In a first-of-its-kind case, California's Court of Appeal has authorized a "Wi-Fi Sickeness" case to proceed. Although such cases have been rejected in ADA cases in federal courts, the California court in Brown v. Los Angeles Unified School District (D2d8 Feb. 18, 2021) No. B294240 noted the broad "physical disability" protections of the California Fair Employment and Housing Act (FEHA) and California's liberal pleading standard made the difference here.

In a concurring opinion, Justice Wiley says he sees how we practitioners are using expert witnesses, and he doesn't like it. He urges the bar instead to consider using court-appointed experts.

If I may be permitted to disagree, I think this is not the right case for that. In a cause of action for accounting, by all means. But in a case involving still-emerging science, fact-finders need to be presented with what the parties think the most compelling hypotheses.

On a preliminary point concerning appellate record designation: The Court rejected the school district's challenges to the sufficiency of the appellate record. The district noted that, in plaintiff's challenge to the judgment of dismissal following the trial court's order sustaining the district's demurrer without leave to amend, the plaintiff did not include her original complaint, and the demurrer and ruling concerning that pleading.

This was of no moment because an amended pleading "supersedes the original complaint." (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1372.) "The record on appeal contains the operative FAC and LAUSD's demurrer; these are the pleadings necessary for our review."

On the other hand, if a plaintiff purports to make contradictory allegations in an amended pleading amounting to a "sham pleading," the defendant should be sure to designate those earlier pleadings in a respondent's counter-designation.

The (mis)use of expert witnesses:

Though concurring in the result, Justice Wiley anticipates this case will be decided on expert advocacy, a subject on which he has some opinions. Justice Wiley worries that experts-for-hire seeking recognition and promotion may be all too ready to peddle "junk science in the courtroom." For this proposition, Justice Wiley marshals law review articles written by law professors (presumably also seeking recognition and promotion) stating that expert opinions often are "made to correspond with the wishes or interests of the parties who call them," and that experts often become "incapable of expressing a candid opinion."

"The use of expert witnesses," Justice Wiley intones, "has run riot." Too often they are "a weapon of pure advocacy" that "can imperil the search for truth."

The better course: court-appointed experts under Evid. Code, §§ 730-732. "Preferably in consultation with counsel and avoiding ex parte contacts, the trial court can select and appoint an independent expert of unquestioned stature. The parties foot the bill. The expert can write a report, be deposed, testify, and be cross-examined, like any other expert. Crucially, the jury can learn this expert has been appointed by the court rather than hired by the parties." Although underused because parties "never suggest it," Justice Wiley notes that "the hard-working judges with experience 'reported a high degree of satisfaction with the services provided by the expert . . . .'"

Justice Wiley encourages the parties to consider this option in this case.

Curiously, however, Justice Wiley does not await the submission of independent experts on the matter before chiding plaintiff's claims. Justice Wiley "worr[ies] about giving any sort of green light to this unprecedented and unorthodox disability claim." He notes "we are the first court in the United States of America—a nation of over 300 million people—to allow a claim that "Wi-Fi can make you sick."" If this leaves any doubt whether he thinks this is a not a very good thing, Justice Wiley then juxtaposes the idea with the "fear of black cats."

But in fact, the majority opinion notes that, in this early stage of Wi-Fi technology, the science remains largely unsettled, and the long-term effects of Wi-Fi woefully understudied. The majority recounts that one environmental scientist mentioned during public comment for the district's Wi-Fi system that "she could not support URS's [the district's retained expert] conclusions about the safety of the new Wi-Fi system." The district's own medical personnel admitted they "were uncertain about any long-term effects."

We often forget how slowly science moves, and that there are few shortcuts. What many, including Justice Wiley, sometimes call "junk science" may just be part of the hypothesis and trial-and-error phases of the scientific method.

I suspect that, despite Justice Wiley's concurrence, the parties here will present the best expert hypotheses they can muster for their respective sides of this important issue of technology and public policy. 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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

An order granting terminating sanctions may seem like the end of the world. It isn't. The judgment on the order granting terminating sanctions is the end of the world. Then, and only then, may you appeal.

In the employment dispute involved in Chung & Assocs. v. Mendoza (D2d1 Feb. 18, 2021) No. B297304 (unpublished), employer plaintiff sued erstwhile employees for breach of their employment agreements, including misappropriation of proprietary information. The employee defendants cross-complained.

Following some discovery disputes not described in the opinion, plaintiff moved for terminating sanctions. The trial court granted the motion, striking defendants' answers and their cross-complaint.

Without waiting for entry of judgment, defendants moved to vacate and set aside the terminating sanctions order under Code of Civil Procedure section 473(b). The trial court denied the motion to vacate.

Defendants then moved for reconsideration. That was denied, too.

Defendants appealed.

But where, plaintiff asked on appeal, is the appealable order? The Second Appellate District agreed there wasn't one and dismissed the appeal.

A terminating sanctions order is not appealable. Instead, "the losing party must await the entry of the order of dismissal or judgment unless the terminating order is inextricably intertwined with another, appealable order." (Nickell v. Matlock (2012) 206 Cal.App.4th 934, 940.) (The 7th Division of the Second District does not like the "inextricably intertwined" exception, as we discussed here, but the 1st Division here offers no comment on it.)

Nor does an appeal lie from an order denying a motion to vacate, unless the underlying order was itself appealable. "[A]n appeal may not be taken from a nonappealable order by the device of moving to vacate the order and appealing from a ruling denying the motion." ' " (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331.)

And "[a]n order denying a motion for reconsideration is not independently appealable." (Mack v. All Counties Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 937, fn. 1.)

Don't feel too badly for appellants. As in a similar recent case discussed here, all is not lost. On remand, they need simply to file a motion under Code of Civil Procedure 664 to have the court enter the default judgment against them. They should cite Yu v. Superior Court (Oct. 27, 2020) 56 Cal.App.5th 636 (discussed here), for the proposition that "Section 664 specifies that when, such as here, "the trial has been had by the court, judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision."”

They may then appeal from the judgment.

But with a judgment against them at that point, they will need to listen to the California Appellate Law Podcast episode on obtaining a stay pending 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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Practitioners know that amendments to pleadings are liberally allowed. But every now and then, they are denied. What can you do then?

An order denying leave to amend is not directly appealable. So that's out.

You could try your case on the existing complaint and appeal if you are unsuccessful. But in that case, it would be difficult to establish any error in denying leave was prejudicial – after all, the trier of fact rejected your evidence.

There's always a writ petition. Good luck with that.

The solution: Strategic voluntary dismissal to expedite an appeal. 

In Raza v. Spain (D2d1 2019) No. B278096 (unpublished), plaintiff tried everything he could to get his claims before the trial court. Plaintiff sued for water damage to his home caused by defendant neighbor's negligent landscaping.

First, after his claim for punitive damages had been stricken as "vague and conclusory," plaintiff moved for leave to amend. The trial court denied leave to amend because plaintiff did not explain why the new allegations had not been raised originally (which is not really a valid ground). That order was not appealable.

Next, plaintiff filed a new complaint. Plaintiff moved three times to consolidate the two actions. All denied. Those orders were not appealable either.

Then the trial court granted defendant's motions in limine, excluding plaintiff's evidence. Also not appealable.

So here is what plaintiff did to get his case before the Court of Appeal. Plaintiff requested dismissal with prejudice to facilitate appeal. The trial court granted dismissal. Plaintiff appealed from that dismissal order.

And it worked.

Defendant argued a voluntary dismissal is not an appealable order. And defendant has case law to back him up. “It is well established that a voluntary dismissal under Code of Civil Procedure section 581 is not appealable. ‘The entry [of a request for dismissal] is a ministerial, not a judicial, act, and no appeal lies therefrom.’ (Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120, 108 Cal.Rptr. 782.)” (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975.)

Gutkin goes on to cite Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760–761, which states: “there is no kinship of a voluntary dismissal to a final judgment. A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review rulings on demurrers or motions made prior to the dismissal.”

