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

Sharma lost her auto-defect case after a jury trial. Instead of immediately appealing, Sharma timely file a notice of intent to move for new trial.

For some reason, Sharma did not file the memorandum and supporting papers. And Sharma did not show up at the hearing. But instead of denying the motion, the trial court took the motion off calendar, and the defendant served notice that the motion was off calendar.

Shama filed her notice of appeal. She filed it more than 60 days after the notice of entry of the judgment. But she filed it within 30 days after the motion for new trial would have been deemed denied, i.e., 75 days after the notice of entry. (Code Civ. Proc., § 663a(b).)

So whether her appeal was timely depended on whether her motion for new trial was valid, and when it was denied.

Only a “valid” new trial motion extends the time to appeal, so is a new trial motion without a memorandum “valid”?

When the appellant files a “valid” motion for new trial, rule 8.108(b) provides for an extension of the time to appeal. Rule 8.108(b) states:

“If any party serves and files a valid notice of intention to move for a new trial, the following extensions of time apply: ”(1) If the motion for a new trial is denied, the time to appeal from the judgment is extended for all parties until the earliest of: ”(A) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; ”(B) 30 days after denial of the motion by operation of law; or ”(C) 180 days after entry of judgment.”

Here, Sharma never filed the actual motion and did not appear at the hearing. The Court of Appeal opined that “In our view, her failure to pursue the motion reasonably supports a conclusion that her notice of intention to move for new trial was not valid.”

But the court stopped short of holding as much. Instead, the court went on to conclude that, even if the new trial motion was valid, the appeal was still untimely.

Comment: The motion seems valid to me, despite the missing supporting papers and the nonappearance at oral argument. Rule 8.108 is triggered when a party “serves and files a valid notice of intention to move for a new trial….” A memorandum or appearance at the hearing are not mentioned in the rule. Under Code of Civil Procedure section 659, a memorandum and supporting papers do not have to be filed until 10 days after the notice of intent. Thus, in this commentator’s view, when Shama filed and served the notice of intent, it was valid. That cannot be undone by anything Shama later did, or failed to do.

An extension under rule 8.108 may be forfeited if not timely briefed (but this seems a dubious holding).

Unfortunately for Shama, she did not argue in her brief that rule 8.108 applied to extend her time to appeal. Instead, she waited until oral argument. There, she argued that the trial court’s order taking the motion for new trial off calendar was not a denial of the motion. Thus, the 180-day provision applied under rule 8.108(b)(1)(C).

This seemed a decent argument. But the court held that “Sharma forfeited this argument by failing to raise it in her briefs.”

[Comment: This is not right. The deadline to appeal is jurisdiction, and jurisdiction arguments are never waived and may be raised at any time. (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 721; Keiffer v. Bechtel Corp. (1998) 65 Cal.App.4th 893, 896 ["adequacy of the court's subject matter jurisdiction must be addressed whenever that issue comes to the court's attention"].)]

The court went on to state that Sharma’s argument failed on its merits, because the trial court’s order taking the motion for new trial off calendar was, in effect, an order denying the motion:

“The “formal disposition” of the order is irrelevant, and Sharma's focus on the absence of the word “denied” in the judge's order is misplaced. (Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019, 1024, fn. 4.) Where, as here, the “legal effect” of an order taking a motion off calendar is to deny the motion—as opposed to postpone its resolution for a later hearing—we treat it as just that, a denial. (Ibid.) Given Sharma's failure to pursue the new trial motion, the judge's decision to take it off calendar “in legal effect ... constituted a denial of the motion.” (Ibid.; accord, American Advertising & Sales Co. v. Mid-Western Transport (1984) 152 Cal.App.3d 875, 877, fn. 1.)”

Thus, the 30-day period under rule 8.108(b)(1)(A) began running as soon as the defendant served that order on the same day, and the appeal filed more than 30 days later was untimely.

Comment: I don’t think this is sound reasoning. An order taking a motion off calendar may eventually prove to be, “in effect,” a denial, as happened here. But not necessarily. It is just as likely, for instance, that Sharma might have appeared ex parte to explain why she failed to appear, and to reset the hearing on the motion. And the trial court certainly was empowered to grant that request. (Had the trial court actually denied the motion for new trial, the trial court’s power over that collateral proceeding would have been at an end. People v. Wisely (1990) 224 Cal.App.3d 939, 948 ("'[O]nce a trial court has decided a new trial motion, it may not reconsider its ruling or entertain subsequent requests for new trial,' … 'otherwise, proceedings on new trial motions might `become interminable.'"].)

At any rate, courts and litigants are not meant to speculate about such possibilities. That is why the Legislature provided at section 663a that “the power of the court to rule on a motion for a new trial shall expire 75 days after” the notice of entry or the filing of the notice of intent. Until that statutory period actually expires, or the trial court actually denies the motion, the motion is not actually denied.

In this commentator’s view, the appeal was timely. Still, it is hard to feel sympathy for this appellant, who failed to file papers supporting the new trial motion, failed to appear at the hearing, and apparently took no action to explain or remedy these omissions.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

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

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

The plaintiffs in Arega lost their workplace discrimination case on summary judgment. A little over 60 days later, the plaintiffs brought a motion to vacate. The motion was brought under Code of Civil Procedure section 473(b) based on plaintiffs’ counsel inadvertence in failing to contest the tentative ruling and request oral argument. Counsel declared he had been suffering “flu-like” symptoms that day. The trial court ruled this was too little, too late, and denied the motion as untimely.

Only a “valid” posttrial motion extends the deadline to appeal.

The district moved to dismiss the appeal. By the time the appeal was filed, it was more than 60 days after the notice of entry of judgment had been served. The plaintiffs argued their time to appeal was extended because of their motion to vacate. But the district argued that the extension of time, under California Rules of Court, rule 8.108, only applies where a “valid” motion is filed. Here, the trial court ruled the motion to vacate was untimely. Thus, the district argued, it was invalid, and could not extend the deadline to appeal.

The district had authority to support its position. Rule 8.108 provides that the time to appeal may be extended when a party files a “valid” motion to vacate. And a “valid” motion means two things: (1) it must be based on a recognized ground; and (2) it must be timely.

A “valid” motion to vacate, for purposes of extending the time for filing a notice of appeal, means “a motion based on some recognized grounds for vacation; it cannot be stretched to include any motion, regardless of the basis for it.” (Lamb v. Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1010.)

Here, the motion to vacate was “valid” because it was based on a recognized ground and filed within the statute’s outer deadline.

Here, the First District Court of Appeal concluded that the plaintiffs’ motion to set aside the judgment, although unsuccessful, was a “valid” motion to vacate judgment under rule 8.108(c). “There is no dispute that Plaintiffs’ motion was based on a recognized ground for vacation as it was based on “[i]nadvertence, surprise, mistake, or excusable neglect” pursuant to section 473(b).”

The closer call was whether the motion was timely. The difficulty here was that the statute has two clauses governing the time of filing. Section 473(b) states that a motion to vacate a judgment or an order “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)

Here, the plaintiffs filed the motion to vacate a little more than two months after the summary judgment. This was within the six-month outer limit. But, according to the trial court, it was not a “reasonable time,” so the motion was untimely.

So does this mean the motion was “invalid” under California Rules of Court, rule 8.108?

No, the motion was still valid to extend the time to appeal, the Court of Appeal held. The problem here is that the motion deadline here is discretionary, and yet this discretionary deadline to file the motion affects the jurisdictional deadline to file the appeal. So the court held that the shorter, discretionary deadline does not impact that jurisdictional analysis. “Given that what constitutes a reasonable time requires a case-by-case determination and depends on the discretion of the trial court, we do not accept that this requirement is a prerequisite to a motion under section 473(b) being ‘valid’ for purposes of Rule 8.108(c).”

(The court went on to note that, here, there was no evidence the delay in filing the motion to vacate as the result of bad faith or gamesmanship. So look for that possible distinction in future cases.)

Comment:

Posttrial procedure gets confusing, and dangerous. If this were a motion for new trial, my advice would be: file the appeal now. That is because you get the best of both worlds: you have safely preserved your right to appeal, and because the motion for new trial is a collateral proceeding, the trial court may hear and decide it despite the pending appeal. (Neff v. Ernst (1957) 48 Cal.2d 628, 634.) Win-win.

But the same is not necessarily true with all posttrial motions.

There is a split of authority whether a JNOV motion is treated the same way as a new trial motion. (compare Foggy v. Ralph F. Clark & Assocs., Inc. (1st Dist. Div. 2 1987) 192 Cal.App.3d 1204, 1212-1213 [trial court retains jurisdiction], with Weisenburg v. Molina (1976) 58 Cal.App.3d 478, 486 [4th Dist. Div. Two, holding that trial court is divested of jurisdiction].)

And when it comes to a motion to vacate, taking an appeal divests the trial court’s authority to rule. (Takahashi v. Fish & Game Commission (1947) 30 Cal.2d 719, 725 [motion to vacate under CCP 663], rev’d on other grounds, (1948) 334 U.S. 410; Lippman v. City of Los Angeles (1991) 234 Cal.App.3d 1630, 1634; Weisenburg, supra, 58 Cal.App.3d at p. 486.]

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

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

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

Justice Lambden also talks about his single unpublished dissent.

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

Justice Lambden serves up a lot of sage advice:

Justice James Lambden’s biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

TRANSCRIPT:

James Lambden  0:03 
Going back out among the bar without worrying row is kind of intimidating. Like they say, they don't laugh at my jokes anymore.

Announcer  0:11 

Welcome to the California pellet 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 am Jeff Lewis.

Tim Kowal  0:28 

And I'm Tim Kowal. The California appellate law podcast is a resource that Jeff and I put on for trial and appellate attorneys. Jeff and I are both appellate specialists, but we split our practices about evenly between trial and appellate courts. And in each episode, we try to bring some perspectives and news that practitioners can use in their practice.

Jeff Lewis  0:44 
And our podcast is sponsored by casetext. A quick announcement about casetext it's a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019, and I highly endorse the service listeners of our podcasts can receive a 25% lifetime discount available to them if they sign up a casetext.com/calp That's casetext.com/CALP.

Tim Kowal  1:10 
And today we are very privileged to welcome the Honorable James Landon to the show justice Landon sat on the First District Court of Appeal in San Francisco for 17 years authoring over 1000 opinions and joining and hundreds of other published opinions authored by his colleagues, more than 100 of his opinions resolved important civil issues and several of those resulted in new law either by subsequent legislation or as affirmed precedents. Justice lambda now serves as a mediator, arbitrator discovery referee and appellate consultant with ADR and we are so pleased to to have justice Landon, join us on the show today. So welcome. Thank you very much

James Lambden  1:47 
to Jeff for inviting me. I'm very happy to be here.

Tim Kowal  1:51 

And we will like I said, we're honored to have you. I wanted to start off just asking maybe some some personal questions that I've learned about you by digging. You've there have been some pieces in the daily journal and the recorder published about you talking about how you're an avid outdoorsman for many years and I wonder even what when you're on the bench you were getting outdoors. Since you have left the bench Have you been able to liberate yourself more often from the city to to get out into our beautiful exterior in California?

James Lambden  2:22 
Well, we were talking about the mural was fine is being the Eastern Sierra. I have an early picture of me when I was a skinny freshman in high school on my first backpacking trip. I went backpacking every year more than once for almost 50 years, maybe more than 50 years. And I very much enjoyed that I hiked the John Muir Trail twice, once in pieces and once through hikes. I lost 18 pounds. I lost three quarters of a pound a day during that night.

Tim Kowal  2:54 
And how long is that hike?

James Lambden  2:56 

It's about 225 miles and it took 21 days a little bit extra. When my wife picked me up in Yosemite Valley, she took one look at me and burst into tears. I was surrounded by a group of tourists who were basically wondering what happened to them. And it was one of the high points of my career and hiking. I worked with several my friends were judges as well. And I continue to get outdoors although I retired 10 years ago and when I when I retired, I did take some some of those more vigorous fights, which were daunting. But now I get out several times a week for a good five miles but I don't go to the altitude quite so much. But I still very much enjoy the outdoors.

Tim Kowal  3:42 
Oh, good five miles at a stretch is is a good number I have no I have small kids. So I use that as an excuse that it would exceed their limit. So as a result, I've gotten fat sitting in my chair. Well, and in addition to your career on the bench and your avocation in the outdoors, I also understand you're a man of many hats, literally, that you are a collector of hats that used to display in your chambers.

James Lambden  4:06 
Well, you must have seen it like it was a daily journal article and the photographer who came was delighted to see all those hats and actually did a sort of a montage I've always had floating in the air. I'm not sure exactly how it happened, but my baby pictures have me wearing hats. I had seven uncles and I was a late baby. So there was a lot of I got a lot of attention from my family. And one thing about hats is when people think you'd like hats they give them to you. So one point I had maybe 35 hats, most of which didn't fit me because people found that there was amusing you could give me a three quarter and a hat with a feather on it but it wouldn't fit me. Since I've retired. I've had better hats. And I've done a couple of mock trials in New York and I have a hat up in New York that I frequent and treat myself whenever I go, I get lecture about hats. There's there's three places in the country where you can get hats, Chicago, New York and St. Louis. And they sell their hats in Hollywood. So in California, you can find them in Hollywood as well. So we're talking about good hands. An indulgence. Yeah.

Tim Kowal  5:21 

Yeah, a hat wearing is kind of a lost lost art in my generation. There's not a lot of hat wearing going on. What's the I know, you're not wearing a hat today, for example. So what is the what's the proper decorum for hat wearing?

James Lambden  5:34 
Well, generally, you need to get one that doesn't come small, medium and large. It needs to have numbers attached to it. And you need to know what your what your hat size is, and you need to spend some money on it. I mean, they're not, they're not inexpensive. One thing that I enjoyed was it when I retired and I got back out on the street. In San Francisco, I would be walking along Market Street and middle aged woman would come up to me and say, Oh, it's so sweet to see you wearing a hat. My grandfather wore hats. That put me a little bit off because I was in the grandfather stage when I was coming up in the 60s. And the only people that wear hats were young, black, new and old white man. And I kind of fit the second category. But I enjoy him a lot. He gets me a lot of attention.

Tim Kowal  6:20
And I heard a story or I read about a story where you I know I know John Eisenberg, or I know everyone knows of John Eisenberg in the appellate world, that you gave John Eisenberg, a hat one time, that a true story is that I

James Lambden  6:34 

did, I did indeed get a Johnny hat. He's one of the few people that had a hat big enough to to that I can hand me down one. I have another good story in the Old Hawthorne laid restaurant, I went in there one day with some colleagues wearing a hat. And when I came out, I gave him my ticket. And they brought me Willie Browns hat, because he was apparently in the in the restaurant at the same time. And I teased Mayor Brown later saying that his hat was way too small for me. But she thought it was funny.

