arceneaux, at p. 1138 [“it would be unfair to allow counsel to lull the trial court and opposing counsel into believing the statement of decision was acceptable, and thereafter to take advantage of an error on appeal although it could have been corrected at trial”].)

Finally, I note that one of my most satisfying appellate wins came almost entirely as a result of perfecting the record on a statement of decision, which crystallized the fact that the trial court had indeed omitted findings on essential issues.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

As the legal community tests the waters with in-person trials after the Covid lockdowns, pro tem judges may continue to be an attractive option. Like private arbitration, pro tem judges offer more flexibility and availability than Superior Court judges. And contrary to arbitration, parties electing to use a pro tem judge preserve their right to appeal.

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."

Jolie OKs the Pro Tem Judge's Original Disclosures, But Subsequent Belated Disclosures Prompt Jolie to Object:

Jolie and Pitt selected Judge John W. Ouderkirk (Ret.) for their case. (Judge Ouderkirk presided over the Reginald Denny trial in 1993.) Judge Ouderkirk disclosed his involvement on some other cases that also happened to involve Pitt's attorneys. Jolie did not object. In fact, the parties both agreed to extend Judge Ouderkirk's appointment. Judge Ouderkirk made disclosures of other cases he was working, including where Pitt's attorneys were involved as counsel, and even noting the possibility he may take future cases that "might involve a party, lawyer, law firm and/or witnesses involved in the Jolie/Pitt matter." This apparently was ok by Jolie in 2018, who agreed to extend Judge Ouderkirk's appointment again in both 2018 and 2019.

Apparently unhappy with Judge Ouderkirk's 2019 custody ruling, Jolie requested additional disclosures. It turned out that Judge Ouderkirk had taken two new matters in which Pitt's attorneys were counsel of record. Worse, Judge Ouderkirk apparently had overlooked a 2017 case in his prior disclosures that also involved Pitt's counsel.

Jolie filed a statement of disqualification, and the Judicial Council appointed Orange County Superior Court Judge Larsh to the matter. Judge Larsh denied disqualification, finding Jolie's statement untimely, as the recent disclosures "did not substantially change from the 2018 disclosures."

Jolie filed her petition for a writ of mandate in the Court of Appeal four days later. Under Code of Civil Procedure section 170.3(d), review of an order denying disqualification of a judge “may be reviewed only by a writ of mandate from the appropriate court of appeal.”

About three weeks later, the Court of Appeal issued an order to show cause why Jolie's relief should not be granted. (But curiously, the court denied Jolie's request for a stay of further proceedings before Judge Ouderkirk in the meantime. The opinion notes "an extended evidentiary hearing" proceeded before Judge Ouderkirk after the OSC issued. Apparently this was wasted effort that would have been avoided by the issuance of a stay.)

Legal Standard for Judicial Disqualification:

Pro tem judges are authorized under article VI, section 21 of the California Constitution. But pursuant to judicial canon 6(D)(3)(a)(vii)(C), a temporary judge must “from the time of notice and acceptance of appointment until termination of the appointment,” disqualify himself or herself if, for any reason, “a person aware of the facts might reasonably entertain a doubt that the temporary judge would be able to be impartial.” Likewise, canon 6(D)(5)(a) requires the temporary judge to disclose in writing any information relevant to canon 6(D)(5)(a), including "personal or professional relationships known to the temporary judge...with the party, lawyer, or law firm in the current proceeding."

When do the disclosures have to be made? California Rules of Court rule 2.831(d) requires that matters subject to disclosure to the parties under the Code of Judicial Ethics must be disclosed no later than five days after designation as a temporary judge or, as to matters not known at the time of designation, “as soon as practicable thereafter.”

But the failure to timely disclose does not create an automatic disqualification. Instead, under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) (and for pro tem judges, canon 6D(3)(a)(vii)(C)), the judge must be disqualified if “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”

Standard of Review for Judicial Disqualification Is De Novo:

Rejecting Pitt's argument that disqualification is reviewed for abuse of discretion, the Second District Court of Appeal noted that the Supreme Court in Haworth v. Superior Court (2010) 50 Cal.4th 372, 389 (Haworth) had not decided that question, but that in the context of private contractual arbitration involving failure to disclose, the standard was de novo. (Haworthsupra, 50 Cal.4th at p. 383. See Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 391-392 [“[t]he weight of authority supports that where, as here, the relevant facts are undisputed, a de novo review standard applies to a section 170.1(a)(6)(A)(iii) challenge to a claimed appearance of partiality”].)