But to every rule, an exception: "Ordinarily, a plaintiff's voluntary dismissal is deemed to be nonappealable on the theory that dismissal of the action is a ministerial action of the clerk, not a judicial act." (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012.) "However, appellate courts treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling." (Ibid.; see also Austin v. Valverde (2012) 211 Cal.App.4th 546, 550-551 [" '[M]any courts have allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial court, on the theory the dismissals were not really voluntary, but only done to expedite an appeal' "].)

Here, the Raza court reasoned, plaintiff exhausted all other remedies, and "made clear she [plaintiff's mother became the appellant when plaintiff passed away while the appeal was pending] was requesting dismissal in order to facilitate plaintiff's appellate rights. Thus, the dismissal was " 'not really voluntary' " (Austin v. Valverde, supra, 211 Cal.App.4th at p. 550), and plaintiff is entitled to appeal."

On the merits, the Raza court found the trial court abused its discretion in refusing leave to amend, because "[n]othing about the complaint indicated it was "incapable of amendment.""

Keep the Raza analysis and authorities handy if ever you have a trial judge preventing you from alleging key aspects of your client's case.

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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

TVA appellate attorney Tim Kowal and co-host Jeff Lewis discuss appellate bonds and stays in the latest episode of the California Appellate Law Podcast.

Appellate stays can play a significant role in changing the posture of litigation and the relative bargaining power of the parties. We discuss where to watch out for stays in anti-SLAPP cases, order involving attorney fees and costs only, injunctions, and order denying petitions to compel arbitration.

We also discuss the powerful exception to appellate stays in probate court under Probate Code § 1310(b). Appellants should be prepared to cite Gold v. Superior Court (1970) 3 Cal.3d 275, 281, which held that “the Legislature has determined that the exception should be operative only in a limited class of cases…. [T]he language of this statute strongly suggests that the exception applies only to the exceptional case involving a risk of imminent injury or loss."

Post-judgment motions also make an appearance: Motions for reconsideration, motions for new trial, and motions for JNOV. Once you file your notice of appeal and the stay under § 916 attaches, can you still proceed with motions for reconsideration, new trial, and JNOV? The answers are: No. Yes. And, Maybe.

Other topics discussed: bankruptcy stays, exhaustion of remedies, surety bonds, the little-known personal surety bond, how to require the appellant to increase a bond, discretionary stays, and writs of supersedeas.

Jeff and I also debate whether attorney fees awarded on anti-SLAPP motions are automatically stayed. Compare Quiles v. Parent (2017) 10 Cal.App.5th 130 and Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400.

Listen here:

 

Here are the cases discussed in the episode:

Episode 7 – This episode discusses stays and bonds in California appeals

Appellate Specialist Jeff Lewis' biography
Appellate Specialist Tim Kowal's biography
Sign up for Tim Kowal’s Weekly Legal Update

Cases and Laws mentioned in this episode

Buechler v. Butker

Buzgheia v. Leasco Sierra Grove

Chamberlinv. Dale’s R. Rentals, Inc. 

Changsha Metro Group Co., Ltd. v. XufengDowling v. Zimmerman

East Bay Regional Park Dist. v. Griffin

Estate of Dabney

Foggy v. Ralph F. Clark & Associates, Inc.,

Gold v. Superior Court

Grant v. Superior Court

Lang v. Petaluma Hills Farm, LLC

Morales v. Harris

Provost v. Yourmechanic, Inc.

Quiles v. Parent

Renfro v. Kai-Lieh Chen

Varian Med. Systems, Inc. v. Delfino

Weisenburg v. Molina

Young v. Tri-City Healthcare Dist.

 

And here is a transcript of the episode:

Tim Kowal: 0:02

You can either trust your own skills to diagram that sentence fragment, or you can take the Westlaw and start drilling through the notes of decisions. Announcer: 0:10

Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Jeff Lewis: 0:25

Welcome, everyone. I'm Jeff Lewis. Tim Kowal: 0:27

And I'm Tim Kowal. In each episode of The California Appellate Law Podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal. So welcome to episode seven of the podcast. Today we'll be discussing appellate bonds and stays. During appeals stays come up often in my practice, Jeff after appealability and timeliness issues, it's one of the first issues I cover with my clients stays can be absolutely crucial in some custody cases, for instance, where the California Courts might lose jurisdiction, or when they're when there are injunctions or other orders that could destroy a business or other subject matter that would render the entire appeal moot. And in the case of money judgments, obviously, the appellant is not anxious to appear at judgment debtor exams or have their property levy upon what about you, Jeff, for you, you come across a lot of bond and stay issues in your practice. Jeff Lewis: 1:34

I do outside the context of slap cases, bonds come up quite a big quite a bit. And I agree that stays are a big issue and frequently can change the calculus in deciding, you know, should we file an immediate return as opposed to a more traditional appeal, or whether to even appeal at all? If there's going to be enforcement pending the appeal and there's no effective way to stay it that could end an appeal effectively before it even starts? Tim Kowal: 1:59

Yeah, I've got a I've got a story later on that I'll share about a stay that I effected that that I think played a large role in getting a pretty darn good settlement for my client. So let's let's start by talking with some of the about some of the basics on appellate stays. So just to start with the good news for appellants who have judgments against them. The good news is that the default rule is that judgment enforcement is stayed pending appeal. And the operative statute there is Code of Civil Procedure section 916. The bad news for appellant is that the statute is an open invitation to argument in language that might have been drafted by Thomson Reuters, perfecting the appeal stays proceedings in the trial court upon the judgement "or upon the batters embraced therein in or affected thereby," so that sentence fragment gives us our mantra for determining whether there's a stay embraced therein or affected thereby and you can either trust your own skills to diagram that sentence fragment, or you can take to Westlaw and start drilling through the notes of decisions. So despite a nice statute providing for a general rule that an appeal stays judgment enforcement, and further trial court proceedings, in my practice, very few judgments are automatically stayed on appeal. Jeff Lewis: 3:15

Right. The big big exception that swallows the automatic stay rule is money judgments, a judgment for money is not automatically stayed on appeal. That's code of civil procedure section 917. point one. Instead, you have to post a bond. And there are several other exceptions. The automatic stay rule contain that code of civil procedure sections 917 point one through 917 point nine. Tim Kowal: 3:38

Right It's important to review those those statutes very carefully to determine whether your judgment that you're appealing from falls under one of them so you can determine what the right step is for whether you have an automatically stayed judgment or whether you have to take some steps steps to perfect the state. So some of the types of judgments and orders that do entitle and appellant to an automatic stay on appeal include anti slap orders, orders for costs and fees only, although that's subject to an exception for family law attorney fees Family Law Attorneys get to collect whether or not there's an appeal, the rest of us have to wait it out. injunctions are automatically stayed but only if they are mandatory in nature, a mandatory preliminary injunction is automatically stayed on appeal and orders denying petitions to compel arbitration are also automatically state Jeff Lewis: 4:26

Right and on the other hand, judgments and orders that are expressly not stayed include money judgments money judgments are not stayed without posting a bond orders to remove or remediate hazardous substances orders to assign, deliver or sell or lease or sell real or personal property receiver orders or right to attach orders, custody or visitation orders, Family Law, Attorney fee orders and orders allowing inspection of corporate books and records in orders closing a building deemed to be a nuisance are all examples of judgments and orders that are expressed not stayed, Tim Kowal: 5:01

Right and even when judgments are otherwise automatically stayed, the trial court may impose a bond requirement for other kinds of orders. The kinds of orders where the trial court may make a stay conditional include orders where the appellant was found to possess money or property belonging to the respondent orders where the appellant is required to perform some act for the respondents benefit or orders where the judgment is solely for costs under code of civil procedure section 917. point nine. Jeff Lewis: 5:30