Tim Kowal  7:07 
So are your best hats. The ones that you buy for yourself or the ones that you've been given?

James Lambden  7:11 

The ones I buy for myself. That joke hats are not are not really very good unless somebody also let me try on their barristers wig, which is sort of a hat. I don't have one of those partly because they're horrendously expensive. They're antiques. I don't think I need to invest in one of those.

Tim Kowal  7:32 
 
Well, let's move on from hats and talk about talking about your career on the bench. And and now you're in private judging. Is there something can you tell us something about private judging, that you that you enjoy or that maybe surprised you as you transition from the bench as some time ago that now that you transition, but why you got advantage on both worlds? Well,

James Lambden  7:51 
I like to say that I had all the best jobs that you can have in the legal profession, I was a partner at a great law firm. And I was I enjoyed being a trial judge very, very much. And the Court of Appeal is I think, the best job in government you can have, you have resources, you've got help, you've got some influence, and nobody knows who you are, for the most part, and the game is not in the paper, so you don't get as many death threats. And I was surprised at how much I enjoyed the the private, the private world the alternative dispute resolution consulting work, partly because I had forgotten how gregarious I am. So I enjoyed seeing the people there are a lot of people in court of appeal, obviously, but they're the same people. What

Tim Kowal  8:38 
do you mean, you would you would forgotten how gregarious you are? Well, because

James Lambden  8:41 
when I was in law in motion in Alameda County, I did the whole county is in a master calendar. So I had about 30 cases a day. And during that time, you know, the estimate is in a, probably her 25 to 30,000 cases. And during that period, all of the people that I ran into tended to be the younger attorneys, given the job of going to law. And when I came out, I found that they're all managing partners. Now. They're still practicing, and they're still happy to see me and they remember me. So I discovered that I had many more friends and I hadn't seen in a long time working on the Court of Appeal is like working in a museum in a certain way. It's very comfortable, and it's very quiet. So I was really happy to get back out on the border friends again.

Tim Kowal  9:34

Yeah, you don't get you don't get as many opportunities to interact is oral argument at the Court of Appeal is not the same thing as interacting with counsel at law in motion.

James Lambden  9:42 
Ya know, it's one day a month or two, maybe and again, you kind of see the same people. I was always surprised that over half of the cases they would wait argument. I really Yeah, I would never do that. But I think at one point it was about 60% We're waiving arguments, mostly those were the criminal, a lot of those were the criminal cases. Or remember that we complained when the AGs office, which was located in the same building, and we were in would call and will appear by telephone, Justice client in particular. So we at least you've jumped downstairs. Okay. So I've always really enjoyed the arguments.

Jeff Lewis  10:25 
Yeah, it's that it's that, or what would you say is something that you miss the most from the Court of Appeal? Was that the arguments or anything else?

James Lambden  10:32 

Well, I certainly I certainly missed the people. You know, you get very close to your to your staff in particular, over the years I have had, I was on the trial court. At one point, I had seven research attorneys who report to me Oh, and on the Court of Appeal, I always had no fewer than three and maybe an extra. And you get very close to those people. I mean, you really kind of sit around in the office and Jawbone with them a lot and and get to know them very closely, along with your assistants, and they're on the staff. So I really missed the people. I didn't miss the time that you have. The thing about the Court of Appeal is that you finish the opinion when you say it's finished, although you know, we have over the years are some complaints about the delays. But having the time to reflect is really nice, a lot of motion. It's kind of a shoot from the hip decision that you make. And I enjoyed that a lot, too, although it's very wearing to have that many cases today in order to do a good job on all those cases. Because like I said, I had seven attorneys. And every afternoon after the calendar, we would line up on two couches with me in front and go down the line with them briefing me on the next day's cases. And that was makes the time go by for sure.

Jeff Lewis  11:51 
I bet I bet when I first when I was a young law student, I clerked for the la da da da is office doing preliminary hearings, you'd show up in the morning and they'd hand you 10 files. All right here your preliminary hearings for the certified law student. He just never knew what it would be.

James Lambden  12:09
Like I always I always told my my law clerks, I had a lot of interns on the Court of Appeal. And that's, that's one thing I really enjoy. And if you really want to be a trial lawyer, go to work for public office. Because they'll hand you a dozen files and say here, take care of these. And, and you will learn to talk on your feet pretty quickly.

Jeff Lewis  12:28 
Yeah, that's great advice. And you get in front of so many different judges, when you're certified law students that by the time you're graduate, and you're ready to practice, you're no longer intimidated by certain personality types on the bench. It's

James Lambden  12:41 
another story there, then it's, you know, it's a fairly small community. So I when I came on the bench, I was the first civil lawyer in a long time to be the Pope, because of Meijin. He appointed a lot of prosecutors, and my very first faladi calendar, I walked out to a packed courtroom, every da and PD in the building, I've had come to see how to land and perform that first day. And it was daunting. Then I got that I got the flops, let's actually actually have one of the defendants have a jury box filled with guys wearing orange suits. And one of them actually spoke up and said, Aren't you supposed to remind him he has a right to a lawyer? They said thank you and skip that in my script. So that was a very steep learning curve, but I enjoy doing criminal cases as well.

Tim Kowal  13:33 
Wow. Well, you mentioned that the one of the things you missed from the Court of Appeal are your colleagues. While you were at the first district Division Two, you worked alongside Justice Anthony Klein, who had been Governor Jerry Brown's legal affairs secretary and you also worked alongside justice Paul Paul hurl, who had been governor Reagan's appointments, Secretary, there must be some stories there do the did the different perspectives represented on on your panel produce better results, and it produced friction or a little about? Well,

James Lambden  14:03 
a little of both, but I think generally a very good result. Justice Harley was certainly a more conservative justice, but he was also a gentleman, and very willing to listen to different points of view. And Justice Klein was rather famous for me, opinionated. And there had been for a number of years server revolving door in Division Two, in terms of people who moved on. And there were some famous feuds in Division Two as well. But on balance, I think that I think that we did a good job. The three of us later we were joined by Justice robola. In getting along, a good example would be the very first cannabis case that was hurt in California came to work. And by the luck of the draw, went to justice Harley, and we teased him A great deal about handling the first cannabis case, including getting him hemp stationary. And I can't remember what else we did for him. But it was a good example that although he was conservative, we got the right answer. And I was very proud of the result in that case and others as well. Another one that we had was the one on one California shooting, which came through our division. And we had elaborate discussions over how to deal with that case. And I think I think we ended up with three different opinions. I can't remember exactly I know I wrote separately. So yes, I think we I think we did a good job.

Tim Kowal  15:39 

Now there's been, you know, as you were talking and made me reminded me that there's been a lot of lot of ink recently as the Governor has been looking to fill the Chief Justice slot on the Supreme Court. And there's been a lot of a lot of folks out there talking about opining about how how collegial, and how consistent the Supreme Court has been in our state and in giving a lot of unanimous decisions, despite even controversial issues. And one of the more common explanations is that well, maybe all of them, all the justices are more or less ideologically aligned, there tend to be slightly left of center. That explanation didn't quite seem to match up with, with your panel with with justices Klein. And in Harley, it seems like you were in yet during your 17 years on the bench. You never filed a dissenting opinion. So you obviously had very good collegiality produced a lot of unanimous opinions. So what was the secret sauce there?

James Lambden  16:36 

Well, I think you I think you've, you've pointed out the exact point, which is that I always tried to mediate between my my two colleagues and I didn't write any I did actually write one dissent. I'll tell you about that in a minute. It was unpublished, but I was in the catbird. Seat. I mean, generally, I was going to be the deciding vote if there was a big disagreement. So my effort was to try as best I could to achieve a unanimous, unanimous decision. If I could negotiate the the language of an opinion that everybody signed, I was very, very proud to do that. I did worry, one dissenting opinion. And I think it is my my friend, Justice ruled that it was only him. And it involves some ridiculous dispute over trees that were cut down by a homeowner's association. And I was convinced that he got it wrong. But it wasn't necessary for me to descend generally. And we wrote some very good opinions. And I think for that reason,

Tim Kowal  17:38 

you mentioned, you mentioned that the opinion over over cutting down trees, I've had those kinds of cases. And I hear about those kinds of cases. And Jeff and I have talked about in another episode about how the court of appeal has a lot of has a wide panoply of cases that it has to decide, many have very grave ramifications. There are death penalty cases or people with life without parole, there are custody cases involving parents rights to over their children. And then we have cases about whether you should have cut down my tree or not. And I wonder if that fact factors in do you get those decision those cases sometimes and say, another one?

James Lambden  18:16 
Well, one thing that was really enjoyable going back again, to what I was on the court of truck court in law in motion, I was kind of on the bubble, because if I read something in the Chronicle or the or the East Bay papers on Thursday, I might well have an ex parte application on Friday relating to that. And one thing that you mentioned trees, Berkeley, in particular is tree central for tree lawsuits. So I got a lot of those on the court. And then you also find on the Court of Appeal that you see the trend as well. If you go to the old, you know, any of the old digests, you'll discover that there's a huge number of cases involving ladders, trees and fences, because that's what people get involved in, in their neighborhoods. And then on the other end, you get big questions of policy, you know, and they really enjoyable work on the Court of Appeal is to get it in a really great policy question that you get to think about and argue with your friends about and maybe influence. I mentioned the the California shooting the one on one California shooting that was one that allowed us to debate greatly what the gun control could look like. And this was pointing years ago, more than another thing that people don't particularly realize is that we give up our First Amendment rights to go on record, essentially, you know, you can't go around talking and advocating and you should not. For example, I was never a member of the Sierra Club because their their cases were cut in front of me even though I'm an avid outdoorsman, but a good story of On the other side would be that I wrote an opinion, overturning the divorce settlement of Barry Bonds, which you may recall, which was a little bit off the off the ranch because we interpreted strict scrutiny into statute in order to overturn his divorce settlement, probably reversed by the Supreme Court. But I took a copy of the opinion that I wrote and wrote FYI on it and sent it to somebody in the State Senate. And the law was changed. And another example of that would have been the one on one California said, at the time, I wrote a concurring opinion pointing out, the legislator had pointed past a Civil Code section that said that manufacturers of firearms cannot be held liable. And once again, I took a copy of our opinion in that case, which was the result that we were forced to reach. And I sent a copy of that to the Speaker of the House, or the speaker of the assembly at that time, Don Bharati, and that code section was rescinded. So, and that's not advocacy, that's just for your information legislature. And we have the ability to comment on the law, which is important.

Tim Kowal  21:19 

No, it's interesting, because we lawyers see that from time to time in the opinions where it will conclude there'll be a topic about the separation of powers that well, while we sympathize with the appellant, this is a policy proposal that only the legislature can make, and we're not a legislature. So we we suggest that the legislature take a look at this next time it's in session, that sort of thing. Whenever we lawyer see that, should we is it safe to assume that that may be the author of The that opinion is sending a copy up to the to the legislature?

James Lambden  21:50 

Well, possibly, because like I say, it is part of our job to educate and, and bring attention to that when it's not the law. And when I when I was in law in motion, I would frequently tap on the microphone for the reporting transcript and say, Court of Appeal. This is an interesting issue. The lawyers in the audience always like to, and occasionally they listen, as well.

Tim Kowal  22:15 
I've never heard that done. But that's, I liked that idea. You can you can punctuate the record that way.

James Lambden  22:20 
Ya know, I often encourage people to appeal me, you know, more than once saying this is this deserves an opinion on things I ran across. One thing that I run across now as a, as a read a rabbi and evaluation is that there are areas where people will argue, make arguments, and they'll say there's no, there's no authority? And the answer is will nobody ever brought it up. And there should be an opinion on this, or nobody. It wasn't needed, because you're wrong. It's not It's so obvious that you don't, you're not going to find authority because nobody's ever going to bother.

Tim Kowal  23:00 
Yeah, you're so obviously wrong, or or you're just brilliant, and no one understands.

James Lambden  23:05 
Yeah, and by all means, if we can't sell it today, go ahead and file your appeal.

Tim Kowal  23:10 

Right. Now, I just wanted to go back to one thing that you mentioned about the you are in the catbird seat when you're on your panel with with your colleagues. And I wonder if that if that can translate in any practical advice to practitioners who are they're drafting their their arguments in their appellate briefs? And maybe they're maybe they're envisioning their panel? Maybe has they got one vote to to reverse one vote to affirm and then there's a there's someone like justice Landon Landon, in the catbird seat, is there something that you can use to kind of modulate your arguments to to appeal to that middling row position?

James Lambden  23:45 
Yeah, well educate yourself. Because sticking with that point, I often had the feeling that I was being spoken to, in the arguments, because they might, in that particular case, think I was going to be the deciding vote. But I advise people, when I'm doing appellate consultations to try to figure out who's going to write this opinion, I still, you know, I still know most of the people on the Court of Appeal, and even the ones that didn't work with so when we're, when I'm consulting, the very first thing we want to I want to try to do is to figure out who we think is going to write this and what their predilections will be, and who might be the who might be the person that's going to argue with the author, as well. It's kind of hard to do. And it's one of the things that a pellet, ADR consultant can do as we did in in that before when we were still appearing in person. One thing that I enjoyed doing was showing up in the at the arguments because they know that you're sitting up and they pretty much know why you're there because you've been involved in the case is you may remember that when Justice cokie retired from the third district, he got a little bit of a stir because he showed up as an advocate, like in the same court within a month or two She was noticed nothing wrong with it. Can't remember the case, but it was obviously designed to be influential.

Tim Kowal  25:08 
Yeah, we have the same thing happening in the ninth circuit with former judge Kozinski, former chief judge because it because insky is now a practitioner in that court.

James Lambden  25:15 

I've got a lot of convinced case stories, but I probably won't tell you most of those, because he's very interesting, though.