The Temporary Judge's Untimely Disclosures Mandated Disqualification:

The court held that Jolie's statement of disqualification was not untimely. Delay in seeking to disqualify a judge “constitutes forfeiture or an implied waiver of the disqualification.” (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337.) But “[a] party cannot waive a right she does not know she has.” (Honeycutt v. JPMorgan Chase Bank, N.A. (2018) 25 Cal.App.5th 909, 931 (Honeycutt).)

The Superior Court had noted Jolie was on notice of Judge Ouderkirk's "significant history" of serving on cases in which Pitt's attorneys were counsel of record. "True," the Court of Appeal notes, "but history is different from current events." Only recently had Jolie learned that Judge Ouderkirk had been engaged for two new matters, and Jolie only learned it because she asked – Judge Ouderkirk had failed to comply with his automatic disclosure duty.

Judge Ouderkirk blamed his assistants for failing to disclose. But that excuse doesn't work for attorneys, and it doesn't work for judges, either. "No more than an attorney can excuse his or her misconduct by blaming an assistant, Judge Ouderkirk must accept responsibility for the ethical violation that occurred here. (See canon 6D(2)(a) [a temporary judge must comply with canon 3C(1) requiring the discharge of administrative responsibilities without bias and with competence]; cf. Layton v. State Bar (1990) 50 Cal.3d 889, 900 [an attorney cannot escape responsibility for his breach of ethics by blaming his secretary]; Honeycutt, supra, 25 Cal.App.5th at p. 929, fn. 12.)"

As to disqualification, the court held that disqualification was required under section 170.1(a)(6)(A)(iii) and canon 6D(3)(a)(vii)(C). The circumstances relevant here were: (1) the temporary judge failed to voluntarily disclose new professional relationships; (2) those professional relationships "renew[ed] and expand[ed] the prior relationships; and (3) Jolie had a new attorney, who had no other professional relationships with the temporary judge. "When coupled with Judge Ouderkirk's breach of his ethical obligation to timely disclose the new professional relationships in 2019 and 2020, the broad standard of those provisions—“might reasonably entertain a doubt”—has certainly been satisfied."

Of significance was the fact that Jolie had a new attorney: "we do not believe it is irrelevant that Jolie is now represented by someone who is not a repeat-player in Judge Ouderkirk's court....That only one side in a case is represented by counsel who regularly uses the services of a privately compensated judge is one of the facts of which the hypothetical reasonable person would be aware in assessing whether that judge appears to be biased."

Concurring, Justice Segal Calls to End Privately-Paid Judging:

Justice Segal begins his pointed concurrence this way:

"I agree entirely with the opinion of the court. I write separately to express my concern that the following three propositions are currently the law in California: (1) Temporary judges are judges; (2) Judges cannot be privately compensated; (3) Temporary judges can be privately compensated. One of these statements must be wrong. I believe it is (3)."

Justice Segal goes on to remind the reader that, until just 1992, privately paid judging was not only not permitted, it was criminal. Some excerpts:

"when the Judicial Council proposed rules that recognized such a thing as a “privately compensated temporary judge,” several sitting judges responded with comments. Judge Robert H. O'Brien of the Los Angeles County Superior Court wrote that “joint operation” of the court “with private enterprise is an improper commingling of the [judicial] branch of government with private judging associations or individual private judges.”"

"Judge James T. Ford of the Sacramento County Superior Court wrote that privately compensating temporary judging was probably criminal."

"Judge Ford wrote: “While clearly not adopted with this recent phenomenon in mind, the Code stands for an important principle: justice and money do not mix. Judging is not in any way a private function; it is a quintessential public function, and should be administered without regard to compensation of the judge.”... “I urge the judiciary to recognize that privately compensating judges pro tempore is illegal and pernicious. We are not for sale, nor is the product of our labor.” (1992 Judicial Council Report, pp. 4, 25, 27, letter from Judge James T. Ford, Aug. 20, 1992.)"