Yeah, but touching on up on the probate realm. The general rule is that orders under the probate code are also automatically state pending appeal. That's per probate code section 1310. subdivision a. But there is an important exception, the legislature has carved out a safe harbor exception that validates certain actions of fiduciary regardless of the result of any appeal under probate code section 1310 subdivision B. Quote, for the purpose of preventing injury or loss to a person or property close quote, a trial court may direct a fiduciary to act, "as if no appeal is taken", all acts of fiduciary ticket pursuant to those directions are "valid irrespective of the result of the appeal," The effect and import of a probate code section 1310 b order was recently confirmed by the California Court of Appeal and East Bay Regional Park District vs. Griffin a 2016 case which dismissed is moot to appeal seeking to undo the acts of a fiduciary made pursuant to a probate code section 1310 b order. So if you are the prevailing party in a probate action, it may be to your advantage to get the court to issue the order pursuant to probate code section 1310 B. Tim Kowal: 6:40

Yeah, I I think the probate code section 1310 B is a is a really critical statute that practitioners should be aware of when practicing and probate if you're the appellant, you obviously want to avoid orders under Section 3010 be at all costs. And you should be prepared to point to the Supreme Court decision in gold versus Superior Court. That's a 1970 case. 3 Cal. 275. All case citations in the podcast are contained in the show notes. So in gold dealing with the statute virtually identical to 1310. b, the supreme court concluded that, quote, the legislature has determined that the exception should be operative only in a limited class of cases. And the language of the statute strongly suggests that the exception applies only to the exceptional case involving a risk of imminent injury or loss. So that's the good news in trying to avoid a ruling under 1310. b. It's not supposed to be overused. It's only for exceptional cases involving imminent injury or loss. Jeff Lewis: 7:44

Right. I wonder, by the way, if that determination 1310 (b) determination is itself subject to appeal or attack by way of read. I suppose that's a subject for a different podcast episode. Tim Kowal: 7:57

And I wouldn't put it past them. But yeah, that would be that would be dooming, because it would foreclose the ability to appeal at all. Jeff Lewis: 8:08

Alright, as a good rule of thumb concerning stays on appeal, if you're in doubt whether the order is stayed a good question to ask is this. If the judgment or order were to be enforced, would it moot the appeal, the stay rule is designed to protect the jurisdiction of the Court of Appeal. So if you appealed an injunction that required you to tear down a building or structure, for example, and you went ahead and tore it down, there would be no meaningful remedy remaining for the Court of Appeal to grant. That is why mandatory injunctions are stayed on appeal. Tim Kowal: 8:37

Alright, so now before we jump into how to affect the stay, let's consider a couple of ways how affecting the stay prematurely could wind up wrong footing your own case. So for example, if you are filing post judgment motions or planning to and appellate stay might prevent your emotion from going forward. Right. And there are three common post judgment motions and motion for reconsideration. motion for new trial and a motion for JNOV. And once you file your notice of appeal and the stay under Section 916 attaches, can you still proceed with motions for reconsideration new trial and JNOV? The answers are no, yes and maybe. Right. That's because the trial court loses jurisdiction to reconsider an order once it's been appealed. That's Young v. Tri-City Healthcare District 2012 case only one court at a time has jurisdiction over an order. Jeff Lewis: 9:32

But a new trial motion is treated a little differently from a reconsideration motion, because a new trial motion is considered collateral to the order on appeal. So you can proceed with a new trial motion even after you filed the appeal. That set forth in the Varian Medical Systems Inc versus Delfino case from 2005. And for JNOV motions, there's a split of authority. Some courts consider a JNOV motion to be like a reconsideration motion and the trial court may not grant such a motion pending appeal. This is the rule in the fourth district and other courts consider a JNOV motion to be collateral like a new trial motion, meaning the trial court may rule on and granted janno v motion even after the appeal is filed. That is the rule in the first district. Tim Kowal: 10:17

And I know that the first district case in the Foggy case Foggy v. Ralph F. Clark and Associates, I thought that the court seemed to be at a loss as to why a new trial and Jane Doe v motion should be treated differently. And I tend to agree with that analysis. I think whatever rule applies to one ought to apply to the other. Jeff Lewis: 10:39

Well, have you had a situation where you needed to appeal right away to affect the stay, but you wanted to preserve your right to proceed with the JNOV motion? Tim Kowal: 10:48

Yeah, I did have that situation. A few years ago, I had a client where a money judgment had been entered against him. And the plaintiff had been very aggressive and had begun judgment enforcement efforts already, before we had even filed the appeal. So my client obtained a bond, and wanted to get the stay imposed right away by filing the appeal. But we also wanted to bring a JNOV motion. And I was concerned about about some of these cases that suggested that a JNOV motion might be for close to me, once I filed the notice of appeal. So the solution was to file a motion in the trial court for a temporary stay under code of civil procedure section 918. I think every attorney ought to have a 918 motion template in their file ready to go. In this kind of situation. Section 918 empowers the trial court to impose a temporary stay for a limited time period, up to but not exceeding 10 days after the deadline to take an appeal and the courts power to enter a 918 temporary stay applies whether or not the appeal has actually been taken or or will be taken. So we went in an X party and got a temporary stay. The court ultimately denied RJV motion, but because I think because of the weight of some of the issues we raised, and they were obviously going to be raised in our appeal, which we had previewed in our post judgment motions, coupled with our effecting a stay and enforcing the plaintiff to realize that he'd have to wait two years to collect, we were able to get the plaintiff to settle for close to half the judgment amount. So knowing your way around these procedures can create very valuable leverage for your client. Jeff Lewis: 12:24

Yeah, and I suppose having a 918 motion template would be handy. Could you send me a copy of yours? Yeah, I'd be happy to. Alright, let's let's briefly touch on some other strategic considerations attorneys should consider before seeking a stay. Let's start with a common case of staying a money judgment while posting a bond stays judgment enforcement, it does not stop interest from accruing at a very steep rate of 10%. So before paying the premium costs of a bond and carrying 10% interest, make sure to consider the possibility of simply paying the judgment, right, Tim Kowal: 12:55

I always consider this option with my clients. And while they sometimes go that route, it's somewhat rare. Unfortunately, getting the cash together is always tends to be difficult. And there is always the hope that the appeal will ultimately make that unnecessary. But if you are going to satisfy the judgment, make sure that it can't be construed as a waiver of any appellate rights. To do that, I'd like to make sure I like to wait for some kind of evidence that judgment enforcement is imminent or already underway. And then I'll send counsel a cover letter, along with the check and satisfaction of the judgment stating that the payments being made in light of the pending judgment enforcement efforts and not as a waiver of any appellate rights. Jeff Lewis: 13:40

Yeah, good advice. Good advice. If the judgment involves the disposition of or detriment relating to the property during the appeal, if the property is damaged or loses income, your client could be liable for that, and it will come out of the bar and the court require as a condition of any stay. Tim Kowal: 13:57

Yeah. And on the other side of that coin, if you if you're the appellant and you do not get a stay pending appeal, and the respondent proceeds to misuse the property, or worse to sell or transfer it, you may face an uphill battle getting compensation for that loss if you do achieve reversal on appeal. And you have no ability to force the respondent to post a bond for that loss in advance. Jeff Lewis: 14:20

Oh, good point. All right, let's discuss some of the common types of stays bankruptcy stays very common and it's automatically imposed under 11 USC section 363 when appellant files for bankruptcy. What happens in multi defendant cases. Jeff, if you know where only one of the judgment debtors files bankruptcy? Well, the way it's supposed to work is the state only applies to the bankruptcy debtor, the debtor itself, and the appeal is to codefendants is not stayed. I've not had in my experience that rule applied correctly. Oftentimes, in my experience, trial courts or Courts of Appeal are overly eager to stay once they see the bankruptcy word, but there may be exceptions where the bankruptcy defendant is indispensable to the case, in which case, the entire case will also be stayed. Tim Kowal: 15:10

Yeah. And also note that whenever imposing a bankruptcy stay, or you're imposing any other type of stay, you as counsel have a duty to notify the court and the other parties of the stay. That's California rule of court 3.6 50. And there is a mandatory Judicial Council form to use for that purpose. Jeff Lewis: 15:30

Yep. But beware, however, a bankruptcy stay does not stay the deadline to file a notice of appeal. Tim Kowal: 15:37