Tim Kowal  25:20 
Maybe after the red light goes off all Alaska again, you described yourself as a judge as being an academic judge, and that you're you're trying to get the right answer. And I wondered if you could just elaborate on that a little bit. Are there? Are there different schools of thought on that point? I would think that that all judges are trying to get to the right answer. But I wonder Well,

James Lambden  25:40 
I think if I had to restate that, I would say that I'm a process Judge, I wants to describe myself to one of my colleagues as that our position is a guardian of due process. One of my colleagues, federal judge was confronted in a country store somewhere. And they sort of braced him saying, Well, are you one of them liberal judges? And his response was that well, if Congress passes what you consider to be a liberal law enforcement, if they pass a conservative law, I'll enforce that. I think we, as I mentioned earlier, we give up our First Amendment rights to some extent. And the pledge is that we will, you know, stay within the lines and trying to try to make sure that the process itself protects the law. And even if we may disagree with the result that we reach, and I've disagreed with a lot of opinions, a lot of the results that I have reached personally, but the law is the law. What about

Tim Kowal  26:41 
your work in private judging? Do you do you see your role as being the same? Do you? Is it following a process? Or is it trying to get a right result? If those two things are different? Or is it is it a different kind of animal? Well, one reason I enjoy

James Lambden  26:54 
 
it is that it's very much a different kind of animal. And it's more directly applicable to the problem. The legal process is opaque to most people, except for the lawyers. And the fact that I get to educate and advocate directly to the parties is and is required, because they're the ones that are deciding what they're going to do with their case. They're all surprised to hear when I tell them that my entire career almost 50 years, more than 95% of the cases that are filed in court settle. And they're shocked by that they assume that everybody, it all goes to trial? No, it doesn't. And one of the things that I'm enjoying about this private practice is that there is a growing realization, particularly post COVID, that litigation is not like preparing for a battle is more like going on an expedition. It's more like taking a trip across the mountains and encountering different places where you have to do different things. And I'm seeing that lawyers are beginning to appreciate that more so that you know, you don't sit down and just think well, I'll threaten the other guy that I'm gonna go to trial, and I'm gonna go. And well, that's really not what the process is going to achieve, if that's your attitude. So I've always advocated against going away from the sort of chest beating, threatening, beat you in court kind of approach to being as collaborative as you can, that you got two clients that aren't getting along and have a dispute and you need to help them resolve it. So I think that the new paradigm now is much more shifting in that direction. Like I can feel it, partly because the courts are appreciating it. They're appreciating that managing the calendar, rather than simply calling the case and trying it as a much better way to resolve the disputes, basically recognizing that most should settle.

Tim Kowal  28:55 
But what do you mean that you said you you see things shifting what what has changed? I very much like that observation that litigation is not a battle, it's more like an expedition. Because in my experience, it feels like at the beginning of a case, you only know what your client has told you. And maybe you've done a little bit of independent investigation just to satisfy your your one 20.7 obligations. But usually, by the time you get to trial, you're looking back at your complaint and you think, gosh, if I only knew then what I know now,

James Lambden  29:22 

well, I advocate an early not evaluation, the mediator, but an early early evaluation of your case by recognizing those signposts along the way, or things will occur. A good example, though, is an early mediation, where the complaint is filed and you call up the other side and beat your chest and said how powerful and what a great attorney you are, and then decide what comes next is frequently useful to decide, well, let's do the P and K the person who was qualified deposition right now. And then let's talk to a video or alternatively, Let's start thinking about what this what discovery is going to be like, if you've got a case that has a million items, electronically stored information, you should be able to recognize that's going to be a problem. And that the other side is going to object, everything and you're gonna object to everything. So think about how you're going to manage that. Because you are going to management management, no matter how many times you go to court and shout at each other over somebody's not answering or answering effectively, you're still going to have to get over the information. So another thing that I'm seeing more from the courts are references for the discovery of doing a lot of them. And in the old days, there was a reluctance to do that, because of the expense to the parties and the feeling that you were putting people off to somebody else, plenty of authority now that you can't just assign your discovery calendar to a referee, but you can assign the management of discovery to a referee. And ultimately, it may be cheaper for the parties, to not have to reserve a date go in and yell at each other for each problem they arise. So what I'm doing a reference, for example, we have an initial meeting where I'm kind of mediating, say, what are your What are your B's going to be like? What do you think's going to happen with all of this ESI? How is it going to be managed? And then regular conferences that are reported to the court? What's going on? Now the judges in court love it. Really, I think that's something that's really changed, rather than being reluctant to get help outside of court. Now they're seeing what a boon it can be in terms of not just putting the work on somebody else, but actually making the case get settled and get moving. Yeah.

Tim Kowal  31:44 
I hate discovery disputes. Yeah, well, and another example

James Lambden  31:47
would be, this comes up in a mediation where I've been talking to the parties, it's businesses being let's say that the one, the one issue is going to be the value of the stock there are. So you can you can either stipulate or get the court to appoint an accountant who will decide that issue and present it and the case will sell. And she got that number. And I've done some arbitrations like that, where they brought me just one issue inside whether or not this agreement for purchase and sale of stock is enforceable. Once they get that answer. It's done.

Jeff Lewis  32:23 
So we talked about evaluating cases like pre trial in terms of discovery, how about in terms of appeals and post trial is the best time to get a neutral involved, immediately after the adverse verdict when emotions are running hot, and someone's thinking about appealing or maybe a year later, when appellate briefs are about ready to be written? When's the best time to get a neutral evaluation of a possible appeal?

James Lambden  32:47 

Well, one thing you mentioned that in the right case that needs it, you can afford it, you should hire your appellate lawyer before the verdict. That's number one. And then secondly, appellate mediations are difficult, because somebody's already won. And that generally means that they're going to try to bring it to me, for example, to tell them who's going to win the appeal. And that's not particularly useful, because that can't just say, I think the court was wrong, give them the money, because they're, they're not gonna like that answer. But you can, you know, evaluate in the right case have better result. And that's where the evaluation of an appeal with a mock trial may be useful to write the briefs as well, to say it's not only here's how your argue can be improved, but this isn't the issue is really going to matter. And this is the one that they may or may not publish on. We have done in my office focus groups, we have a number of retired justices. So we've actually had cases where we've been large enough that they've hired maybe two or three panels, multiple justices to here and then vote on what do you think the result is going to be? And they pay attention to that?

Jeff Lewis  34:07 
Let me ask you, I've got buddies from law school who have done moot courts with in advance of appeals. What can a retired justice offer or group of retired justices offer in a in a mock argument that my law school pals camp? Well, it

James Lambden  34:21 
depends, you know, I would say this, some of my, you know, there's a wide variety of how good that experience can be. One thing I would suggest is if you're going to bring a mock trial, hire, find one of your law school buddies to play the other side and get somebody that you know, will do a good job. And then make sure that you get justices who will engage many of the oral arguments on the Court of Appeal are not particularly engaged, but get people who will really take him seriously in terms of not acting like they used to on the bench, but actually being interested in your problem. And that's helped me in that regard. It's helpful if you bring us in to talk about the case when you're writing the briefs. When when you're putting it together, so the typical consultation for me it starts at that point, maybe the appellate brief is in file and the respondent wants just wants to help draft, you know, help draft the reply. And if we're engaged at each stage of the appellate opening, brief response, and then the reply, it's pretty easy to direct people in the direction of where do you think the arguments gonna go? Particularly if you're forewarned in some fashion by knowing who the panel? Yeah, yeah. All right.

Jeff Lewis  35:35 
So you shared some best practices in terms of things to make sure you do in connection with a mock trial. I wonder whether it's mediation or evaluation, post trial, are there any pet peeves, or things that lawyers should avoid doing to make sure they get the best value out of an evaluation or mock trial?

James Lambden  35:55 
Gender, generally, it's a good idea to practice your elevator speech on what the script is, too much information is not helpful, you know, frequently, they'll send, even in a non appellate case, they'll send their whole file, read all my briefs filed in this case, and that's not particularly helpful, the thing that's most useful is to focus on what's going to be important. So. And I observed that when I was a trial judge as well, I get to the day of trial, and it occurs to me, these people don't really have a theory of their case, they haven't really figured out what they're going to argue here. So you need to regard it as a narrative from the beginning and write your script accordingly. And then when you get to somebody that you're paying a lot of money to evaluate, make sure that you're bringing up the points that are pertinent, or ask which points are going to be pertinent. But that's, that's the point of having somebody evaluate. And there's been a real shift that everybody recognizes now from sort of a sociological approach to mediations to the evaluation approach, which doesn't mean coming in and you know, you arrive and you say, Judge, evaluate this and tell them to pay me, it means that you'll actually talk about what's going to happen and what the moving parts are, which aren't all legal, and aren't all money. A lot of times it's Mother, Mother always like to invest or I hate my brother in law. That's, that's one of the things that's much more interesting and enjoyable quark is dealing with people.

Tim Kowal  37:30 
That's, that's what you refer to as the sociological part of the case.

James Lambden 37:34 
Well, you know, originally, the mediation work came from sociological studies about sort of getting people to recognize their own interests and get it off their chest and cause them to have some sort of a kumbaya moment where everybody shakes hands and says, Oh, we didn't meet, it will settle. Everybody realizes that, that's interesting. But it's not really how it works in Hurly burly of the legal world in litigation. But it's still a factor. So I expected because of the, you know, taking some mediation courses, that there would be a lot more of this sort of warm and fuzzy stuff about trying to find out how people are feeling about their opponents, it's pretty easy. Usually, they're mad at their opponents, you know, you walk in the door, and they know that you're, they know that somebody's either suing them or they're being sued and sort of pissed off, I kind of refer that as a fortress mentality, that everybody hunkers down behind their battlements and says, We're gonna win this battle, and assumes positions without really thinking about what that means, in terms of a two year court delay to get a trial, the amount of money they're going to spend on their lawyers, and you know, what their hard feelings are worth to them in the real world. So that that part I still enjoy very much, but it's kind of subrosa legal discussion.

Tim Kowal  38:57 
Yeah, as you talk, I hear you, I hear you talking, touching on a lot of themes that I could, I could describe as theory of mediation and different it's a different skill set, or it's a distinct skill set from from the skill set, you practice as being a jurist. And I wonder, is, was the transition to to, you know, to adapting and, and utilizing these, this mediation skill set? Was that natural or that takes some time to, to learn these? Or did this all come from being on the job training being a superior court judge and then a Court of Appeal justice?

James Lambden  39:32 

Well, some of each, a lot of my colleagues, both trial judges and appellate justices kind of find that transition to be difficult. This sort of going back out among the bar without worrying the row is kind of intimidating. Like they say they don't laugh at my jokes anymore. So there's that and then there's also the situation where the instinct is to be very Evaluate it right off the bat, say, I've read your brace, you're gonna win pay him. And that that won't work. Also, judges are sort of taken aback to discover that they're not working for the lawyers. Really we are the lawyers pick the mediators and arbitrators. And that that can be a little intimidating. But my background was searching the internet also, in terms of what I did, as extra extra curricular activities on the Court of Appeal was that I was more open to being out among the people and paying attention to their non legal questions, and non legal interests. And I've always was, I always thought I would end up being a professor, because I really like educating people turns out that I can do that get paid much better than I would if I was a professor. So I'm doing it now. So that part I enjoy a lot. And as I said earlier, being able to talk directly to, to the people who are the stakeholders, and answer their questions is very, very enjoyable.

Tim Kowal  41:03 
Well, you mentioned about the elevator pitch problem we talked about a lot is the throwing the spaghetti at the wall problem when you don't have a theory of the case. And you're just gonna throw all your arguments out there. And it made me think back to from your time on the bench, are there some best practices that you can share with our audience about brief writing to grab the court's attention? I take it the same, the same advice would apply there. Don't throw all this spaghetti at the wall. Do a lot of attorneys have trouble learning that that lesson?

James Lambden  41:33 

Well, one thing that I love about attorneys and one thing that annoys me is that there's so thorough that the one thing that an attorney fears more than being buried alive is missing center. So think about the bar exam. It's all about recognizing issues, so that thoroughness leads to over writing. And over arguing, generally, when I was on the law in motion bench, I frequently would raise my hand and say, Okay, you're running the loop again, you don't need to do that. I've heard the argument the first time. Another thing that I used to say is, somebody had told me that I could I could have wrote written a shorter brief, but it didn't have enough time. Because it takes more time to write succinctly. And that is to write to the point. So not giving up an issue. I think I used to say on the Court of Appeal, there's nothing stronger than conceding an issue to say, all right, Your Honor, I know that issue is not my strongest point. Let me tell you what my strongest point is.

Tim Kowal  42:37
But that goes against all of our training.

James Lambden  42:38 
Exactly. And it takes courage. It takes courage to do that. Because your client then like to hear that bro, one thing you know, your clients pay by the edge of the briefs, to be thorough. So

Tim Kowal  42:51 
what's the advantage of conceding a point? What what is that by the attorney,

James Lambden  42:55 

it buys you credibility in the Court of Appeal, to argue a point, that's clearly not the most important point, and you've got 15 minutes to make your argument is just a waste of time. And we always noticed, when somebody would say, I'm not going to talk about that, I'm going to talk about this. That's, that's what's strong about it. And it takes the courage of your convictions, knowing what your case is about, and not simply being ultra thorough. I would say to that, I will I will mention one other pet peeve, I suppose at the pet peeve would be the, the, what you'd call it the the battle theory that you I'm not going to answer any of your questions. You're not going to get any cooperation out of me ever on anything. I'm going to fight you tooth and nail right to the courthouse steps in front of a theory. I still run across attorneys that behave that way. And it's it's always annoyed me but it's also a counter purposes with what their what their job is. And, you know, I think we've all observed there a sizable percentage of attorneys who get along pretty well, despite being unpleasant. You know, you can settle, you can settle cases, you can, you can recognize cases that will settle this because I'm tired of dealing with that. So, I always encourage people to remember to show my compassion but allow your opponent to save face, you don't need to grind their heel on the fact that they've lost their emotion.

Tim Kowal  44:28 
I wanted to ask you about something that I was thinking about recently about one of the differences between the California State appellate system and in the federal system is that in the California State system, we don't have horizontal starry decisis meaning that a court of appeal in the in California can look at another District Court of Appeal opinion as persuasive or not. If the court doesn't is not inclined to agree without holding. It's it can treated as if it doesn't exist. And I wondered if you thought for Your time on the bench. This makes a big difference or a small difference in in your work and as a as a justice deciding the cases there's practitioners out to keep in mind. Well, there's a

James Lambden  45:11 
parallel question there. And that is the perennial fight over whether or not you can cite unpublished cases, which are available to everybody. And it's, you know, the old kept secret that Court of Appeal justice can look at it and publish case and like the reasoning of it, and find a way to put it in an opinion. You make me think of a recent arbitration that I that I did, where I actually put a footnote in pointing out that if you read the Mon chars decision from the Supreme Court that the Justice Lucas road, if you read that carefully, it essentially says that an arbitrator can look at anything, you know, you're not going to have an appeal on it, and not limited to published opinion. So I think I was, might have shocked the parties because I had this arbitration where both sides were arguing at great length, unpublished opinions and complaining that the other guy should be allowed to cite them. And of course, I found all of them very persuasive. And wrote an opinion that way, so. So you can always find a way to get the reasoning into the case. And as you know, I would admit that a court of appeal, justice will do that, and adopt the reasoning of the case. So I think that happens in all the court system. You know, it's not once again, it's not a big community. So we know what other people have said,

Tim Kowal  46:36 
ya know, that that's a good thought. I mean, that the point that you that a lawyer may not cite an unpublished decision, but that practitioner could still copy and paste the language that reasoning make the same argument, and it has as much binding authority. The reasoning has as much binding authority as another published District Court of Appeal opinion in that it doesn't have any binding authority. It's it's what the Court of Appeal decides it finds persuasive or not.