"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. The Legislature directed the Judicial Council to prescribe rules governing compensation of temporary judges. I believe the Judicial Council should adopt the rule its ad hoc committee recommended in 1993: Temporary judges may be paid by the court, but may not be privately compensated except when serving as court-appointed referees. The Judicial Council created the term “privately compensated temporary judge,” or at least approved the concept. In my view, it is time for the Judicial Council to reconsider that decision."

Watch this space.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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)"?

Watch the clip here.

Appellate attorneys Jeff Lewis and Tim Kowal's entire interview with Frank Lowrey can be found at episode 13 of the California Appellate Law Podcast here.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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.”

Lund's attorney immediately informed Judge Cowan that Lund did not have Down syndrome (a 10-day trial in Arizona state court already adjudicated this). Judge Cowan refused to retract the statement. He approved the trustees' payment, but refused to allow Lund to replace them, Lund's attorneys said. Judge Cowan then appointed a temporary guardian ad litem over Lund, without holding a hearing.

Lund filed a statement of objection to Judge Cowan for judicial bias under Code of Civil Procedure section 170.1 because of the Down syndrome comment. Judge Cowan struck the statement under section 170.4(b) for setting forth "no legal grounds for disqualification."

Lund responded by suing Judge Cowan in district court, asserting due process claims under 42 U.S.C. § 1983, a Americans with Disabilities Act claim, and declaratory relief claims. The district court dismissed the claims with prejudice.

Claims Held Moot After Judge Cowan Reversed Himself:

Before briefing in the 9th Circuit was completed, Judge Cowan discharged the guardian ad litem and reassigned the case to a new judge. The 9th Circuit held this mooted most of Lund's claims.

“A party must maintain a live controversy through all stages of the litigation process.” Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 797 (9th Cir. 1999) (cleaned up). “If an action or a claim loses its character as a live controversy, then the action or claim becomes moot.” Id. at 797–98 (cleaned up).

The court held that Lund "no longer faces any harm from the appointment of the guardian ad litem because Judge Cowan has lifted the order appointing her. And any possibility of future harm sounds only in speculation, especially because Judge Cowan has transferred this case to another judge...."

ADA Claim Barred by Absolute Judicial Immunity:

The 9th Circuit also rejected Lund's ADA claim for money damages, invoking the doctrine of judicial immunity. “It is well settled that judges are generally immune from suit for money damages.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001).

Lund argued that Judge Cowan's derogatory and baseless comment was not specifically made in the context of ruling on a motion. Rather, Judge Cowan uttered it during a settlement hearing. The 9th Circuit rejected this distinction: "We reject a cramped and illogical reading of a judicial act that would include only instances when a judge expressly decides a formal motion or request. Indeed, the Supreme Court has remarked that even when a proceeding is “informal and ex parte,” that does not necessarily deprive “an act otherwise within a judge's lawful jurisdiction ... of its judicial character.”" Forrester v. White, 484 U.S. 219, 227 (1988).

The court describes the origin and purpose of judicial immunity:

"“Judicial immunity apparently originated, in medieval times, as a device for discouraging collateral attacks and thereby helping to establish appellate procedures as the standard system for correcting judicial error.” Id. at 225.

"Judicial immunity also serves the goal of judicial independence. As the Supreme Court has noted, “it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, 80 U.S. 335, 347 (1871). Subjecting judges to liability for the grievances of litigants “would destroy that independence without which no judiciary can be either respectable or useful.” Id. In some cases, this commitment to judicial independence might result in unfairness to individual litigants. See Stump v. Sparkman, 435 U.S. 349, 363 (1978). But it is precisely in those types of unfair or controversial situations that judicial immunity may be more necessary to preserve judicial independence. Id. at 364."

Indeed, in the example of Mireles v. Waco (1991) 502 U.S. 9, after a defense lawyer failed to appear for a scheduled hearing, the judge instructed the police sent to arrest him to "rough him up a little" to teach him not to skip court dates. Despite the judge's possibly criminal actions that resulted in a police beating, the Supreme Court afforded absolute immunity because the misbehavior occurred while presiding over a court.