That's right. So even if your client decides to effect a stay by filing bankruptcy, you still need to plan to timely file your notice of appeal, and another exception to notice that the bankruptcy state does not suspend the District Court of Appeals power to sanction debtor or counsel for abusing the appellate process. This falls under the bankruptcy codes exemption to enforce government police and regulatory power under 11 USC 362. Okay, so assuming you are appealing a money judgment and your client is not going to file bankruptcy. The simplest and most common way of staying enforcement of a judgment is by posting a surety bond. surety bonds are governed by by statute starting at go to civil procedure section 990 5.1 20. And using a bond agent is usually the the simplest way to ensure compliance with the bond statutes, the annual premiums that the surety will charge on these admitted surety bonds are usually about a quarter of a percent to a percent or sometimes more. The surety usually requires full collateralization of these bonds. But But not all the time, I've had a case where a client had sufficient net wealth and the bond was small enough so that the surety did not require posting of any collateral. Jeff Lewis: 16:51

And is there any deadline to post a surety bond? Tim Kowal: 16:55

No, there there's no statutory or other kind of deadline, the only deadline is a practical one, you have to ask yourself, How soon do you want to stop the judgment enforcement efforts against your client? What can be tricky is setting the correct amount of your bond. on its face, this seems easy, the amount is 150% of the amount of the judgment. So it's, you know, you just break out your calculator. But in many cases, a judgment is followed by a cost award, including fee awards. And although costs and fee awards standing alone do not need to be bonded. If you want to stay a money judgment on appeal, you have to also post a bond that includes the total investment Dales of our rentals. We'll put that in the show notes. Jeff Lewis: 17:38

Okay. And what about when a fee award is entered after the judgment has already been appealed and a bond posted? How can the respondent force the appellant to file and increased bond? Tim Kowal: 17:49

By enforcing the judgment this will force the appellant to file another bond or to seek other relief? A second way is for the creditor respondent to to file a motion for an order to increase the bond or undertaking and bond are undertaking in my experience are just completely synonymous. I don't believe there's any if there ever was any distinction between the two. I don't know that there's any any meaningful distinction, a distinction in 2020. The court has discretion not only to include post judgment cost orders, but the court may also include post judgment interest as well. That's something the statutes do not otherwise require. So if you are the appellant, it's a good idea to post a bond for post judgment orders voluntarily and immediately, you could get stuck with an obligation to post a bond that includes not only the post judgment fee and cost orders, but post judgment interest as well. And that's the case for that is grant versus Superior Court. And we'll post that in the show notes. Jeff Lewis: 18:48

Yeah, it is also worth noting that the order fixing the amount of the bond is itself an appealable order. I've actually dealt with that, as a respondent. Good luck with getting review of that before the issue is moot. And it's a discretionary ruling. So good luck getting that overturned on appeal. Tim Kowal: 19:04

Right. Yeah. If you think you need to raise that you better look look hard at whether you should raise it in a writ petition. There is also a little known alternative code of civil procedure section 995 point 510. Under that statute, any California resident who owns real estate in the state, and who has a net worth of twice the amount of the judgment may simply sign an affidavit agreeing to be liable for the judgment in the event it's affirmed on appeal. It's a good alternative for you as an appellant if it's available, because it eliminates the need to put up collateral with an admitted surety and you can avoid the bond premiums. On the other hand, of course, it can be difficult finding someone to sign on to a money judgment obligation. Have any of your clients ever used a personal surety bond, Jeff? Jeff Lewis: 19:50

Tim, one of the reasons I enjoy doing this podcast with you is I always learn something new and I can't say I was aware of this option. Tim Kowal: 19:57

I wasn't aware of it until a couple of years ago. Since then I've I've intrigued a lot of clients with the with the possibility, but after after pounding the pavement looking for personal surety to sign on to it that I've not found any clients who are successful in doing so, I can't find one person who can satisfy the 200% net worth requirement, you can use multiple personal charities if their combined net worth is 400% of the judgment. So under this procedure, the judgment debtor can even transfer his own property to a spouse or third party for the purpose of getting up to that 400% net worth requirement. And the question of whether that might be a fraudulent conveyance was was answered in the negative in the very interesting case of booze, booze, Gaya versus Lee ASCO, Sierra Grove, it's a 1994 decision. And it held that that such a transfer was not fraudulent because the transfer was for the benefit of the creditor because obviously it was as a means to posting a personal surety bond that would guarantee the respondents recovery of the judgment in the event of a affirmance on appeal. Interesting. Jeff Lewis: 21:09

All right. Let's shift gears and talk about discretionary states. There are some orders that can only be stayed by trial court order. These include Family Law orders involving custody and visitation, unlawful detainer orders inspection of corporate records, nuisance abatement, enclosures of places adjudged a nuisance. discretionary stays may also be ordered in appeals of orders denying disqualification of counsel, Tim Kowal: 21:34

Right and these discretionary stays may be sought by notice motion or by ex parte application. Okay. And finally, there is the most impressive sounding of all stays, and that's the writ of supersedeas. a writ of supersedeas is simply a stay that's issued by the court of appeal, we've covered a lot of stays that are imposed automatically by operation of law and an automatic stay sounds nice and in theory, but as lawyers are paid to disagree, disputes tend to arise pretty frequently about whether an automatic stay applies. So if the parties can't agree that one of these automatic stays applies, and if the trial court also does not agree that a stay applies, then your next move is a petition for writ of supersedeas in the court of appeal to to break the tie in the statute to look for that for a writ of superseding This is go to civil procedure section 923. And take a look at the state of Dabney case that confirms that in circumstances where the respondent or the trial court are not complying with what you believe to be an automatic stay, the appellant has an absolute right to seek supersedeas in the court of appeal. Jeff Lewis: 22:41

You know, I've never actually been involved directly in a case involving a supersedeas. I've only watched you do it from afar. The necessary elements for the Court of Appeal will consider supercilious are a pending appeal and exhaustion of remedies and the trial court. Tim Kowal: 22:58

And I've seen the Court of Appeal deny supersedeas for failure to exhaust remedies in the trial court, even when it was abundantly clear that the trial court was not going to grant a stay. So don't depend on arguing futility, get an order from the trial court denying a stay before seeking supersedeas in the Court of Appeal because the Court of Appeal loves to deny any kind of red and cooling supersedeas if there's still some kind of remedy that might be available to you in the trial court. Jeff Lewis: 23:26

All right. And once you are procedurally poised for supersede yes the factors the Court of Appeal considers in granting the writ r1 irreparable harm to lack of harm to the respondent in three, whether the appeal raises substantial questions, in other words, a likelihood of prevailing Tim Kowal: 23:45

And most attorneys know that that writ petitions in general carry a very low chance of prevailing, but that's usually because the threshold showing of need for immediate relief is seldom met in repetitions, but petitions for writs of supersedeas generally do meet that standard. So the relief is more likely than for ordinary writs. And so whether you're entitled or you're going to get a supersedeas granted, really will be just determine based on the legal merits of your rip. So let's move on to some recent cases. Jeff, so for our recent case, I thought we discuss the 2017 fourth district decision in Quiles v. Parent . That case deals with the situation that many attorneys will face at some point or another. And that is what do when a small money judgment is dwarfed by a very large award of fees and costs. Can you get an automatic stay of the fee and cost award? because as we've covered here already money judgments are not automatically stayed on appeal, but costs and attorney fee awards are automatically stayed. So the code of civil procedure helps us a little bit here at section 917 point one subsection D it provides that costs quote shall be included in the The amount of the judgment and quote for purposes of the bond and stay analysis, but what happens if the defendant simply pays the money judgment portion? Is the is the cost and fee award automatically stayed at that point? What happens to the you know, what happens to it? Is that bond still required to effect the stay pending the appeal? Or is the cost award, which is now standing alone without any unsatisfied money judgment to attach to automatically stayed? Jeff Lewis: 25:27

Yeah, those are the questions that the Four/Three answers in the Quiles or Quiles.... Tim Kowal: 25:33