James Lambden  47:04 

Well, and you know, I can't give you any citations. One thing I loved about my friend justice client, is that he could give you the citation for every case he ever wrote. But if I, if I had some time to study it, I can show you some appellate opinions that contain the reasoning of unpublished opinions, which then makes them published, which is, which is the way it works? So you know, the right answer is where you find,

Tim Kowal  47:33 
yeah, yeah, that's right. Let me ask you this question. Most appellate attorneys that we talked to would would love it. If the Court were to issue more tentative opinions or focus letters and your divisions practice, when you're on the bench was to issue focus letters before oral argument, which would tell the advocates what issues the panel was particularly interested in hearing about during oral argument? What was your experience, like with the focus letter, it was was it positive,

James Lambden  48:00 
it was definitely an ad, I'll go back a little further to say that I wasn't the wasn't the midwife for the idea of tentative rulings, but I was there at the birth. And the idea on the trial court was that you didn't make people come to court, you know, you put it on the phone line, what the ruling was, and they wouldn't show up. But on that on my trial bench, I most frequently used it to say parties appear, I want to hear your argument on this point. And I would say, parties appeared. And I'm interested in this, and they would show up, and that carried over to the Court of Appeal on the Court of Appeal. Originally, when I started, the idea was, well, if we give them a tentative ruling, they're just going to come in, argue with us, and tell us we're wrong. And we've already written the opinion. So we don't want to hear it. So the compromise was really the focus letter, which is kind of like saying parties to appear, we want we want this is what we want to hear about. And then also avoid that concession problem and discuss some issues that we just that aren't going to be important to us. So I think it worked really well. I know that some of the divisions, I think in the first district are now posting their draft, which was done in the fourth different for many years. And I haven't I have no objection to that either. But I think the focus letter makes the argument better, because you're actually saying this is what this is what we're interested in, rather than here's the draft, and once again, you can come and argue with us and tell us we're wrong, which is which is not really helpful. It comes from my actually thinking that oral argument is important. Versus as I said, surprises me that so many people weigh that and it may be appropriate and routine cases. But on the other hand, if it's worth appealing, I think I'd like to talk about it.

Tim Kowal  49:51
Well on that subject you your division did not have I wasn't aware of this your division did not have time limit on oral argument you had said at one point that we just let you talk until we're not until you're not interested anymore. And I wondered if maybe the corollary to that is at some point, the panel probably is no longer interested, how do lawyers get the hint that they ought to stop talking?

James Lambden 50:13 

Well, we would let you know, obviously, we'd never, in all my years on the on the Court of Appeal, we never use the lights that light up and say you're done. But you make me think of an interesting story where it was turned back on us, the late Dennis Reardon, passed away very recently, was a real favorite of ours. And I can remember a day in an oral argument where he had his notes, and he was arguing at great length and became frustrated, closed his folder and said, Well, if you guys don't get it done, and sat down, we all we all laughed uproariously, actually. And it was and it was very, it was very amusing. And it was very tennis as well. Yeah. So we were never, I can remember reading well into the lunch hour, if we found both attorneys with an issue that mattered talking very well without the particular issues. And we often would set calendar that way. If we had a case where we were really arguing about the result, we could at last, we could run into lunch, because I think all of us enjoyed argument

Tim Kowal  51:25 

that any attorneys abused the privilege and just droning on and on and on, even though the bench may have been cold.

James Lambden  51:31 

No, we wouldn't let him do that. When you're when you're when you're done, you're done. I should say to that. Another thing about being with Harley and Klein was that I think I presided. It was actually presiding judge and oral argument maybe two or three times in 17 years. And a couple of those were when I was protesting in a different division, because one of them was always there. Yeah, because the only person that served longer with Klein was Harley, and by about six months, because I like to say I did a 70 year sentence with Klein.

Tim Kowal  52:06 
Well, I wanted to conclude by talking about your work on access to justice more broadly. And I know this has been part of your life's work since 1997. You've you were first a founding member and then chairman, and now an ex officio member of the California Commission on access to justice, you served on the board of the National Consortium on racial and ethnic fairness, for nine years, you chaired the access and fairness Advisory Committee of the California Judicial Council. And in 2013, you received the Benjamin oranda award for your lifelong work to removing barriers to access to justice. And you've talked before about how your sister's hearing loss initially spurred your interest in helping the deaf and blind to gain better access to justice. So when you started this journey 25 years ago, and you're working on access to justice, what were the resources like and how have they improved?

James Lambden  52:55 
Well, there wasn't much when I was a young lawyer, and because of my sister, I, and also because my firm had clients when the California School for the Deaf was in Berkeley at that time, I was really struck with the fact that if you're deaf in the courtroom, you're excluded, completely excluded. Nothing know what's going on. Basically, my very first project was to get the Bar Association referral line put on a TTY so that deaf people could actually get a lawyer. And once you open that door, and you see the barriers to justice the first time you see them everywhere. And when I started working for the court, I remember those signs, maybe to you remember, there was a sign on every clerk's desk that said we're not allowed to give legal advice go away, basically. So something as simple as where do I file this? And he would frequently said, well, we don't have to tell you and got rid of those. I was lucky when I came on the Court of Appeal, in particular, because I followed the appointment of Justice George. And he very much agreed that without access, there is no justice. So that was really kind of the golden age of really pushing on the issues of the fact that many people are excluded, whether by language, whether by their hearing impairments or disabilities or anything else like that. If they're not allowed to get into court. That's a problem. And it's still it's still goes on, obviously. And it's been one of the big rewards of my career to be able to work on some of that stuff. I'll tell you, I know that you'd like to hear one more story. One was that when I was working on all those committees of the State Bar and the Supreme Court committee, we tried for years to get a budget line item in the California budget for legal services to fund legal services at the community level. We A proposal of one year and before Governor Schwarzenegger and he didn't sign it. We proposed it the next year. And he didn't sign it. The third year, we changed the title of it to the Sargent Shriver access issue. And we always believed that Maria Shriver probably had a little f, little influence on the governor because he signed it. And it was the first time in California had ever actually funded legal services at the at the level. And it's been a line item ever since. And I think we're somewhere north of 4000 for Excuse me $400 million. It's been the same spent on legal services. So I'm very proud result.

Jeff Lewis  55:46 
Let me let me ask you a related question. When I first practice started practicing law 26 years ago, when I showed up in a courtroom, anywhere I went, there was always a court reporter. last 510 years, there has not been court reporters and civil departments. And this past month in LA, they just announced that in family law, probate, writs and receivers and the department's in handle restraining orders for domestic violence. None of those are going to have court reporters anymore. And the presiding justice for LA announced that it's, it's not a problem of compensation. There's just not enough court reporters out there to show up and do the work. And I wonder if you had any thoughts from your years on the bench about this court reporting crisis, and access to justice and where this is going to end up?

James Lambden  56:30 
Well, it's interesting, because when I came on the bench in the late 80s, everybody was all excited about the possibility of electronic records. And we actually my first courtroom had been outfitted with recording devices and cameras. Nobody ever really thought about the question, is the Court of Appeal? Are they going to watch the film? Or are you going to transcribe it? And if you're going to transcribe it, that's a court report. So rapidly, everybody realized that court reporters, I used to prefer to call them word processing technicians or something or communication directors, something like that, because they did way more than simply transcribing good example would be the death question again. My court reporter was the first one in Alameda County to have the real time reporting screen on her computer. So I got all the deficits, because they can come in and they can read what was going on on the screen. So the technology has improved, but you still need someone to do the work. So I think our reporters, now I still get a lot of them, even though my calls are adroit at running the equipment and figuring out how to make sure that everybody's on the Zoom call and that sort of stuff. A lot of the work that I do know, in arbitrations, I have court reporters out of state, it's similar also with interpreters. We get a lot of out of state and interpreters, because they're all over the place. So that's another good way to wrap up the comment I made earlier about how there is a paradigm change. We haven't really felt it yet. But remote access is really changing the landscape in a good way. I think. And it's been a long time since I was trying to argue in front of the judicial council to say that we should allow video arraignments rather than putting the poor guys on a bus at 3am and driving them across San Diego County for four hours, so that they can stand up and say not guilty. So looking back over my career to when we were having arguments about whether or not that was a good idea, everybody thinks it's a good idea. And the clients think it's a good idea in civil cases. And once that happens, things change. Very quickly.

Tim Kowal  58:56 
I think I love your your comments on that. Earlier in the discussion, you you mentioned how you saw yourself as a process judge, and you saw that one of the important roles of a judge is to afford a fair process to lead against and I think that really does dovetails exactly with your work on access to justice, because it's about affording an opportunity to everyone in our state and our opportunity to be part of that process, whatever the outcome is, that's going to be dictated by the law and sometimes forces out, you know, beyond beyond the road that you're wearing. But but your job is to is to afford that process. And and it's hard to do that if not everyone has access to it. So I know you've mentioned that access to justice is your one exception to not being ideological about things and I think that is a worthy exception to allow. And I thank you for your time justice Landon. Although I do you have to ask to Yes, you do indulgence and just a few more minutes so that we can run a very quick lightning round today to ask. Jeff has got some some doozies to ask you for the benefit of our listeners. Those who have come to expect. This from our show,

James Lambden  1:00:01 
is there a buzzer or something that I have to press?

Tim Kowal  1:00:05 

You have to wait until Jeff finishes the question before giving your answer that made me hard. A little, a little

Jeff Lewis  1:00:11 
twist on this. You know, most of our guests are pellet nerds and have strong opinions about fonts and spacing, we're not going to be asking you what you prefer to use in terms of when you write. But we're going to be asking you what you prefer to see when you're on the bench or as a neutral in terms of making something the most readable or persuasive. So a little twist on the lightning round. So here we go. Do you have a preference regarding fonts, like century school, book, Garamond, or anything else? When you're reading a brief,

James Lambden  1:00:39 

I use Times New Roman. And there's something about that that's a little classic to me. And I liked that. The main thing is to make it big enough for me to see, you know, the court rules take care of that. And the pate, the word counts takes care of that. And well to in my career, I've seen every trick in the book to get extra extra words in and you've already heard how I feel about writing too much. So keep it keep it short. Keep it going and see

Tim Kowal  1:01:07 

and, and don't skimp on the on the font size.

James Lambden  1:01:11 
Yeah, yeah. Well, I should mention too, if you're able to do hyperlinks, we love them. And more and more people are doing.

Jeff Lewis  1:01:20 

Yeah, that was my next question. Actually briefs with either hyperlinks to the record or to cases, if you find it helpful or distracting,

James Lambden  1:01:27 
absolutely helpful. You know, older judges and justices have a rep for VA not particularly technological. Those of us who are bought into it, we love it, it makes it much more much easier to work on.

Jeff Lewis  1:01:42 
All right, fantastic. And then in opening brief, oftentimes, there's an introduction or a summary of argument, when you were on the bench. Did you prefer that there'll be citations to every statement in that argument? Or in that summary of argument? Or is it okay to kind of skip the citations in that summary,

James Lambden  1:01:59 
not in the introduction, the introduction should be your elevator speech. And we've talked about that. And I like to have the elevator speech at the beginning, roll all the way back to the concluding paragraph. So the citations go in the middle, but tell me what your problem is about front. When I was on the trial bench, I used to tell people to use the ass backwards system, write the order. First, write the order that you want me to make for you make your argument don't jump right in on the argument, because you need to know what you're asking for your start.

Tim Kowal 1:02:33
I think that's great advice.

Jeff Lewis 1:02:35 
All right. And then final question of a lightning round when you were reading briefs on the bench in terms of main arguments, all capital letters or initial capitals or sentence sentence case? Did you have a preference in terms of your eyes or what made it more readable?

James Lambden 1:02:50 
Well, you know, the points and authorities aspect where the point is made, I think any sort of emphasis on the point and making sure that it's short, whether you underline it, or make it bold, maybe bold is going a little too far, I tell the sizing would definitely be going too far, because it's a little harder to read italics. But make those points stick out. I would also mention that I'm a big fan of bullet points. And I think I think most of my colleagues are some might be annoyed in a brief, but in the kind of recent I get in my work now I like bullet points a lot. So if you can think of them in terms of being bullets that are a little bigger than have stories, that's fine.

Jeff Lewis  1:03:32 

And how about in terms of readability, either while you're on the bench or today in private practice to spaces or one after a period?

James Lambden  1:03:42 

I go with two. But I think that maybe is a little bit more readable. You know, obviously, we used to have arguments about that there are no rules for commerce, but trying to make your sentences, assemble your sentences will add a lot of content. Because if you got a lot of comments, it probably means you got a lot of clauses, and a lot of clauses is not a good thing. Sentences shouldn't be direct. And paragraphs. paragraphs should start with a topic, fill in the examples and end with a conclusion and people kind of lose that. Everybody knows string sights are not necessarily good. Yeah, you're not gonna want to do those. You know what we one thing we enjoyed on the bench when we were able to bring our computers up to is to pull it, pull a case out of the middle of the string side, mask them about it. So once again, keep it short and keep it to the point.

Jeff Lewis  1:04:32 
Yeah, you know, my staff knows I don't really know how to use commas. I think I'm a pretty good writer, but I don't know how to use commas. So generally when I'm editing briefs, I just rip to shreds any sentences that have commas. Just

James Lambden 1:04:44 
recommend I'd recommend that book. You've probably heard it's called each shoots and leaves.

Jeff Lewis  1:04:48
Yeah. Right. All right. Well, you have survived our very first justice edition of lightning round. So congratulations and yeah, well done.

James Lambden  1:04:59 

Well So I appreciate you inviting me and I hope you'll have the again, I've got obviously got a lot of opinions about, about the work that I've done in the past and what I'm doing now.

Jeff Lewis  1:05:09 
Oh, we're gonna invite you back to talk about the cases where unpublished decisions were transformed or cited into published decision. So

James Lambden  1:05:19 

we do prepare by having my footnote from the month chars decision sort of summarizing, but justice Lucas sin, which is kind of well, anything goes, you know, a fair result, which I think is interesting when you're talking about arbitration.