(Comment: Samuel Johnson, the famous British man of letters, had this to say about the doctrine that "the king can do no wrong": "'Sir, you are to consider, that in our constitution, according to its true principles, the King is the head; he is supreme; he is above every thing, and there is no power by which he can be tried. Therefore, it is, Sir, that we hold the King can do no wrong; that whatever may happen to be wrong in government may not be above our reach, by being ascribed to Majesty. Redress is always to be had against oppression, by punishing the immediate agents. The King, though he should command, cannot force a Judge to condemn a man unjustly; therefore it is the Judge whom we prosecute and punish.'" The extent to which modern Americans have expanded the privileges of the "sovereign" to nearly every agent of the state may have struck the 18th century monarchist as rather disturbing.)

Thus, the 9th Circuit held Judge Cowan's baseless accusation that Lund had Down syndrome, and his baseless assumption that this rendered him incompetent, "easily falls within the purview of a judicial act" because it was made "from the bench during an official settlement approval hearing" and "directly related to" the decision "whether to approve a proposed settlement agreement," and because "Lund's competency was central to the litigation."

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.

Final Note:

The OC Register quotes Rick Black, a director at the Center for Estate Administration Reform in North Carolina, who said about this case: “The system is broken. This is purely an estate-trafficking case and it is being managed by predatory attorneys.” The 9th Circuit, on the other hand, suggests Lund's remedy is through the appellate courts, not federal lawsuits. But I have seen probate and conservatorship cases just get even further mired in the Court of Appeal.

In this commentator's view, what is needed is legislative reform. When basic civil liberties and bodily autonomy are concerned, the needful thing is to have lawyerly standards. The probate system has too few of these. Elastic discretionary standards, which are more typical of the probate system, afford no safeguards to a person's basic rights. They also neuter the right to meaningful appellate review.

The current system also tends to elevate dubious medical guesswork to the status of hard evidence. In the 1800s some doctors insisted that slaves ran away because of a medical condition, dubbed drapetomania. The basis problem persists today. Some years ago the American Psychoanalytic Association's public information committee wrote in its newsletter: "Indeed, there is indication of increasing derogation of analysis in the past few years." To address the problem, the Association hired a public relations consultant. To which a critic responded: "more might be accomplished if psychoanalysis were to undertake to rehabilitate its theory rather than its public image."

In the same way, our system of justice in probate court is not meant to proceed by diagnosing the opposition. We would do well to reform that system, rather than to simply continue pressing the various guilds at play into service.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

When I wrote about Wong v. Lee (D2d1 Jul. 15, 201) no. B293892 (nonpub. opn.) last month, I noted its analysis and holding of the limits of the appellate stay doctrine. But after the opinion was modified (nonsubstantively) after petitions for rehearing, I noticed the case raises several other common appellate missteps that trial attorneys may find instructive.

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.

In this divorce and proper division case, the family court issued a number of orders concerning the marital estate, including declaring rights to the family home, invalidating a loan and deed of trust on a rental property and ordering that property sold.

On appeal, the husband raised misjoinder because the owner of the rental property, a company owned by the couple, was not made a party to the proceedings. The husband's sister also had some involvement in the parties' real property, and also appealed.

The Appellant Forfeited Most of Her Claims:

On appeal, the sister argued she should have been given full title to one of the properties because the couple had "abandoned" it by failing to make mortgage payments.

The court held the sister forfeited this argument. At trial, the court concluded that the sister had not rebutted the presumption of legal title established by Evidence Code section 662. The sister did not argue her "abandonment" theory at trial. So she cannot raise it on appeal.

Attempting to salvage her argument, the sister argued she was not really raising a new legal challenge on appeal. Instead, she was just challenging the "sufficiency of the evidence" supporting the judgment. That is, the sister tried to argue this was not a new theory, but just a new gloss on the same theory argued at trial.

The Court of Appeal did not buy it. The court concluded the "abandonment" theory was "a new legal theory that we have the discretion to decline to address."

Here are some of the cited authorities on the forfeiture issue to clip-and-save:

Challenges to the Judgment May Not Be Supported by Citations to Post-Judgment Filings:

Appellants filed a post-judgment motion to vacate, and on appeal, they cited to matters in that motion. This would be fine – if they were challenging the order denying the motion to vacate. But the appellants cited to this post-judgment matter in their challenges to the underlying judgment.