I call it Quiles. But I'm not definitive on that Jeff Lewis: 25:37

I am glad you pronounced it. First. Here are the facts, facts of Quiles. The plaintiff prevailed in her wrongful termination action under the federal Fair Labor Standards Act. And she obtained a judgment over $200,000. And as the Fair Labor Standards Standards Act provides a right to attorneys fees, she obtained an award of fees and costs of almost $750,000. Right, so we have a $200,000 judgment, which is not a little bit but it's it's fairly dwarfed by a $750,000 fee and cost award. Right, which is not that uncommon. I've got a case right now where there's a $50,000 Award of damages and about a half million dollar award of fees and costs. And when you have that situation when it happens, the defendant may be motivated to reduce the fee award and stay enforcement in the meantime, which is exactly what the defendant did here. The defendant parent appealed the fee and costs awards only. The defendant did not appeal the underlying judgment, and instead defendant tendered payment of the entire amount of the underlying $200,000 judgment and the plaintiff files continued enforcement efforts on the fees and costs award. After the trial court denied defendants motion for a stay The Court of Appeal granted supercilious money judgment exemption, excuse me, there's an exception to the rule, imposing an automatic stay pending appeal. But a judgment for cost alone was held is not an exception to the exception. And the four three set out a bright line rule that all costs awards are subject to the automatic stay of Section 917 point one subdivision D, except for costs under Section 998 and section 1141 dot 21 which are expressly accepted in the statute. Tim Kowal: 27:26

You know, what stuck out to me about Quiles is that it It tends to disagree with a California Supreme Court holding on this on on a very similar question. The 1992 opinion in bank of bank of San Pedro versus Superior Court had set out a factor based analysis rather than a bright line rule like Wiles uses. In Bank of San Pedro, the Supreme Court said that costs are stayed only if they are, quote, routine costs, and quote unquote non routine costs, on the other hand, are to be treated as money judgments, which are not automatically stayed on appeal. And one big example of non routine costs that I'm sure you're aware of Jeff, our fee Awards on anti slap motions, basically Quiles reasons that the routine versus non routine cost analysis in the 1992 Bank of San Pedro decision was superseded by the 1993 legislative amendment to the cost statutes and files holds that that that amendment supports its bright line rule. Jeff, I think I agree with Wiles. But this would mean that fee Awards on slap motions might be automatically stayed on appeal. Now, what do you think Jeff Lewis: 28:38

I wouldn't hold your breath there? I will never see any court of appeal finding the fee awards from slap motions are automatically stayed. That would be contrary to this both the spirit and letter of the slap law, which afford litigants, you know, full complete and speedy relief. There's a great decision Dowling v. Zimmerman from 2001 that I quote to my opponents in the anti slap proceedings, when they file a notice of appeal, and I proceed to ask for payment of fees and they say stayed pending execution stayed pending appeal. I point them to the Dowling v Zimmerman case. So I don't expect any change in the law here. Tim Kowal: 29:14

Well, I think Quiles does reference Dowling. It doesn't really take up the merits of that question and leaves it to attorneys like us to and for future courts to decide how that dispute is going to come out. But yeah, it's suggested to you maybe we we take out this in a in an article somewhere and we could take opposing sides on it, because I think any court that takes us up and tries to answer that emotions are not stayed on appeal is going to have to pretty roundly disapprove with the coils analysis. So let's get to some recent the other recent cases on unrelated topics. The first that I noted was the Provost versus your mechanic case, which which I think set out a pretty important employment law holding and that is that an employee cannot be compelled to arbitrary individual claims. If the employee is also asserting paga claims, and the fourth district first division, in an opinion just last month in October, involved an employee alleging misclassification and Wage and Hour claims, both individually and as a packer representative, and the court rejected the employer's motion to compel arbitration. The the fourth Appellate District explained that the that the state is the real party in interest in all paga claims, and the state never consents to arbitration. So the threshold question of whether the plaintiff had standing as an aggrieved party, or as an aggrieved employee to bring the representative package claim may not be split and arbitrary that separately. I understand from a colleague who brings a lot of these claims that this is a major development. So employees, employee, employment attorneys should be sure to read the Provost versus your mechanic decision. Jeff Lewis: 30:58

Yeah, check that one out. I don't do that area law. That sounds interesting. Another another recent case reminds practitioners seeking sanctions in the court of appeal that they must file a separate motion in Lang v. Petaluma Hills Farm LLC, which is a November 20 2020 case, we'll put in the show notes, the trial court granted fees against the defendant for filing a frivolous slop motion. And the District Court of Appeal affirmed the trial court's award of fees and seemed poised to grant fees again for taking a frivolous appeal, but declined to do so because the sanctions request was not made in a separate motion. Another and by the way, an interesting procedural note there. If someone files a motion for fees in the court of appeal against you, did you know that under the rules, you're not allowed to file an opposition to that request for fees unless invited to do so by the court? Tim Kowal: 31:49

I am aware of that rule. I have seen attorneys flout that rule with no repercussions whatsoever. So Jeff Lewis: 31:57

Yeah, it's always an uncomfortable position to be in of either allowing an accusation of sanctionable conduct to stand on challenge or to violate the rules to meet that challenge. It's it's very frustrating, right. Another recent case also involves sanctions for frivolous anti slap. This was the Changsha Metro Group Company vs. Xufeng case that will put that in the show notes. And that case held that you can seek sanctions for frivolous anti slap motion. And even though that code of civil procedure section 120 8.5. It sets forth a 21 day safe harbor provision. This court had trouble reconciling, seeking sanctions for frivolous anti slap motion, and the Safe Harbor provision of CCP 120.5. So the upshot was that you can seek sanctions when opposing an anti slap motion on the grounds that it's frivolous, and you do not have to comply with the 21 day safe harbor provision notice. Tim Kowal: 32:56

Yeah, I found this I found that case surprising because I know the courts have wrestled quite a bit about the interplay between 128.5 and 128.7, whether the Safe Harbor requirement applies and the legislature's gone back and forth a little bit, but I thought it was fairly well settled that you had to comply with the Safe Harbor come hell or high water, but we found an exception. Another case, another case out of the fourth district Third Division in Buechler vs Butker provides a good reminder that fees for judgment enforcement are available even for attorney efforts that were not successful. So remember that when you're trying to when you're filing your motion to recover judgment enforcement fees, you don't have to limit yourself to for fees for actions that third Court of Appeal issued another unpublished decision in mirallas vs. Harris, that was interesting. It reminded the case caught my eye because the appellant narrowly avoided having her appeal dismissed because she had checked the wrong box on her Judicial Council notice of appeal form. I recall in that in that episode of the podcast, you would mention that you don't use the Judicial Council form. And after reading this nailbiter case, I decided that there's no utility for me and continuing to use it either. The checkboxes on those forms are just completely unnecessary that the rules of court and the CCP don't require don't require that to be in the notice of appeal. But the courts do pay them a lot of attention and they they can wind up dismissing your appeal. If they don't like what box you check. Yeah, let me just put an asterisk on that practice tip. I usually do not use the Judicial Council form notice of appeal for complicated appeals with a complicated set of facts, but for something involving maybe a slap motion order, I will use it. According to a survey conducted by the clerk of the Ninth Circuit, an overwhelming 86% of lawyers who have given oral arguments remotely thought that the level of engagement with the judges was the same or better than in person proceedings. The lower percentage that is still a majority rated experience to be overall positive with 62 percent rating the experience similar to or even better than in person proceedings, the remaining 38% rated it worse. Nonetheless, most attorneys were reluctant to support future remote arguments, unless in the case of a pandemic, or where opposing counsel was also appearing remotely. Only 13% would appear remotely again, without those conditions, and we'll put a link to the show notes. link to the survey in our show notes. Yeah, I thought that survey was interesting, because it's suggested people attorneys were had very positive experiences of the remote oral argument process, yet they still seem to be holding their breath for the time for for normalcy to return and, and to return to in person. oral arguments. Jeff Lewis: 35:43

Yeah, yeah. You know, I just concluded a two week trial via zoom. And if I had to do it over again, I think I would do it by zoom again, unless I knew that everybody else was going to show up in person. So I guess I'm in agreement with a minority of people who responded to the survey. Tim Kowal: 36:01

Yeah, well, that wraps up this episode. If you have suggestions for future episodes, please email us at cow podcast@gmail.com which is CALPodcast@gmail.com. In our upcoming episodes, look for more tips on appellate practice. Announcer: 36:34

You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at calpodcast.com. That's calpodcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again

 

This unpublished decision reviews a trial court's reliance on improper evidence. The case, In re Marriage of Patterson (D5 Feb. 9, 2021) No. F076753, is a good illustration of a key points of trial practice: The trial court may not rely on evidence that was not properly admitting into the record. And judicial notice will not get you there on matters of "substantial consequence" without following the statutory procedures.