Tim Kowal  1:05:35 

Well, we always love a good example of how to get around the rule against citing unpublished opinions. So so that will go in the annals. So that that wraps up this episode. And again, we want to thank our sponsor casetext for sponsoring the podcast each week when we publish the episode, we include show notes with cases that we discuss and we use case text for those links. listeners of the podcast can find a 25% discount available to them if they sign up to case text at casetext.com/CALP,

Jeff Lewis  1:06:02 
and if you have suggestions for future episodes, please email us at info at cow podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  1:06:12 
See you next time. Thank you very much.

Announcer  1:06:14 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a 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 ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

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

Watch the clip here.

This is a clip from episode 30 of the California Appellate Law Podcast. The full episode is available 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.

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

Here, the father kept calling the mother’s supervisors at the U.S. Navy, making allegations about family finances and emotional abuse. There was no physical abuse, but the family court found it was harassing and issued an domestic violence restraining order.

Eventually, the calls stopped. The court found that the father was not jeopardizing the mother’s safety. And so the restraining order was lifted.

When it came time for a custody award, the family court reiterated that the father had committed domestic violence in the past—the manipulative phone calls to the mother’s employer—but that the presumption under Family Code section 3044 was rebutted and so in the best interests of the children awarded custody 50/50. But the court did not make any of the written findings required under section 3044(b)(2).

The absence of written findings required under Family Code § 3044 required reversal.

By making a finding that the father had committed domestic violence, the trial court triggered the mandatory rebuttable presumption under section 3044 that awarding any child custody to the father would not be in the child’s best interests. (Ellis v. Lyons (2016) 2 Cal.App.5th 404, 415.)

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

First, the court must find that the parent who has perpetrated the domestic violence has demonstrated that it “is in the best interest of the child pursuant to Sections 3011 and 3020” to give the perpetrator sole or shared custody. (Id., subd. (b)(1).)12 The statute specifies that in making the requisite finding regarding the best interests of the children, the court is prohibited from relying on “the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040.” Second, the court must consider each enumerated factor contained in section 3044, subdivision (b)(2) and “find that the factors in subdivision (b), on balance,” weigh in favor of granting some amount of custody to the perpetrator in terms of protecting the child's health, safety, and welfare. (§ 3044, subd. (b).)

Importantly, section 3044 mandates that the trial court “make specific findings on each of the factors in subdivision (b).” (§ 3044, subd. (f)(1).) “If the court determines that the presumption ... has been overcome, the court shall state its reasons in writing or on the record as to why” the two-step requirement has been met. (Id., subd. (f)(2), italics added.) Thus, “[t]he statement of reasons must address all of the factors outlined in section 3044, subdivision (b). [Citations.]” (Abdelqader, supra, 76 Cal.App.5th at p. 196, italics added.)

(This blog discussed Abdelqader here.)

The failure to make the findings was prejudicial error (but the analysis on this point is underwhelming).

On appeal, the father argued that the family court’s failure to make the findings under section 3044 was harmless. That is, had the court made the findings, the court would have come to the same result.

The Court of Appeal disagreed. But the court did not point to any record evidence to suggest the section 3044 factors would have come out a different way. Specifically, the required factors under section 3044(b)(2) involve:

(A) whether the parent should complete a batterer's treatment program (but there was no battery here); (B) whether the parent should complete a program of alcohol or drug abuse counseling (but there were no references to substance abuse here); (C) whether the parent should complete a parenting class (but there were no references to inadequate parenting here); (D) whether the parent had satisfied conditions of probation or parole (but the father was not on probation or parole here); (E) whether the parent has complied with a restraining order (here, the father had complied); (F) whether the parent had committed further acts of domestic violence (other than the phone calls, there were no further acts); (G) whether the parent is a restrained person in possession of a firearm (there was no suggestion of that here).

But the court did not analyze prejudicial error of the missing findings by discussing the factors directly. Instead, the Court of Appeal found the missing findings were prejudicial in the abstract—almost as though it is structural error. (But see F.P. v. Monier (2017) 3 Cal.5th 1099 [absence of required findings is not structural error].) Here is how the court analyzed the prejudice of the missing findings:

“The purpose of the rebuttable presumption statute is to move family courts, in making custody determinations, to consider properly and to give heavier weight to the existence of domestic violence.” (Jaime G., at p. 805, italics added, citing Sen. Com. on Judiciary, Analysis of Assem. Bill No. 840 (1999-2000 Reg. Sess.) July 13, 1999.) “Presumptions are used in this context because courts have historically failed to take sufficiently seriously evidence of domestic abuse. [Citation.] [¶] “Without such [pre]sumptions, it has been too easy for courts to ignore evidence of domestic abuse or to assume that it will not happen again. As with the limitations on consideration of the gender of a parent or child, presumptions function to counteract the proven tendency of some courts to make judgments based on ignorance or stereotypes.' ” (Jaime G., at p. 806, quoting Bartlett, Preference, Presumption, Predisposition, and Common Sense: From Traditional Custody Doctrines to the American Law Institute's Family Dissolution Project (2001) 36 Fam. L.Q. 11, 23.)

“By enacting the seven factors in the rebuttable presumption statute, the Legislature created a mandatory checklist for family courts. Mandatory checklists can improve professional decisionmaking for professionals as diverse as surgeons and pilots,” and although such checklists “can seem bothersome to experienced professionals,” the Legislature created a checklist in this context in order “to require family courts to give due weight to the issue of domestic violence.” (*Jaime G., supra*, 25 Cal.App.5th at p. 806, italics added.) In addition, the requirement of written findings or findings otherwise stated on the record was included to facilitate meaningful appellate review grounded in the “policies set forth in the governing law,” which is “essential to the creation of the body of precedent necessary for the system of rebuttable presumptions to produce consistent and predictable results.” (Ibid.)

The court went on to note that the lack of findings frustrates appellate review.

Comment:

The issues the court considered in finding the omission of the required findings resulted in prejudice these were the same considerations the Supreme Court took up, and rejected, in F.P. v. Monier (2017) 3 Cal.5th 1099. Contrary to Hutchins here, the Supreme Court concluded that a trial court’s omission of required findings was not reversible per se, and that the omission would be reversible only if a different likely would have resulted. In the factual circumstances present in the opinion, that just does not appear to be the case here.

That seems particularly the case where the domestic violence is not based on physical violence or even threats of physical violence. True, the cases hold that “domestic violence” does not require actual physical violence, or even threats, and that abuse is enough, which can include merely disturbing the peace of another. (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 852-853.) But at some point, that definition of “violence” gets rather vague and unlawyerly. And as relevant here, a finding of nonviolent harassment—by way of making whiny phone calls to the other spouse’s employer—does not have any obvious bearing on custody.

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

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

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

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

Standard for terminating sanctions:

“Courts have the inherent authority to dismiss a case as a sanction. [Citation.]” (Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 1271; see also Code Civ. Proc., §§ 128, subd. (a)(4), 581, subd. (m).)

But “dismissal is always a drastic remedy to be employed only in the rarest of circumstances.” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 764.)

“[T]here are two important inquiries to be made by trial courts when determining whether a plaintiff's actions warrant a dismissal with prejudice. First, the court must discern whether the plaintiff's pattern of conduct was so ‘severe [and] deliberate’ as to constitute extreme circumstances. [Citation.] Second, the court must look to see whether alternatives less severe than dismissal are available. The ‘sound exercise of discretion requires the judge to consider and use lesser sanctions’ unless the court's authority cannot possibly be otherwise vindicated. [Citation.]” (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 917.)

The factors here did not establish a pattern of misconduct or the absence of a lesser remedy; thus, terminating sanctions were improper.

The court noted that Harber’s attorney was most at fault for the failure to serve the witness list, and that neglect was not severe or extreme, and there was no indication that it was a tactic. The court also noted that the failure could have been remedied by a trial continuance.

The most interesting of the factors the court identified was the fact that the pre-trial order indicated a “one size fits all” sanction when it stated that “you will not be permitted to call any witnesses not included in the witness statement.” This, the appellate court concluded, indicated the trial court had predetermined it would not consider any lesser sanctions.

“In other words,” the court went on, “the trial court announced, up front, that it would not exercise any discretion. The inherent power to dismiss, however, is a discretionary power. “A trial court's failure to exercise discretion is itself an abuse of discretion. [Citation.]” (Fadeeff v. State Farm General Insurance Co. (2020) 50 Cal.App.5th 94, 104.)”

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

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

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

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

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

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

Peter Prows’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

TRANSCRIPT:

Peter Prows  0:03 
That was an observation that Justice Brennan made in one of the cases I sent you in a dissenting opinion. But yeah, sometimes you can lose the battle and still win the war. That's how easy it is to be a city attorney.

Announcer  0:12 

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 Cole and Jeff Lewis.

Jeff Lewis  0:26
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:28

And I'm Tim Kowal. While this podcast is a resource for trial and appellate attorneys, Jeff and I are both appellate specialists but we split our time about evenly between trial and appellate courts and we tried to give our listeners in each episode some news and perspectives they can use in their practice.

Jeff Lewis  0:44 
And a quick announcement this podcast is sponsored by casetext. casetext is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019, and I highly endorsed the service listeners of our podcast will receive a 25% lifetime discount available if they sign up a casetext.com/CALP that's casetext.com/calp.

Tim Kowal  1:08 
All right, Jeff, and today we are pleased to welcome Peter Prowse to the show. Jeff, I was telling you that what we really needed to entice listeners to come to the show was a really juicy juicy Sequa episode about Seattle environmental law. And so Peter Prowse fits the bill Peter is a Council's public agencies private clients and sovereigns on all manner of water, land use and environmental issues, including neighbor disputes, development permit issues and all the way up to national bet the company federal litigation. Peter is experienced in California's water rights and quality laws, the Clean Water Act and wetlands regulation, the Coastal Act Sequa, of course, and NEPA and the public trust doctrine, real property and the Law of the Sea. He litigates in state and federal trial and appellate courts, including the California Supreme Court and the United States Supreme Court, Peter has been a law clerk to the honorable Charles Brower in his private international arbitration practice in London. And he was a law clerk to the honorable Abdul Koroma of Sierra Leone at the International Court of Justice in the Hague. Peter, welcome to the podcast. Thanks for joining us.

Peter Prows  2:14
Thanks so much for having me, Tim and Jeff.

Tim Kowal  2:16
All right. Well, I have to start at that last one. First, you were a law clerk in the Hague, what is that, like?

Peter Prows  2:21 
The Supreme Court of the world? No, the International Court of Justice is the principal judicial organ of the United Nations. It hears and resolves disputes between member states of the United Nations they typically get there. Well, they all they all have to get there by consent of the parties. And that consent typically comes in the way of dispute resolution provisions and in treaties. So these days, a lot of the cases the International Court of Justice hears our maritime boundary disputes, because the the UN Convention for the law, the sea has a dispute resolution provision that provides consent, least in some cases for the International Court of Justice. And so several of the cases that I worked on, while I was was there were maritime boundary disputes. We also heard a large dispute under the UN Genocide Convention between way involving Serbia. So it was it was an exciting experience. You know, I think the listeners of your podcast would, would find it rather enlightening to listen to oral argument at the International Court of Justice. The council submits their their oral remarks ahead of time and reads from a script. That's oral arguments, the judges, when they ask questions, will submit them in writing to the council and give them a couple of weeks to get back to the court on their responses. There's no sort of live q&a

Tim Kowal  3:42 
of the extreme version of tentative opinions.

Peter Prows  3:45
Yeah, well, it's, you know, it's sort of out of respect for the fact that the parties are sovereign countries, and that, you know, the mere Council mere attorneys don't have the authority to bind bind a country to their responses sort of on the spot. That's the theory anyway, but it leads to fairly dry oral arguments that actually sometimes go on for multiple weeks. There'll be it's it's less of an argument and more of a more of a presentation that will go on for. It can be weeks.

Tim Kowal  4:14 
Yeah, multi day or multi week presentation. So Peter, you're practices in San Francisco, you have clerked at The Hague, you've clerked in London, you are versed in the Law of the Sea. Tell us a little bit about your practice and how all those dots connect.

Peter Prows  4:29 
Well, in law school, I didn't really know what kind of law I wanted to practice. I worked at all of the above all of the above. You know, I worked I went to law school in New York, I had the big firm summer associate experience in New York. I'd done arbitration practice, which I could have gone back to after working in The Hague, but I'd had the opportunity while I was in New York to work for a small island country, Palau at the United Nations and I had a kind of a menu of issue issues that I could have helped advise them on. And the ambassador at the time offered me Law of the Sea. And I thought, well, you know, that's actually an issue that a small island country might find useful to know something about. So I, I learned as much as I could, and ended up negotiating fisheries agreements and maritime boundary issues at the UN and working with, you know, scientists and geologists and biologists. And when I was coming to the end of my my time clerking, and I was reflecting on what I really wanted to practice, there was I was, I came to the realization that I really loved the environmental stuff. You know, I learned something new in every case, I've worked with people who are smarter than me all the time. And I got to meet scientists and really engage in public policy and do public law work in a way that, you know, I'd never be able to do going to sort of a large commercial litigation practice back in New York.

Tim Kowal  5:56 
So you came to it with a with an interest, pre existing interest in policy international issues. Yep. Yeah. Okay. And here's a stupid question, Law of the Sea and maritime law, same thing, or different things, different things.

Peter Prows  6:10
So far, as I can tell, I don't actually know anything about maritime law, maritime law is sort of love of ships and marine commerce. And so you know, you have sailors who slip and fall on a vessel. It's like tort law on the water. Yeah. And it's an old form of law. It's actually one of those one of those creatures of federal common law that we're told don't exist, but actually do exist in some realms. And maritime law is one of them. But it's, but I know nothing about it. Law of the Sea really is where one country ends and the high seas begins, or where another country begins, and what what each country's rights and responsibilities are in the different areas of marine jurisdiction.

Tim Kowal  6:56 
I go off, when I go off on my friend's boat, you can tell me where we can start gambling and doing other things that are otherwise illicit.

Peter Prows  7:04 

You might not like the answers, but yes.

Tim Kowal  7:07 
Okay. All right. Let's see, would you rather be in state court or federal court? You practice everywhere? Where's that you? What are the pros and cons? Were Would you rather be?

Peter Prows  7:16

I think, I mean, I am comfortable in both. If if it's a state court I've been in before, then I probably will say state court. If it's one I haven't been in before then then federal court, Federal Court practice, at least in my experience in the Northern District in the eastern district here in California, is fairly similar, you know, you don't have the local local rules. You filing is all online. So there's, there's no real mystery about how to get something before a judge and get it filed. Whereas in some state courts, it can be can be a real trial and error, to figure out even how to get something filed to get it before the judge, which judge do you end up before? Once you've gone through, you know, having a case in state court, and you kind of figure out how it actually works, then, you know, it tends to be a smaller, more collegial practice. I think when when you know, the judges, and maybe you have some experience with the court clerks and and it tends to go fairly smoothly. So yeah, so if I've been in that court before, I'll say state court, if not, then all else being equal federal court,

Tim Kowal  8:16 
you have a good war story, you can share something that was formative to your practice, maybe something that confirmed that I'm in the right, the right area of law or something, or maybe a story that told you I gotta get far, far away from this kind of situation?