This is improper. "We disregard these materials in the course of reviewing the family court's judgment because, with the exception of appellants’ notices of their intent to move to vacate the judgment, these documents were submitted to the family court after it had entered its judgment. Although we may examine these materials when reviewing an order denying a motion to vacate the judgment, we cannot consider them in assessing the correctness of the judgment itself. (See In re Marriage of Brewster & Clevengersupra, 45 Cal.App.5th at p. 498 [“When reviewing the correctness of a trial court's judgment, we only consider matters that were part of the record at the time the court entered the judgment; ‘ “[t]his rule preserves an orderly system of [litigation] by preventing litigants from circumventing the normal sequence of litigation.” [Citation.]’ [Citation.]”].)"

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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 appellant, an attorney, was hired by Amster to help her collect her anticipated inheritance from a trust. The appellant went on to serve as trustee for the trust. The appellant dipped too freely in the trust corpus for his trustee fees, for which he was surcharged.

While he was helping himself, the appellant also took trust money to pay his attorney fees owed by Amster personally. He got surcharged for that, too. All the was raised in a prior appeal and affirmed.

But wait, the attorney-appellant argued: Even if I can't make the trust pay the fees my client owes me, my client still owes the fees. So the appellant sued his client for the $62,000 she owed him. The trial court disagreed, ruling the debt was not "somehow resurrected" by the surcharge order.

Besides, the invoices showed the fees had been paid in full. That ought to be enough to withstand a substantial-evidence challenge, right?

Wrong, held the First District Court of Appeal. Whether "resurrected" was the right word for what had happened to the fee obligation after the surcharge order, the fee obligation owed by the client clearly were no longer satisfied.

But what about the invoices showing the fees had been paid in full? Meh, the court held: "[A]s we have determined, no substantial evidence supports the finding that Amster satisfied her contractual obligation to pay Mulberg for the $62,820 in attorney fees she incurred in her individual capacity."

Normally, substantial-evidence review is not as glib as this. But the court thought it was a close question whether the appropriate standard of review was substantial evidence or de novo, given the operative facts were undisputed. The court concluded the ruling could not be sustained under either standard. But the short shrift given the trial court's order is more indicative of de novo review than substantial evidence.

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.)

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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.

Watch the clip here.

Appellate attorneys Jeff Lewis and Tim Kowal's entire interview with Frank Lowrey can be found at episode 13 of the California Appellate Law Podcast here.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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.

Watch the clip here.

Appellate attorneys Jeff Lewis and Tim Kowal's entire interview with Frank Lowrey can be found at episode 13 of the California Appellate Law Podcast here.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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 appellant entered into an unorthodox contract to purchase a home, kind of a rent-to-own agreement by which she lived the house while paying $18,000 in rent, a portion of that going toward the balance of the purchase price. At the end of the six-month lease period, the appellant was to deposit the $100,000 balance of the down payment into escrow. The appellant didn't pay the $100,000 and stopped paying rent. But she did not move out.

After some litigation, the court issued a preliminary injunction ordering the appellant to open escrow, deposit the unpaid rent, and continue paying rent through the litigation. The appellant appealed this order, and filed a notice of stay, contending the preliminary injunction was mandatory in nature and thus stayed on appeal.

Appeal Dismissed Under the Disentitlement Doctrine:

The Second District Court of Appeal dismissed the appeal under the disentitlement doctrine. The court held the preliminary injunction was not mandatory in nature because it merely preserved the status quo. Thus, the appellant's willful refusal to comply with the trial court's order was not justified and warranted dismissal of the appeal.

Here is the court's helpful statement of the disentitlement doctrine:

“ ‘An appellate court has the inherent power, under the “disentitlement doctrine,” to dismiss an appeal by a party that refuses to comply with a lower court order.’ (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229 ....) “ ‘Appellate disentitlement ‘is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction ....’ [Citation.]” [Citation.] No formal judgment of contempt is required; an appellate court “may dismiss an appeal where there has been willful disobedience or obstructive tactics. [Citation.]” [Citation.]The doctrine “is based upon fundamental equity and is not to be frustrated by technicalities.’ ” (Id. at p. 1230.) [¶] The ‘disentitlement doctrine “is particularly likely to be invoked where the appeal arises out of the very order (or orders) the party has disobeyed.’ ” (Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 265 ... [(Ironridge)].) ‘[T]he merits of the appeal are irrelevant to the application of the doctrine.’ (Ibid.)” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 166.)