The case is also a good illustration of a key point of appellate practice: Even if the trial court relies on improper evidence, that error is not reversible unless the evidence prejudiced the appellant. If there was other substantial evidence supporting the findings, as there was here, the error will be deemed harmless.

In Patterson, wife cuckolded husband and bore two children by another man during their marriage. Through foreclosure, they lost the family home that husband owned separately, but some friends later acquired the deed and transferred it to wife.

After the couple separated, husband agreed to pay wife $60,000 in child support in exchange for visitation. Wife's lawyer, however, did not include the visitation terms in the agreement. Wife later chided husband she had "tricked" him out of his visitation rights. Wife then alleged there were no children of the marriage.

Wife allowed at one point that husband should have the house, but later reneged on that too.

The trial court found wife's actions "particularly calculated and vicious." The court concluded wife breached her fiduciary duties, and she was judicially estopped from claiming the house was community property after having proposed husband receive it in the property division. The court awarded $75,000 in sanctions against wife.

Wife appealed. Among the issues raised, wife argued the trial court erred by relying on no fewer than 26 items that were never admitted into evidence and thus not properly before the court. "We agree," said the Fifth District. The items included a declaration, filings from prior court proceedings, a visitation agreement, a deed of trust, assignments, a notice of trustee's sale, a bill of sale, letters, a valuation opinion, and income and expense declarations.

"However," it went on, letting the air out of wife's balloon, "a judgment may not be reversed unless an error was prejudicial and a different result was likely in absence of the error." (Citing Code Civ. Proc., § 475In re Marriage of Shimkus (2016)244 Cal.App.4th 1262, 1269.) Notably, wife "does not explain how the individual items were material or dispositive to the court's ruling."

Thus, none of these 26 judicial errors were prejudicial, and thus not reversible. Nor were the errors cumulatively prejudicial, as the findings were independently supported by substantial evidence, by way of testimony and a grant deed properly admitted.

But wife did prevail on appeal concerning a 27th piece of improperly considered evidence supporting the $75,000 sanctions order against her, as that amount was based entirely on an income and expense declaration that was not admitted into evidence. A declaration is not automatically received into evidence merely because it has been filed with the court. (In re Marriage of Shimkus, supra244 Cal.App.4th at p. 1271.) "[A]s with any evidence, a declaration must be marked and offered and is subject to objections before admission." (Ibid.)

The Fifth District suggested the trial court might have taken judicial notice of this evidence, but did not follow the correct procedure to do so. "[I]f the matters of which it takes judicial notice are "of substantial consequence to the determination of the action," the court must follow a specific procedure. (Evid. Code, § 455.) "If the trial court ... has taken ... judicial notice of such matter, the court shall afford each party reasonable opportunity ... before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed." (Id., subd. (a).) That did not occur here. ... As a result, Kellee was not afforded a full and proper opportunity to "meet" this evidence."

But wife's victory likely may prove hollow, as the court remanded with directions for the trial court to conduct a new hearing on sanctions, and properly admit the evidence this time.

The Fifth District also held that wife had a point on the issue of judicial estoppel. The trial court erred in finding her pleading references concerning the property to amount to judicial estoppel. No surprise here, as judicial estoppel is a narrow doctrine. " ' "Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] Application of the doctrine is discretionary." ' [Citation.] The doctrine applies when '(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.' [Citation.]' " (In re Marriage of Taschen (2005)134 Cal.App.4th 681, 689-690.)

But again, the finding was supported on independent substantial evidence.

The upshot for appellants: Improperly admitted evidence by itself usually is not a strong grounds to appeal, as you will still be faced with a deferential substantial-evidence review concerning any proper evidence that supports the judgment.

The upshot for respondents: Do not rely on declarations to prove your case. Instead, be sure to have your client or witness testify to them so the matters become part of the evidentiary record.

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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Here is a common question:

A judgment is entered. Later, a separate award of attorney fees and costs is entered. Still later, an amended judgment incorporating the fee and cost award is entered.

To seek reversal of the fee and cost award, which order, or orders, must be appealed?

Answer: All three.

"'When a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudgment order.'" (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222 (Torres).)

(If you really only want to appeal the fee and cost award, you should be fine with just appealing that order: the underlying judgment and later amended judgment ordinarily are not necessary. But you cannot get in trouble by being extra cautious.)

The California Attorneys Fees blog reports this unpublished decision out of the Fourth District, Division Three, Tiger Loans, Inc. v. Yan Hao (D4d3 Feb. 9, 2021) No. G058954, dismissing an appeal as untimely.

On June 3, the court entered judgment against plaintiff, but did not resolve the issue of fees and costs. On September 3 defendant obtained an award of fees and costs. After a dispute over a judgment-enforcement matter, on February 26 the court entered an amended judgment including the fee and cost award. On March 5 plaintiff appealed the amended judgment. (There was no notice of entry, so the 180-day deadline applied under California Rules of Court, rule 8.104(a)(1)(C).)

"March 5, 2020 is 266 days after June 13, 2019 and 184 days after September 3, 2019. Plaintiff's appeal is thus untimely as to both the judgment and the attorney fee and cost order. The February 26, 2020 amended judgment merely added costs and attorney fees to the original judgment, and therefore did not extend the time to appeal from the original judgment. Consequently, we are without jurisdiction to entertain plaintiff's appeal and must dismiss it."

Remember: An award of fees and costs is separately appealable under Code of Civil Procedure section 904.1(a)(2). An appeal of the underlying judgment ordinarily will not encompass a later award of fees and costs. Nor will an appeal of a later, amended judgment revive the time to file a prior fee and cost order: "It is well settled . . . that '[w]here the judgment is modified merely to add costs, attorney fees and interest, the original judgment is not substantially changed and the time to appeal it is therefore not affected.'" (Torres, supra, 154 Cal.App.4th at p. 222.)

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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Most attorneys have missed a deadline at some point in their careers, or have awoken in the night worrying about it. The attorney in this recent case, Ojeda v. Azulay (D2d3 Feb. 10, 2021) No. B302440 (unpublished), missed a deadline to file a fee motion. But he owned up to the mistake, acknowledging it in his reply brief, explaining he had miscalculated the deadline under Code of Civil Procedure section 1013. The trial court granted his motion despite its untimeliness.

The Second District affirmed. Although the motion was untimely, the deadline to file a fee motion is not jurisdictional. That deadline may be extended by stipulation or by the trial judge for good cause under California Rules of Court, rule 3.1702(b)(2). "An honest mistake of law may constitute good cause for relief depending on the reasonableness of the misconception. (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 327-328.) We review a trial court's finding of good cause for an abuse of discretion, and a litigant challenging that finding has an "uphill battle." (Id. at p. 326.)"

But, appellant urged, the trial court made no finding of good cause! Without a finding of good cause, and without a stipulation, there can be no extension under the rule!

Appellants often make technical arguments like this on appeal. But appellants often fail to meet their own technical requirements on appeal to establish them. Here, appellant did not appear at the hearing and did not otherwise argue against the moving party's showing of good faith mistake. Appellant also failed to provide a record of what happened at the hearing.