Peter Prows  8:30 

Well, it you know, I was reflecting on that. And I, it actually involves a criminal case I was involved with once I don't do a whole lot of criminal practice. But I've had a few matters where, particularly farmer clients have gotten themselves into trouble. It's harder being a farmer in California than you might think. But I had a client who was an oyster farmer, and there's a there's a statute in the fishing game code that says, you know, you got to fill out a form each year that tells the state where you got your, you know, your oyster bags, and he had oyster bags and three places. And he listed all three on one form. And the warden I guess, thought he should have filled that three forms instead of one form. In any violation, the

Tim Kowal  9:10
fishing game code is a misdemeanor. So you got criminally prosecuted for this or filling out a form the wrong way. Yeah. It's kind of like talking with the with the FBI, you better not make even an innocent misstatement.

Peter Prows  9:22 
So I, you know, my comparative advantage, shall we say, is not in in the criminal courtroom. But I thought, well, you know what, I'm not actually sure this is a crime. So I bet the DA here has never seen a demurrer in a in a criminal case before but it turns out, you can actually demurrer to a misdemeanor complaint. And so I filed a demur, and the judge overruled the demurrer, but then took me in the DA back into chambers, and I'd worked on a fairly high profile case. This isn't Marin County a few years prior, and was representing another Oyster Company and litigation against the National Park Service and when Marion County had gotten involved in that suit. And our judge had had worked in the county counsel's office at the time. And she, you know, after she'd over, she'd ruled against me, she turns to the DA and says, you know who this guy is? He's the oyster lawyer, you don't want to go up against him, do you? And let's just say the case, promptly settled quite favorably, almost immediately thereafter. So sometimes even when you don't feel totally comfortable in one, one area of practice, if you can bring whatever comparative advantage you do have to it, as well as whatever reputation you've you've garnered to that point, you

Tim Kowal  10:29

can thrive. And I feel remiss for not introducing you as the oyster lawyer. All right, well, let's move on from oysters to Sequa. We've not had an attorney on the show to talk about Sequa. before. And I wonder if you tell tell our audience a little something about your work in that area. How much of your work is Sequa? What who are your typical clients? Are they developers? Are they municipalities? Are they the NIMBYs? Who are they?

Peter Prows  10:54
Well, I'd say almost all of my cases involve Sequa. in one form or another. I represent developers, I represent public agencies, water agencies, and I've even represented petitioners who have challenged projects. But anytime you need a discretionary permit from a public agency in California, Sequa is going to be something that you have to think about public agencies when they approve a project have to do Sequa unless some exemption applies. And those exemptions are litigated up, down and sideways. But sequences involved in almost all of an almost every matter I am engaged with,

Jeff Lewis  11:30 

you know, many, many land developers and public agencies grumble about how long it takes to get projects past Sequa to Sequa, in your opinion, unduly slow projects down and and are there any efforts to reform Sequa and make it a little easier to navigate?

Peter Prows  11:46 
Secret itself says that the environmental review process should be done within a year. In my experience, that almost never that goal is almost never met, though I'm involved in a project now, where the permit application went in in March. And we're on track to have EIR certified in November. So I'm trying to break a new record here. And we'll see. We'll see how it goes. And we'll see if we get sued on the project later. Knock on wood.

Tim Kowal  12:13 
So what is the effect of, of this goal of completing the litigation within a year is due Sequa? I think sequel actions get calendar preference, is that right?

Peter Prows  12:22

They do get calendar preference. Yep. The you know, that really, until the Sequa issues are resolved. It's hard to proceed with the project. And you know, those I think those goals are really intended to recognize that this process isn't supposed to take forever, there is supposed to be finality to it. And you know, that's part of the reason why there are such short statutes of limitations and Sequa actions, sometimes the shortest 30 or 35 days, right, which the California Supreme Court has been pretty strict in in applying. So yeah, that we are supposed to get through Sequa and get past Sequa. It's not supposed to be the be all and end all of the land use entitlement process, though. I have other projects where it's taken five years or more. And then there are lawsuits and then, you know, those can drag on for a while as well. So yeah, the legislature in recent years has enacted a number of, of bills to streamline the sequel process or exempt certain projects from it entirely.

Tim Kowal  13:17 
What types of reforms are are on the table, a lot of them involve

Peter Prows  13:21 

infill projects in urban areas where the project meets the pre existing general plan and zoning. So essentially, if you if you if you already qualify under the city's requirements, then there really shouldn't be further SQL review that these these projects qualify for streamlined ministerial is the word that the statutes use approval. And when this would mean

Tim Kowal  13:45 
that that these infill projects would not have to go through the entire panoply of Sequa procedures.

Peter Prows  13:52 

That's That's right. They they actually are exempt from Sequa entirely. And there are certain concessions in those in that legislation to requiring certain percentage of affordable housing to be built as part of the project and often project labor agreements, meaning you've got to you got to pay union wages for those kinds of jobs. And so there's some question about how economic those those projects are once once those once those components are built into them. But if if you don't have to do SQL and you can get through the process in a reasonable period of time, that's a that's a major incentive for developers to try to find a way to fit in those boxes

Tim Kowal  14:26
are a large number of the sequel cases. Do they fit into that criteria of these infill projects, they're starting to

Peter Prows  14:33
I think the, you know, these these pieces of legislation that are really starting to be used more these days are maybe only four or five years old, and they're they're just starting to get into the litigation mode now over over approval approvals that have been given. So you know, we will we will see where the courts go with this legislation. I mean, I suspect we're gonna see more and more carve outs from Sequa as I

Jeff Lewis  14:58
had I had a sequel case I I don't do too much. But I had a sequel case where, at the time of filing, it was a very righteous Sequa case. And that about 30 days before trial, Sacramento, amended Sequa to basically exempt the project I was challenging from Sequa. brutal, brutal, those exemptions so they come fast.

Peter Prows  15:19
Well, and, you know, that's one of the one of the challenges to have administrative mandamus practices as any appellate litigation really is, you know, there's got to be prejudicial error. And if, if the law changes underneath, you know, the courts will will tend to apply the law as it exists when they make their decision, not not what it was when you filed your lawsuit.

Jeff Lewis  15:38 
Yeah, let me ask you this. I've never been involved in a sequel case that dealt with tribal cultural resource preservation, have you and tell us a little bit about the interaction between those two, I guess, policy goals?

Peter Prows  15:51 

Yeah, this is a really interesting area that I've got a couple projects now involving tribal cultural resources, matters. And this all stems out of a legislation, a B 52. That was passed, I don't know the date, maybe five or 10 years ago now that in the sequel process, lead agency, and that's the that's the secret term for the public agency that kind of takes the lead on the secret document, and typically tends to be the agency that's in the lead on approving the project. So if it's a housing project, it's the city or the county, the project is in, has to go to the state and ask, Hey, are there any state recognized tribes that are interested in projects in this area, and then they get a list back from the state and then the the lead agency contacts each of those tribes that are on the list and says, Hey, are you interested in this project, you have concerns about this project? And if any of the tribes come back and say yes, then the the lead agency essentially has to engage in what tantamount to government to government negotiations with that tribe to try to come to an agreement over how to identify and then mitigate whatever tribal cultural resources there might be. So it's really a new category of environmental impact in California, as we come to kind of grapple with the state's history of kind of running roughshod over the native people here,

Jeff Lewis  17:16 
what type of interest or resource would be give us some examples of some of the back and forth or the interests? Yeah,

Peter Prows  17:23 
you can have, you know, the the kind of most dramatic example is if there is concern about whether there's, you know, tribal burial site there, or tribal village site on the on the project site, and that can raise a whole host of issues of, you know, how to deal with human remains, and how to appropriately respect, you know, the burials there and whether you just kept remains in place or whether they should be transported somewhere else. So those can be the subject of some very sensitive negotiations.

Tim Kowal  17:53
Are there any is there any interplay with the federal constitution, you know, the Article One, Section Eight gives plenary power to the Congress to regulate commerce with the tribes. I don't know if that if it prevents the states from doing this sort of thing, where it where it's giving, giving kind of first right of refusal to certain projects to tribes in the area.

Peter Prows  18:14 
You know, I haven't seen that come up. And the federal government has its own separate list of of the tribes that the federal government recognizes, and often the federal lists and the state lists don't don't match. So, you know, I've never seen a case where there might be a conflict between what the state or local government might want to see done with the tribe and what the federal government might have deemed appropriate under under the federal constitution is an interesting question. I haven't seen it come up.

Tim Kowal  18:41
Alright, let's talk about a recent case. This is actually the case that piqued my interest in talking about Sequa its Tiburon, open space community versus County of Marin. It's back in. It was issued in May of this year. 2012. Out of the First District Court of Appeal, just the thumbnail sketch of it is Tiburon. The Tiburon case involved a development project that that was slated due to be built atop a mountain that was overlooking San Francisco Bay, so apparently had just majestic views. There only some 4046 or so suburban single family homes that were slated to be built there that were that the developer wanted to build there. For many years, the permitting attempts have gone on neighboring residents hated the idea, and so they pose the project vigorously. In the course of decades of litigation, the county stipulated to a judgment and ultimately the county took the position that that judgment tied its hands and required it to issue the development permits. The neighbors contested this on appeal and argued that the county's position violated the fundamental principle that a sovereign cannot negotiate its own sovereignty and that by taking the position that its hands were tied, the county basically abused its discretion, delegated its sovereign powers to the developer and in such a in such manner He baited the requirements of Sequa Court of Appeals rejected the argument said no, it the county didn't evaded Sequa obligations. And I wonder if Peter, can you elaborate on that? Did I simplify it too much? And what's what was really at stake here? Because coming up in a minute, I want to read some of there's some interesting quotes that are critical of Sequa. And I wondered if this was, if this was usual, this kind of a run of the mill Sequa. Court of Appeal opinion, what is noteworthy in this case? In your view, Peter?

Peter Prows  20:30
Well, I'll say first of all, this is this is one of the interesting sequel cases, there are a sequence of procedural statute, and there are a million rules and Sequa, both for lead agencies and for petitioners. And so when you got a procedural statute like that, with a lot of tripwires on both sides, you get a lot of court cases that by and large turn on kind of not very interesting procedural rules, at least in my opinion, but this this is a this is a more interesting one, I think, because you get this interesting interplay between these these federal stipulated court judgments, which the the county and the Court of Appeal thought constrained the county's discretion and required the county to approve, I think it was 47 houses on a along a ridge line. And, you know, the usual rule under Sequa, that, you know, lead agencies ought to evaluate the environmental impacts up down and sideways of a project like this. So but I, you know, I think the Court of Appeal got this one, right, for the kind of simple reason that Sequa, as I mentioned earlier, applies to discretionary decisions. And here, you know, I don't think there was any suggestion that there was a collusive stipulated judgment here. In fact, the county opposed the underlying federal court case pretty vigorously when it was filed. But there nevertheless was a federal court judgment that required the county to approve this project. And so there really, there really was not much to be done under Sequa. There was a EIR done, I guess. But, you know, in terms of what the county could or might have been able to do differently as a result of that environmental review, its hands were tied and had to approve this project. So, you know, I think the court got this one, right.

Tim Kowal  22:08
Yeah, there was, as I mentioned, there were a couple of passages in the opinion that I thought were quite vivid. And I want to read a couple of them to the audience. The first one is provide just kind of a nice thumbnail sketch of what Sequa is, and what its purpose is. The court quotes the late Presiding Justice David sills, who was my former boss, when I was an external Court of Appeal down here in Santa Ana, that Sequa, quote, provides protections to expose elected decision makers to the political consequences of any decision to certify an EIR, there is a sort of grand design and Sequa projects, which significantly affect the environment can go forward, but only after the elected decision makers have their noses rubbed in those environmental effects and vote to go forward anyway, and quote, what do you think, Peter? Is that? Is that a fair? If pithy summation of what sequel is,

Peter Prows  23:01
I think it's a great summation. It I'm not sure quite how much it applies in this case. But that's the idea. It's, it's, you know, it's it's to kind of educate the decision makers in the public about every aspect of a project and secret doesn't constrain the lead agencies actual decision making, it just puts all the cards on the table. And if they want to nevertheless, proceed with the project. That's okay. SQL doesn't doesn't stop a lead agency from doing that it doesn't doesn't constrain their discretion, they've just got to jump through the 1000 procedural hurdles to get to that approval. And then, you know, decision makers, they live with the consequences of their decision that that's politics, and you know, they can, if they're proud of the decision they make, they can they can run on it, if they want to hide from it, well, then their, you know, their opponents can can highlight it for the public. But that's, you know, that's democracy in action. That's, that's the theory. In this case, you know, the county had to approve this project in the sense that it had to agree to a settlement. And so there was at least some public airing of what the project would be and some opportunity I imagined for the public to weigh in on that point. But there wasn't the usual opportunity to rub the decision makers noses in the environmental consequences of the decision. And what the petitioners probably should have done here was tried to intervene in the federal case, the time that settlement was approved. And if they, you know, wanted to ask the federal court to try to build into that settlement to, you know, an oh, by the way, there should still be a secret process that county should have to go through and if they want an out of from approving the project at that point at the end of that process, then build that into the stipulated judgment. But, you know, once once that judgment was entered, the county's hands really retired otherwise, it'd be in contempt if you didn't approve this project.

Tim Kowal  24:50 

All right. And then here is the the conclusion of the court's opinion and it It's entitled some concluding observations. And so when I saw Those words when I first scan this case, I knew that we that we're going to have to talk about this. So here's what caught my attention in the first place. The in the concluding observations, the court makes reference to justice Chin's opinion in the, in the California Supreme Court's opinion Center for Biological Diversity versus Department of Fish and Wildlife. And, in the opinion states that Justice chin had concluded with a warning worthy of Cassandra, quote, we have caution that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic or recreational development and advancement. And then the opinion goes on. And it's concluding observations that every member of the Supreme Court agreed that that quote, Sequa is not intended as a population control measure and quote, and then finally, delay can become its own reward for Project opponents. This is a recipe for paralysis, but Sequa is not meant to cause paralysis. And then, and then notes that this case vindicates some of the worst of justice Chin's fears, and SQL was meant to serve noble purposes, but it can be manipulated to be a formidable tool of obstruction, particularly against proposed projects that will increase housing density, something is very wrong with this picture is how the court concludes it. Peter, is this tone representative? You think of how a lot of Court of Appeal justices view Sequa? This seems extraordinarily critical and seems to be kind of dipping a toe it's, you know, sometimes you see these opinions concluding we urge the legislator to take this up is this kind of an implicit call that the legislature needs to do something about Sequa?