When Is an Injunction "Mandatory" Rather Than Merely "Prohibitory"?

The analysis is a close call on this point. The appellant was correct that filing a notice of appeal automatically stays a preliminary injunction where the injunction is mandatory in nature, requiring affirmative conduct on the part of the appellant. (Kettenhofen v. Superior Court (1961) 55 Cal.2d 189 (Kettenhofen).)

But how do you know if the automatic stay applies? The “automatic stay pending appeal turns on whether [an] injunctive order to be reviewed alters the status quo”, and status quo for these purposes is defined as ““““the last actual peaceable, uncontested status which preceded the pending controversy.”””” (Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1184.)

Here, the injunction ordered the appellant to open an escrow and deposit certain sums in it. That is not an order to stop doing something; that is an order to take affirmative actions. So it sounds like a mandatory injunction. But that is not what the Second District held: "Although, as plaintiff notes, the order required her to take an affirmative act, it did not, under the facts of this case, alter the status quo. The last ““““actual peaceable, uncontested”””” status prior to the instant controversy found plaintiff and her family in possession of the residence paying $18,000 per month, at least $12,000 of which was attributable to rent."

So while the injunction mandated certain actions by the appellant, it did not mandate anything different than what she had been doing before the dispute arose.

The Appellant Failed to Seek a Stay in the Trial Court or Supersedeas in the Court of Appeal:

As mentioned above, whether the injunction was mandatory or prohibitory seems an arguable point. That is often the case. (Kettenhofen, supra, 55 Cal.2d at p. 191 [“[W]hether a decree is one or the other may be difficult to determine in some situations ....”].

Given the legal question was a close call, the court found it significant that the appellant did not seek a stay in the trial court, and did not seek supersedeas (stay) in the Court of Appeal. While normally this is not required (an automatic stay does not require any order), it is probably a good idea in close cases. Especially here, when there was a strong inference that the appellant was taking advantage of the automatic stay to "continu[e] to reside in the residence rent-free."

Trial Court's Failure to Require a Bond Did Not Make the Injunction Void:

The appellant raised a good argument that the preliminary injunction was void because it did not require the moving party to post a bond. This requirement is imposed by statute at Code of Civil Procedure section 529. The courts have upheld it in many cases, including in the Second District Court of Appeal: Oskner v. Superior Court (1964) 229 Cal.App.2d 672, 687 [a preliminary injunction without a bond is a nullity]; Miller v. Santa Margarita Land etc. Co. (1963) 217 Cal.App.2d 764, 766 [an injunction is “of no effect” when it does not require the mandatory undertaking]; Condor Enterprises, Ltd. v. Valley View State Bank (1994) 25 Cal.App.4th 734, 741 [the failure to comply with the statutory scheme requiring a bond is a jurisdictional defect which preclude holding noncompliant party subject to injunction in contempt].

The Chanin court here did not address any of these cases holding bondless preliminary injunctions to be a "nullity" and "of no effect." The court did acknowledge such orders are in excess of the trial court's jurisdiction. But that merely means the order is voidable, not void. An act that is in excess of jurisdiction, and merely voidable, is presumed valid until it is set aside, and a party may be precluded from setting it aside by waiver, estoppel, or the passage of time. [Citation.]” (Ironridge, supra, 238 Cal.App.4th at p. 267.)

(But again, this seems to undermine prior cases: ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10: “[An] undertaking is an indispensable prerequisite to the issuance of a preliminary injunction, regardless of whether the party to be restrained has reminded the court to require the applicant to post one, the restrained party does not waive its right to that statutorily-mandated protection by failing to affirmatively request it.”)

Thus, the court held a preliminary injunction that fails to comply with CCP § 529's bond requirement must still be complied with pending appeal and until it is formally declared void. Until then, it was a presumptively valid order, and failure to comply with it triggered the disentitlement doctrine.

Appeal dismissed.

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.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.