"Given the standard of review—abuse of discretion—that failure is fatal to this issue." The appellant "bears the burden of affirmatively showing prejudicial error, and, to satisfy this burden, had to provide an adequate record to assess error. (See, e.g., Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)"

What appellant should have done: Appellant needed to make a record to establish any extension was not supported by good cause. Appellant might have done this by requesting leave to file a sur-reply to address the moving party's proffer of good cause, made for the first time in its reply brief. Appellant ought to have pointed out to the trial court that a mistake of law ordinarily is not excusable unless it is a complex and debatable point, and here, the interpretation of section 1013 ordinarily is not. And of course, appellant needed to have attended oral argument with a court reporter, so that the trial court's reasoning and findings on the point, if any, would be made part of the record.

Failing any of that, the Court of Appeal will nearly always hold an implied finding was made, and that it was supported by those portions of the record appellant failed to furnish on 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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

This appeal over attorney fees concerns thorny issues of appealability. In Doe v. Westmont Coll. (D2d6 Jan. 25, 2021) No. B303208, the Second District rejected the college's arguments that the fee order was not appealable. Even though the fee motion had been made and denied previously, the court noted the second fee motion raised new issues, including seeking fees for a subsequent successful appeal. This opinion seems to differ slightly from a Fourth District opinion in Apex LLC v. Korusfood.com (D4d3 2013) 222 Cal.App.4th 1010 (see here).

Here is what happened in Westmont College. 

In a prior opinion, a Westmont College student who was suspended due to sexual harassment charges filed a successful petition for writ of mandate in the trial court reversing the suspension, on grounds he was denied a fair hearing. After the college unsuccessfully appealed, it decided simply to vacate the findings against the student rather than conduct the required hearing. The successful student then moved for his attorney fees.

The trial court denied the student's fee request, finding fees not supported under Code of Civil Procedure section 1021.5 because the student's case was "personal." To the extent his efforts conferred a significant benefit on a large group of people, that was only because the college had appealed and lost. Thus, awarding fees would amount to a punishment for exercising the right to appeal.

The Second District reversed, holding the trial court had failed to engage in required portions of the analysis under section 1021.5. Failing to exercise discretion is an abuse of discretion.

Section 1021.5 provides fees to a successful party whose action "resulted in the enforcement of an important right affecting the public interest." The statutory inquiry requires the court to find that "(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any." (§ 1021.5.)

Specifically on the question of "necessity and financial burden of private enforcement," a trial court is required to examine two prongs: the adequacy of public enforcement, and the financial burden of private enforcement.

Here, "[t]he trial court examined neither of these prongs when it denied John's motion. . . . That alone was an abuse of discretion." (Citing Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382, 391.)

The court also addressed some thorny issues of appellate procedure, including an issue on which there currently is a split of authority.

First, the college argued that while a post-judgment fee order is appealable, a post-appeal fee order is not. Here, the student's fee motion was based on having prevailed in a prior appeal. An order denying a fee motion ordinarily is appealable as an order after an appealable judgment (Code Civ. Proc., § 904.1(a)(2).) But here, the college apparently argued that the fee award followed not the student's judgment but his favorable appellate opinion.

A similar issue came up in Apex LLC v. Korusfood.com (D4d3 2013) 222 Cal.App.4th 1010, which I wrote about here. In that case, the successful appellant recovered fees after reversing a judgment on appeal. The Fourth District could find "no published decision addressing whether a trial court order granting attorney fees on appeal, made on remand after reversal of the underlying judgment, is directly appealable." So the court there reviewed the order as a collateral order.

The Westmont College court, however, was not vexed by the appealability issue. It cited (Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1029 for the proposition that a fee award under section 1021.5 may be based on a published appellate decision. But that seems to sidestep the appealability question under section 904.1(a)(2). Serrano held that a published opinion is a factor supporting an award of section 1021.5 fees. But it does not appear directly probative of the appealability question.

The college also argued that the student's fee order was based on a renewed motion for fees, made before the first appeal. Orders on renewed motions, the college argued, are not appealable. And the college has cases to back it up. (See, e.g., Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 364; Chango Coffee, Inc. v. Applied Underwriters, Inc. (2017) 11 Cal.App.5th 1247, 1252-1254; Tate v. Wilburn (2010) 184 Cal.App.4th 150, 159-160 (Tate).)

The court agreed that renewed motions "generally not appealable because permitting such appeals might: (1) render "a nonappealable order or judgment . . . appealable," (2) permit a party to "have two appeals from the same decision," or (3) give a party "an unwarranted extension of time to appeal." (Tate, supra, 184 Cal.App.4th at p. 160.)

The court rejected the college's argument, however, because the student here did not make a "renewed" motion. A renewed motion is "a subsequent application for the same order." (Code Civ. Proc., § 1008(b).) The relief sought must be "identical." Here, the student's second fee motion, unlike his first motion, included fees for his successful appeal. The second motion was based on obtained a published decision, unlike his first motion (this is how the fact of the published opinion becomes relevant to the appealability issue). "The postappeal motion thus cannot be construed as a renewal of his preappeal motion."

Moreover, the fee order was a postjudgment order for fees, and such orders "are themselves appealable" under section 904.1(a)(2).

Held: The order on a motion for attorney fees under section 1021.5 following a published appellate court opinion is an appealable order.

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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

"Shotgun pleading," the practice of overpleading a complaint with vague and irrelevant facts, and so annoying a lot of people who never did the plaintiff any harm, is prohibited in federal court, where a "short and plain statement" is required. Often, the rule is relaxed in practice, due to the difficulty of enforcing it.

Too often, says the 11th Circuit. In Barmapov v. Amuial, No. 19-12256 (11th Cir. Feb. 3, 2021), the court affirmed the dismissal with prejudice of a shotgun pleading, even though it probably contained some meritorious claims. What put the court over the edge was that plaintiff was represented by counsel, and the district court gave counsel an opportunity to clean up the "meandering" complaint some 100 pages long, which "lumped together" allegations against more than a dozen defendants, including immaterial allegations about criminal backgrounds and pointless personal history, and "vague and conclusory" allegations, 50 pages of which were "indiscriminately incorporate[d] and repeat[ed]" into nine of the 19 counts.

Yet plaintiff's counsel squandered the opportunity. As the 11th Circuit ominously observed, "the number of legal malpractice claims has recently 'soared,' and the number of large payouts has increased."

"Shotgun pleadings" are prohibited by Federal Rules of Civil Procedure 8(a)(2), which requires "a short and plain statement of the claim," and Rule 10(b), which requires numbered paragraphs in a complaint, each to be "limited as far as practicable to a single set of circumstances."

Chief Judge Pryor, writing for the panel, wrote that precedent in the 11th Circuit is clear: "When a litigant files a shotgun pleading, is represented by counsel, and fails to request leave to amend, a district court must sua sponte give him one chance to replead before dismissing his case with prejudice on non-merits shotgun pleading grounds." Vibe Micro, Inc. v. Shabanets878 F.3d 1291, 1296 (11th Cir. 2018). The district court having given counsel that chance, and counsel having squandered it, the panel found little difficulty in affirming the dismissal.

Judge Tjoflat wrote separately to impress upon the bar that "short and plain statement" means "short and plain statement." Too many plaintiff's lawyers, noted Judge Tjoflat, are "too clever for their own good." "Shotgun pleadings" are "calculated to confuse the 'enemy,' and the court, so that theories for relief not provided by law and which can prejudice an opponent's case, especially before the jury, can be masked." Weiland v. Palm Beach Cnty. Sheriff's Office792 F.3d 1313, 1320 (11th Cir. 2015) (alterations adopted) (quoting T.D.S. Inc. v. Shelby Mut. Ins. Co.760 F.2d 1520, 1544 n.14 (11th Cir. 1985) (Tjoflat, J., dissenting)).

"To an outside observer, disposing of these otherwise viable claims because a plaintiff's lawyer pled too many facts may seem like strong medicine.... And it is strong medicine, but for good reason." "It is not the proper function of courts in this Circuit to parse out [] incomprehensible allegations."

Shotgun pleading may even expose the pleader to contempt: "the deliberate use of a shotgun pleading to impede the orderly process of a case is an "abusive litigation tactic[]" that could warrant a citation for criminal contempt."