Peter Prows  26:40 

I think there's been a real change in tone and a number of SQL cases by the Court of Appeal in in recent years. And I've seen a several cases where, you know, in the 60s 70s 80s 90s, you know, you see the first half of the legal discussion being all about SQL was meant to protect the environment. And now you see a lot more of this kind of language that you know, SQL is not meant to be the end all be all, and there are other values that are important and, you know, it housing costs being what they are in California and essentially the number one concern of of Californians, it's not surprising that the courts are maybe taking a more critical eye towards what are we really what are we really doing here?

Tim Kowal  27:23 

Yeah, there was also around the same time that the Tiburon opinion came down there was this article written by Matt Taibbi about Sequa and Matt Taibbi is a he's a former Rolling Stone essayist or writer. Now he's got his own blog at substack. But he wrote an article called The lawyers who ate California, and it talks about various types of what he sees to be over regulation. But here's what he wrote about Sequa. Specifically, this is Matt Taibbi multiple other businesses that multiple other business figures cited Sequa the California Environmental Quality Act, which accomplished good things at its inception in 1970, but has since seen exponential to cancerous growth, making home construction massively more expensive, and pushing companies to relocate workforces to locales with more available housing. It was intended to modernize residential building, but Sequa to sum has instead become a backdoor subsidy to owners of the state's stagnant pool of mid century homes, mandating so many lengthy reviews and conditions that petitioners can NIMBY projects and neighborhood projects to death and kill even environmentally friendly projects like back bike paths and public transport. Even progressives have begun to feel empowered to openly hate on this statute. Democratic State Senator Scott wiener called it, quote the law that swallowed California and quote, so I wondered if if you are seeing these kinds of sentiments again, Sequa, you would think is, you know, all environmentalists would would love Sequa because it's it's meant to provide environmentally friendly neighborhoods, but it's, it can be used to, to obstruct just that objective.

Peter Prows  29:05 
It can cost hundreds of 1000s of dollars for for for any kind of developer to to fund any IR not even, you know, counting the the mitigation measures that the EIR measure will require, you know, I, I think part of the problem is that, you know, local agencies, there's sort of no end to the process, you know, they have to do sequel when they amend their general plans or amend their zoning. And then, and then at the individual project level, developers have to do Sequa all over again, and it would make much more sense I think, if you if local agencies when they were doing their large planning documents, we went through sequel once we we all decide here's where housing is going to go, here's where the transit is going to go, here's the open space is going to be and then let people essentially buy right build in the places that are designated in the general plan to build and not build where, where the, you know, overriding planning documents say we shouldn't be building and not have to go through multiple sequence again and again and again. And I think that's actually a lot of the spirit of Senator wieners legislation. And a lot of the legislation we talked about earlier kind of comes from him that that essentially if you if you qualify, under the General Plan and the zoning, then you get ministerial approval, this matter has already been studied and resolved and we don't need to study it again, just because now we're at the individual project level.

Tim Kowal  30:25
Do you see? Do you see these Sequa issues and arguments as having a certain political bent to them the Tiburon case and involved a development involving single family homes, but a lot of SQL litigation is or Sequa based objections are our neighborhood objections to high density developments. And so I wonder if, you know, sometimes you could see that as being, you know, either side of the political spectrum, there's some left of center who would like to see more high density built, and then more more conservative type or just unnecessarily political concern. I guess anyone who owns a home would would like to see their property values maintain or increase. So is there a political angle to this? Or does everyone agree that reform needs to be made here?

Peter Prows  31:06
Well, I you know, I don't I don't know what everybody thinks. But there are, you know, there's this there's this classic clash these days in California between the NIMBYs in the NIMBYs the not in my backyard and the yes, in my backyard groups. And, you know, when you get down to local politics, all politics is local. And sometimes, you know, people who might identify as, as progressives, like in Marin County, it's a it's a very liberal voting anyway, community. But you know, here we're talking about 47 homes and the Tiburon case that engendered years and years and years of litigation and multiple, you know, multiple lawsuits. And so I don't know whether it's, you know, whether there's a difference between single family homes and multifamily housing, I've certainly dealt with litigation and entitlement work over both kinds of projects, and they have different issues, single family homes, often, you know, they require they require more development footprint. And when you're building in more green space or open space, then then you can have greater impacts to species to wetlands, than you would if the development was concentrated, especially this concentrated in infill, you know, existing neighborhoods. But you know, I don't I don't know that there's a traditional political bent that these groups fall into, it's very local.

Tim Kowal 32:19 
Is there more energy in favor of building high density than the lower density? And I guess my energy? I mean, I would guess that there's, there's more, I'll tell you, from my perspective, you know, I mean, I've got young children, I need to I need a home with a yard, you know, living on top of the of a barber shop, or a liquor store is not going to cut it for me. So the high density thing doesn't, doesn't excite me when I hear about high density in my neighborhood, or my community. I want to I want to see more, more single family homes, but we're pretty built out. But I wonder if, if there are developers who haven't we still have a lot of open space in California. But I don't know that I hear about too many single family developments going on. It's all all the all the talk and energy seems to be in infill high density development.

Peter Prows  33:04
Yeah, I think, I mean, I've got a project right now in Vacaville, where there's a mix, you know, we've got single family homes, and then you've got multifamily apartment and condo buildings. And, you know, it really i It really comes down to, you know, what the developer thinks the market will support. And there is there is a range of demand for housing, depending on where people are in their lives, I think and, you know, when I was in my 20s, living in an apartment, having an affordable apartment to live in, in New York, or you know, even out here in the Bay Area was, you know, something I needed. And there is a large group of people that that need that kind of housing. But that doesn't work for everybody, obviously. And you know, there should be there should be supply of housing that meets everybody's needs

Jeff Lewis  33:48
a Peter up, I think our audience would be disappointed if I didn't slip in at least one anti slap question. You pointed me out to the fact that sometimes anti slap motions can be brought by public agencies against writ petitioners. And he pointed me to the Vargas versus City of Salinas case which I had not read before. It's really interesting that when a citizen complains about something the government is doing, the government can procedurally attack the complaint as an abridgment of the of the government's first amendment rights. And I want to ask, does it make sense to you that the government is a person protected by the First Amendment within the meaning of the anti slap law?

Peter Prows 34:27
Well, the California Supreme Court has said so but I think it makes no sense. You know, the First Amendment was designed as a limitation on the government's ability to restrict the speech of individuals, particularly individuals who complain about the government activity and to protect petitioning activity by by individuals against the government. And I've, you know, I've seen cases where I've brought petitions against public agencies, and they've responded with anti slap motions, which as you both know, are very powerful tools, oftentimes quite righteous but can really make it hard for a petition Shinar to ever see their day in court at least in a timely way. Because they they bring the proceedings to a halt. By and large, they're subject to immediate appeal, whether you win or lose the motion and it the fact that public agencies in California, the California Supreme Court has said can bring anti slap motions against people trying to petition the government for the redress of grievance makes absolutely no sense to me.

Jeff Lewis  35:23
I tend to agree unless unless it's the pure case where the lawsuit is filed as a result of a public official speech, an individual public officials sued. That might be the case where yeah, you have a righteous anti slap motion. But I tend to agree because there is the potential for for a chilling effect on people's willingness to even risk and anti slap attorneys fee award by filing a simple repetition.

Tim Kowal  35:49
Yeah, seems to be one of those situations where the distinction matters where they say, individuals have rights, governments have powers. Government doesn't have a First Amendment right government just wield the big stick, doesn't get to use use the Constitution against the people. That's an interesting case. Peter, do you know, has there been any movement in that doctrine, this case that Jeff mentioned, Vargas versus City of Salinas was back in 2009. So that's, you know, 13 years ago, you notice, is there any any trend on that or any decisions following that one way or the other?

Peter Prows  36:24
There was a more recent decision, boy, and I've got to this makes for bad radio. But there wasn't more recent decision by the California Supreme Court that I believe it was a labor dispute involving a university where the university the petition was really attacking the actual decision of the university and not any speech and the California Supreme Court said, Look at decision, a public decision is not not speech protected by the anti slap statute. And that struck me as correct. And give me just a moment. I'm sure I can find the case.

Tim Kowal  36:55
Yeah, well, you can look for that. In the meantime, I wanted to ask you about there was another case that you had, you had told me about, and it has to do with administrative mandamus. And this can be, you know, in the abstract sound just as exciting as SQL law. But this has a real punch line to it. So here imagine you have a citizen who is unhappy with an action by the city, maybe there's a city ordinance that, you know, deprive someone of his property, or liberty, or it's or it's unconstitutionally vague. Now, your remedy is to file a petition for writ of mandamus in the Superior Court. But Peter, you'd pointed out to me that the citizens remedy even if he if he wins and gets the remedy, he prays for that mandamus case mandamus remedy may be illusory. What do you mean by that?

Jeff Lewis  37:38 
Well,

Peter Prows  37:39
unlike in the courts of appeal, where you can get a remand with directions where the Court of Appeal tells the trial court All right, here's how you need to rule on remand, you never get that in almost never get that in a writ of mandamus, administrative mandamus case, the courts are very careful. And I think this goes back to sort of separations of powers concerns. You know, the courts are one branch of government and administrative agencies come from another branch of government and the courts are reluctant to tell the other branch of government what to do. So the the almost universal remedy is simply just to vacate the decision and send it back. And that gives the the the agency just another crack at the whole thing. And if the legal challenges, for example, you didn't make the appropriate findings, well, they just go back and they rewrite the rewrite the decision and make the finding, and you're you're right back where you started. So it's very easy to win a battle but lose a war, if you're not really careful and in what the claims you're bringing are. And whether, you know, as a practical matter, there's there's it becomes difficult for the for the agency to rule against you again on remand, but there's there's very little to stop them from from trying. And yeah, that that was an observation that Justice Brennan made in one of the cases I sent you in, in a dissenting opinion. But yeah, sometimes you can lose the battle and still win the war. That's how easy it is to be a city attorney. And that's right. I've only succeeded once in in getting a remand with directions. And that was in a coastal commission case. We were challenging a permit condition, a public access permit condition, which which in our view went against the terms of of a judgment or prior judgment that required this bridge of our clients to be kept private and not open to the public. And there is a severability clause in the Coastal Act. And we said, look, this, this clause allows you to sever invalid provisions and leave the rest in effect in the Court of Appeal, unfortunately, in an unpublished decision, agreed with me and and remanded with directions, but that's the only time I've ever seen it happen. It's quite rare. So, you know, you've got to, if you're bringing a writ case and you're advising a client, I'd say, you know, you don't want to bring a claim that's easy for the agency to fix because you may just be wasting your your clients time and money. Yeah. Why don't you want to prevail on a claim that might have a real chance of constraining their discretion next time around?

Tim Kowal  39:54
Well, Peter, when you you emailed me with this case, you'd quoted this this line, see how easy deserves to be a city attorney. Sometimes you can lose the battle and still win the war. And and when you in your email when you quoted that to me you had a case after it Justice Brennan dissenting. I thought that can't really be in a Supreme Court decision, even a dissenting one, but I looked it up and lo and behold, here's here's what it says Justice Brennan, in a footnote, he's quoting justice Brennan's quoting a city attorney, giving this advice at a conference of the National Institute of municipal law officers in California, the quote is here. Here's the heading of of this advice by a city attorney if all else fails, merely amend the regulation and start over again, if legal preventative maintenance does not work, and you still receive a claim attacking the land use regulation. Or if you try the case and lose, don't worry about it all is not lost. One of the extra goodies contained in the recent California Supreme Court case of Selby versus City of San Juan of Ventura appears to allow the city to change the regulation in question, even after trial and judgment, make it more reasonable, more restrictive, or whatever. And everyone starts all over again, see how easy it is to be a city attorney. Sometimes you can lose the battle and still win the war. Good luck and gloat. So that's the that's the footnote from Justice Brennan in San Diego Gas and Electric Company versus City of San Diego. How glib and cynical it is. Now this this opinion was back in 1981. Peter, do you have any idea whether this this attitude persists? Well, I among city attorneys

Peter Prows  41:32
I well, I don't what I would say is city attorneys are looking for ways to protect their their clients, just as everyone else is I'm trying to be diplomatic here. But you know, mandamus it's an equitable remedy. And even if you even if even if a public agency loses in the trial court and takes the matter up on appeal, if they then amend the regulation, even while the appeal is pending, the Court of Appeal is likely to say that that that's going to moot the appeal. And that's a special power that a public agency has because it has lawmaking an adjudicatory powers that private parties often don't. And if the trial court has identified a problem in your in your decision, and you have the power to fix it, and maybe save some some litigation exposure and uncertainty, then it doesn't at all surprise me that good city attorneys might advise their clients to be proactive.

Tim Kowal  42:22
Well, you mentioned this goes back to a to a separation of powers concern on the part of judges. They don't want to they have to review the petition in front of them, but they don't want to cross the line into telling city legislators, you know, City Council's you know, sovereigns how to do their job. Do you think they strike the right balance? You mentioned that, you know, sometimes they do Issue? Issue remand with directions? Do you think they strike the right balance in holding back in the majority of cases in your experience?

Peter Prows 42:50 

Well, it's interesting to contrast this attitude with what we saw in the in the MYRIN the Tiburon case where you actually did have a federal stipulated judgment, but nevertheless, the judge signed it. And, you know, maybe it was because the the county in that case, at the time, thought that that was the right resolution. And so the court was less reluctant to be seen to be telling another branch of government what to do. But I think it's, it tends to be good practice in cases where a public agency is involved to try to get a stipulated judgment where you get a court order at the end of the day, rather than just a settlement and a dismissal because City Council's change, and but you know, federal court order is for phase forever, sometimes.

Tim Kowal  43:34 
Yeah, there you go. Yeah, that's one of the other doctrines is that city councils cannot bind future city councils.

Peter Prows 43:40
Yeah, but you know that that is certainly limited when it comes to a city council. This decision then gets the force of a judgment behind it. Arise judicata can can be even more powerful sometimes. All right,

Tim Kowal  43:52 
well, Jeff, should we should we move on to the lightning round?

Jeff Lewis  43:58 
Sure. It's been a long time. But uh, Peter looks like he's well rested and ready to, to face the music. This is the time for our patented corporate copyrighted segment. That answers the most pressing questions that Vex appellate nerds around the world short responses, one sentence when you can let us know what is your font preference century school book garmont or something else?