Judge Tjoflat laid some of the blame at the feet of district judges: "district courts must also shoulder some responsibility in ensuring that shotgun pleadings are nipped in the bud." That is because "when shotgun complaints are allowed to survive past the pleadings stage, "all is lost—extended and largely aimless discovery will commence, and the trial court will soon be drowned in an uncharted sea of depositions, interrogatories, and affidavits."

When faced with a shotgun complaint, defendants have two options: move for a more definite statement under FRCP 12(e), or move to dismiss under FRCP 12(b)(6). But defense counsel "should never respond to a shotgun pleading in kind," that is, by filing a "shotgun answer," with one-line affirmative defenses.

With all that said, Judge Tjoflat went on to state plaintiff here "may have pled some claims that could have survived" the motion to dismiss, and that it does appear [plaintiff] was swindled" by the defendants into "invest[ing] millions of dollars in a scam."

Yet despite that it contains some valid claims, the shotgun complaint "must be dismissed," because plaintiff's "counsel failed to uphold their end of the bargain" by rectifying the problems the district identified in the earlier complaint.

"I have little sympathy," Judge Tjoflat concluded, "for lawyers who draft slapdash complaints that are ultimately dismissed."

Look for this "strong medicine" to be adopted in more federal courts in response to shotgun pleading.

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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

During appellate briefing in Howard Jarvis Taxpayers Ass'n v. City of San Francisco (D1d5 Jan. 27, 2021) No. A157983, a case concerning whether a recent local tax increase on a voter initiative needed a two-thirds majority vote rather than a bare majority, another case on the same question was answered in a different case (that case is City and County of San Francisco v. All Persons Interested in the Matter of Proposition C (2020) 51 Cal.App.5th 703). The other case was unfavorable to appellants. The other case, though of parallel jurisdiction and thus not binding, nonetheless was decisive on the issues.

Appellants' counsel did not mention the unfavorable new case in their briefing. In fairness to appellants, the unfavorable new case only came out two months before their reply brief was filed. Sometimes very recent authorities escape counsel's attention. Unfortunately, appellants were also the same losing parties in the unfavorable new case (albeit represented by different counsel).

And removing all doubt, appellants' counsel admitted at oral argument she was aware of the unfavorable new case in time to brief it, but had chosen not to brief it because, she explained, that other case was "different."

The First District obviously did not agree. It exhaustively analyzed the unfavorable new case, found it persuasive, and adopted its reasoning.

"We admonish counsel," the court stated in its published opinion, "to candidly acknowledge such authority in the future." The court cited Jon B. Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 9:58 ["Your failure to confront unfavorable relevant holdings will be regarded as an attempt to deceive and mislead the court."]; Rules Prof. Conduct, rule 3.3(a)(2) ["A lawyer shall not: [¶] . . . [¶] (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel," fns. omitted].

Before issuing its opinion, the court did invite further briefing from the parties on the new case. So counsel's misstep here did not effect any probable change in the court's opinion on the merits. But it likely effected a change in the court's opinion on her credibility.

h/t Ben Shatz.

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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Beware when filing new trial motions: if you are relying on it to extend your time to appeal, be mindful that it is heard within the statutory 75-day period.

In Choochagi v. Barracuda Networks, Inc. (D6 Dec. 30, 2020) No. H045194, a jury returned a defense verdict for employer on employee's disability discrimination and wrongful termination claims. Employee then filed a timely notice of intent to move for new trial. But the trial court did not hear the motion until more than 60 days after the notice of entry of judgment. (The 60-day deadline under Code Civ. Proc., § 660 was extended to 75 days effective January 1, 2019.) Thus, the trial court deemed it denied by operation of law.

Held: The trial court was correct. New trial motions not heard or decided at the expiration of the statutory period are deemed denied by operation of law.

The deadline to decide new trial motions is jurisdictional and is not excused by inadvertence either by the moving party or the court. " 'It is the duty of the party to be present and see that his motion for new trial is set for hearing within the statutory time. If it has been inadvertently continued by the court to a date too late under the statute the party should move the court to advance the matter on the calendar. When he is guilty of lack of diligence in the prosecution and presentation of his motion, he cannot complain of the court's inadvertence.' " (In re Shepard's Estate (1963) 221 Cal.App.2d 70, 74.)

Besides, plaintiff here was aware of the hearing date, having given notice of it two days after filing his motion. While Code of Civil Procedure section 661 requires that the clerk "shall call the motion to the attention of the judge," and that the motion "shall be argued ... not later than ten (10) days before the expiration of" the statutory period, the buck stops with the appellant. Appellant ought to have alerted the court to the problem.

Somewhat incongruous with its holding to this strict rule, the Sixth District went on to reach the merits anyway, noting plaintiff had "timely appealed from the order granting summary adjudication and the order denying his motion for new trial." But orders granting summary adjudication are not appealable. Nor are orders denying motions for new trial.

Parties exploring appeals also ask this question a lot: The trial judge was biased against me. Can we overturn the judgment because of it? Answer: Almost always no. Here is how the Sixth District addressed it.

Appellant argued that the trial judge's comments made in sustaining objections at trial betrayed a "lack of belief" in his attempt to prove employer "failed to follow its own written policy of progressive discipline." Appellant argued these comments amounted to judicial bias. The court rejected this, noting: "It is 'extraordinary' for an appellate court to find judicial bias amounting to a due process violation," that judicial bias will be found only where "the judge's behavior was so prejudicial it denied the party a fair, as opposed to a perfect, trial," and that "Mere expressions of opinion, based on observation of the witnesses and evidence, do not demonstrate judicial bias," quoting Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 589.

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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

I have written before about California state court cases holding that failing to exercise discretion is an abuse of discretion. The same rule applies in federal courts, as the recent case of Rembert v. A Plus Home Health Care Agency, LLC (6th Cir. Jan. 25, 2021) No. 20-3454 out of the Sixth Circuit illustrates in the context of attorney fee awards.

In Rembert, a home healthcare agency declined to pay nurses for the overtime they worked because it “couldn’t make money” if it did. The nurses sued and won via settlement. The district court ordered attorney fees, but then reduced them to 35% of the total settlement amount because that’s what judges in that district “typically approve.”

Reversing, the Sixth Circuit acknowledged the district court "has some discretion regarding the rates and hours that are reasonable." But that discretion may be invoked "only when the court provides a clear and concise explanation of its reasons for the fee award," quoting Gonter v. Hunt Valve Co., 510 F.3d 610, 616 (6th Cir. 2007).

The Court reversed on two grounds.

First, in the context of Fair Labor Standards Act (FLSA) claims, where recovery typically is modest, if plaintiffs' fee awards were capped at a percentage of recovery, they "would be unable to 'attract competent counsel' to represent them." So caps based on percentage of recovery are invalid in the FLSA context.

Second, appellant argued the district court "failed adequately to explain the reasons for reducing her counsel’s compensable hours by nearly two-thirds." The Court agreed. “The district court should state with some particularity which of the claimed hours the court is rejecting, which it is accepting, and why.” U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1193 (6th Cir. 1997) (brackets and internal quotation marks omitted). The Court noted: "We lack any such particularity here."

Reviewing the fees in the first instance, the Court noted: "In determining fee awards, courts should not “‘become green-eyeshade accountants[,]’” but instead must content themselves with “‘rough justice[.]’” " (Quoting Carter v. Hickory Healthcare, Inc., 905 F.3d 963, 970 (6th Cir. 2018) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)).) "And though we are mindful of our limited role in adjudicating fee disputes, we see nothing more than de minimis entries (if any) for non-compensable time." "[W]e respectfully conclude that the district court abused its discretion when it did not grant in full the amounts requested in counsel’s fee petition."

Remanded for a further award of appellant's fees on appeal. Reiterating the modest amount of fees at issue, the Court urges the parties not to appeal again.

Usage Note: The court's locution, "failed adequately to explain," hints that the Sixth Circuit expects you keep your infinitives unsplit.

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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.