Peter Prows  44:20
In letters? I use Palatino. In appellate briefs, I use century school book.

Jeff Lewis  44:27 
Very good. Very good. I think I know the answer, but two spaces or one,

Peter Prows  44:31 
two spaces. I'm sorry, guys.

Jeff Lewis  44:33 

Yeah, very good.

Tim Kowal  44:34 
Now that's filing already ribeye

Jeff Lewis  44:38 

Superior Court or superior court. Do you capitalize the s&c in superior court?

Peter Prows  44:43

I do is I mean, especially if I'm talking to that Superior Court, yes.

Jeff Lewis 44:48 
All right.

Tim Kowal  44:49 
Let me go back real quick, Peter to do the two spaces. I can't leave it alone. Is that answer informed by your international experience at the Hey began in London and elsewhere.

Peter Prows  45:01 

No, I bet but maybe it's informed by the fact that I've had to wear glasses since I was five or six and have a harder time seeing sentence breaks where there's only one space rather than two. So it's purely a help the reader meet meaning myself and my bad eyes. concession

Tim Kowal  45:17 

that I award that a valid exempt vacation.

Jeff Lewis  45:22
All right, do you put a table of contents entry in your table of contents?

Peter Prows  45:26

I don't, though, I had this discussion last week with one of my other partners, who does put it in there. And maybe I'll change but I think it's a little silly. I guess it's required by the rules, I'm told, but, and I like to comply with the rules, I might need to have a brief kicked. Sorry, I'm violating your one sentence rule. But that's okay.

Jeff Lewis  45:46 
Now, this is strange. Now we're just it's the bog down swamp around instead of lightning

Peter Prows  45:52 
round. So so far, I've gotten away with it without leaving it out. So

Jeff Lewis  45:57

all right, and when you are have headings in your briefs, all caps, initial caps or sentence case,

Peter Prows  46:04 
you know, I, I now do sentence case, at least for the sort of second level headings. And I think you guys have have turned me around on that, or maybe some of your other guests have, but I think it's your eyes. Yeah, it's much easier on the eyes. And I think it's another way to persuade your reader or explain to your reader what your arguments are, if you use a full sentence in a font that people can actually read. Yeah,

Tim Kowal  46:27 
yeah, the title case has come to jump out the page at me and just strike me as extraordinarily offensive now.

Jeff Lewis  46:36 

Calm down to And final question after major headings in your briefs? Do you start the next section on a new page or you continue immediately below? It depends.

Peter Prows  46:47 

It depends. If I'm sort of maybe more than halfway down the page, then I'll start it on the New page. If there's only a few lines to wrap up the previous section, then I'll probably keep it on the same page. But I don't have a strong opinion about that

Tim Kowal  47:03
one than a new one. Jeff, what's your practice?

Jeff Lewis  47:06 
You know, they don't charge you for whitespace. Tim, I'm a big fan of using as much white space as you can

Peter Prows 47:10
in Trump in trial court briefs, where your page limited, you wouldn't go into the next page.

Tim Kowal  47:16 

That's costly and trial court,

Jeff Lewis  47:17 
there's always room to trim words always work and whitespace really is undervalued, I think in terms of making it readability. Alright, well,

Peter Prows  47:26
I put the I don't know how often you guys put pictures in your briefs, but I, I use them more and more these days. I think, you know, they are worth 1000 words. But they do take up some space. But boy, can they be powerful? Absolutely.

Jeff Lewis  47:40 

Yeah. I love a look, I think I mentioned this podcast before, but I'll say it again, when the Supreme Court ruled about prayer on the 50 yard line. And what was happening at the 50 yard line at football games. Sotomayor had not two but three I think photos of what was happening. And those photographs were really powerful presentation about what what's going on. All right, I violated my own rules about the lightning round. You've survived the dreaded lightning round. And one day we'll send you a cup or mug or a t shirt when we have such mugs or T shirts or do it.

Tim Kowal  48:12 
Alright, Jeff, I think we just had a couple of couple of tidbits we wanted to share with the audience. Yeah, there's one there's one I found about frivolous motions. And when I advise attorneys, these are frivolous motions for reconsideration specifically. Now when I advise attorneys and clients about whether to file a motion for reconsideration, I've come to feel like I'm in a no win situation. Because on the one hand, even if you have no new facts, and no new law, and even if you've blown your your window and filed the motion for reconsideration, the California Supreme Court and brown Winfield and Ken zeroni has held that that doesn't prevent the trial judge from reconsidering anyway, quote, it should not matter whether the judge has an unprovoked flash of understanding in the middle of the night or acts in response to a party suggestion. So on the one hand, I'll say sure filed a motion for reconsideration. What can it hurt, but here's how it can hurt. On the other hand, if a motion for reconsideration is meritless, frivolous or filed in bad faith, the trial court may order sanctions against the movement under Section 120 8.7. That is what happened in banks versus pronounced that master raucous that's out of the second district, second division. It's an unpublished case, but they're a lower court imposed a $960 sanction against plaintiff for bringing a frivolous motion for reconsideration after an adverse summary grant, a result affirmed on appeal because the reconsideration motion did not mention any new facts and cited improper statutes and ordinances. Now, so this, this goes really undermines my original advice that maybe just file the motion for reconsideration because maybe the judge will just have a flash of new understanding that it got it wrong the first time. I would guess, Jeff, that most motions for reconsideration probably are technically invalid for one reason or another. Mostly they're just filed in hopes of getting the judge to have that flash of new understanding that the ruling was wrong the first time but the banks versus master raucous cases. reminder of the risks of sanctions for bringing an invalid motion for reconsideration.

Jeff Lewis  50:05
Yeah, motions for reconsideration are usually filed when a lawyer doesn't have good client control and can't take the loss.

Peter Prows  50:12

My first one granted actually not not too long ago. I stand corrected. All right. But it was it was it was a it was a posture where we had a TR o denied in state court. And then and then one in a federal related pending federal action in the ninth circuit, we want to stay of the judgment pending appeal. And and we want it within the 10 days. So we weren't out of time. And we brought that to the trial court's attention and the trial courts, and yet that's a new fact. And so I'm reconsidering this denial. And it was it was the right result. But I was still pretty surprised that it actually is possible to to win one of those motions.

Tim Kowal  50:49 
But if you're one of those safe harbor letters served on you gotta take it very seriously now. Yeah.

Jeff Lewis  50:53 
Yeah. Interesting. All right. And I want to bring to attention one issue that's happening down here in LA. Tim, when I first started practicing law, you show up to court, there's always a court reporter there. And then a few years back because of budget cuts, they started taking away all our civil reporters. So in civil matters, you didn't have court reporters, but you still had them in family law courts, probate courts and writs and receivers. Well, no more in LA County. They've just announced no more court reporters will be automatically provided for family law, probate and writs and receivers. So lawyers practicing those courtrooms in LA Superior Court need to bring their own reporter.

Tim Kowal  51:31 
Yeah, that's got to be tough. There has been a shrinkage in the availability of court reporters. I'm not sure what that goes to. But maybe we can all do some sleuthing and see if we could bring our audience some more information about that.

Jeff Lewis  51:45 

That will include a link to the Southern California pellet news blog, Ben Schatz actually posted a story about this and indicated it's really a shortage of reporters. It's not even a pay issue. It's just they can't they don't have the bodies. Yeah, it'd be a shame when following the absence of these reporters when there's appeals and appellate lawyers like us start doing motions for settled statements, and the courts get bogged down with having to revisit all of these disputed matters. I suspect a solution to the reporter shortage will manifest itself.

Peter Prows  52:18 
I love a good court reporter. Every deposition I'm involved with I always at the end of it, asked the court reporter Hey, what do you think of this witness? You know, because they were witnesses that I have. And I if you can, if you can pigeonhole the court reporter at the end of a deposition and get their take, I find that can be sometimes pretty valuable.

Tim Kowal  52:39 
Yeah, it's funny. All right, Jeff, do you have you got one about one more about slap motions? I'm gonna, I'm gonna save this, this retroactivity and the three strikes law to a future episode.

Jeff Lewis  52:51 
Okay. Yeah. Then the final point we'll bring and then we'll conclude is, it's long been the case in the ninth circuit that the Ninth Circuit's allowed anti slap motions to be heard in federal district courts. And on August 30 2022, a three judge panel rejected yet another challenge to this rule the cases core civic versus candid group. And it'll be interesting to see if this decision is there's a petition to hear this on bonk because I've I've read dissenting opinions and seen writings where a lot of Ninth Circuit judges are not happy to have anti slap motion is heard in the ninth circuit. So I would be shocked if there's not a petition to hear this on. Bonk. So that was it for me for tidbits, Tim.

Tim Kowal  53:31 
All right. Well, sounds good. So that wraps up this episode. And again, we want to thank casetext for sponsoring the podcast each week when we include links to the cases we discussed, we use casetext for our cases and listeners of the podcast can find a 25% discount available to them if they sign up at casetext.com/CALP. And if you have suggestions for future episodes, please email us at info at Cal podcast.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  54:03 
Yeah, email us if you're a maritime lawyer, you want to come on the show and explain what maritime law is See you next time.

Tim Kowal  54:09 
Thanks again, Peter, for joining us both.

Announcer  54:11 

You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a 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 ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

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

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

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

Watch the clip here.

This is a clip from episode 30 of the California Appellate Law Podcast. The full episode is available 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.

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

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

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

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

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

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

Is a Timely Notice of Appeal Really an Absolute Jurisdictional Prerequisite?

Writing for the panel, Justice Bedsworth made a few interesting observations about the official line that a timely notice of appeal is an absolute jurisdictional prerequisite.

First, Justice Bedsworth noted that “It has sometimes been suggested that “the time limit on filing a notice of appeal is only as jurisdictional as we want it to be. No constitutional provision, statute, or rule declares the limit to be jurisdictional.”” (Quoting Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677 [dis. opn. of Tobriner, J.]; see also Bowles v. Russell (2008) 551 U.S. 205, 215-223 [dis. opn. of Souter, J. [criticizing 5-4 majority's use of supposed “jurisdictional” rule to unfairly disallow an untimely appeal].) What does the court make of this cynicism? Does Justice Bedsworth come to the defense of the “jurisdictional” camp? Not exactly. Here is Justice Bedsworth’s response to this criticism: “This court, of course, is bound by the majority opinion in Hollister and similar cases. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)” The court will enforce the rule, but the court declines to defend the butch characterization of it.

For one thing, there are several exceptions to the requirement of a timely notice of appeal. Justice Bedsworth rehearses several of them, including that untimely appeals may be excused for reasons of “ineffective assistance of counsel” in criminal and juvenile appeals (see here), or because a prison guard fails to timely remit a prisoner’s notice of appeal (Silverbrand v. Cty. of Los Angeles (2009) 46 Cal.4th 106, 109), or when the clerk does not “receive” the notice of appeal until after the deadline (see here).

(Justice Bedsworth also notes that the very concept of an “exception” to a jurisdictional rule is anathema to those who regard the rule as truly jurisdictional, because a jurisdictional rule does not have exceptions: “Resistance to the notion that there are “exceptions” is perhaps attributed to an understanding that “exceptions” would undermine the concept of a mandatory, jurisdictional, and absolute rule.”)

Nor is an appeal from an appealable order even a prerequisite, as premature appeals are often “saved,” resulting in appeals decided without a valid notice of appeal ever having been filed. (See here.)

All this leads Justice Bedsworth to footnote: “Reminiscent of Voltaire's quip concerning the Holy Roman Empire, the need for a timely notice of appeal is neither “absolute,” nor “jurisdictional,” nor a “prerequisite” — at least not in areas cordoned off from the draconian features of the general rule.””

Relief is available where a notice of appeal is filed untimely due to a failure in the e-filing process.

As relevant to Garg, there are two Rules of Court that may help appellants who have failed to file a timely notice of appeal owing to problems with the e-filing system.

The narrower rule is California Rules of Court, rule 2.259(c). Rule 2.259(c) states: “If a technical problem with a court's electronic filing system prevents the court from accepting an electronic filing on a particular court day, and the electronic filer demonstrates that he or she attempted to electronically file the document on that day, the court must deem the document as filed on that day. This subdivision does not apply to the filing of a complaint or any other initial pleading in an action or proceeding.”

Here, rule 2.259(c) was not raised. But the court noted that rule 2.259(c) appears to be “merely a specific application — or slight extension — of the general rule that documents are deemed filed upon receipt…. Construed in this manner, rule 2.259(c) expands the definition of receipt to include situations in which technical problems with the court's electronic filing system prevents the clerks from accepting the document for filing.” Litigants should direct requests for relief pursuant to rule 2.259(c) to trial courts.

Rule 8.77(d) is the more expansive remedy. Rule 8.77(d) states: “If a filer fails to meet a filing deadline imposed by court order, rule, or statute because of a failure at any point in the electronic transmission and receipt of a document, the filer may file the document on paper or electronically as soon thereafter as practicable and accompany the filing with a motion to accept the document as timely filed. For good cause shown, the court may enter an order permitting the document to be filed nunc pro tunc to the date the filer originally sought to transmit the document electronically.”

The court confirmed that rule 8.77(d) “appears to be broader than rule 2.259(c)” because it allows for relief based on a “failure at any point in the electronic transmission and receipt of a document” (not just a “technical problem with a court's electronic filing system” as under rule 2.259(c)).

But does rule 8.77(d) apply to a notice of appeal? The court finds this not completely obvious, but concludes that yes, rule 8.77(d) does apply to a notice of appeal.

To seek relief for an untimely appeal under rule 8.77(d), appellants must immediately file the notice of appeal and also file a motion for relief in the Court of Appeal.

The court then explained what to do if a failure in the electronic filing process prevents an appellate from filing the notice of appeal.

  1. File the notice of appeal “as soon thereafter as practicable.” This was the problem for the appellant in Garg. The appellant kept looking at the trial court docket, and noticed that the notice of appeal had not shown up yet, but just assumed that the clerk was backed up. Ultimately, the appellant took action to address the problem 29 days later (by that time, 15 days after the appeal cutoff). Appellant even had retained an appellate specialist, who submitted a declaration stating that docket delays of a few weeks were not uncommon in his experience. But to no avail: the court held that waiting 29 days was not “as soon thereafter as practicable.”
  2. File a motion under rule 8.77(d) in the Court of Appeal showing, by a preponderance of evidence, that the appellant’s attempt to e-file was timely. In Garg, the court concluded that the appellant had shown good cause. The appellant submitted declarations of trial counsel and counsel’s paralegal, stating that they did send out the notice of appeal for electronic filing and service. The notice of appeal was served, but only later did they realize the docket did not reflect the notice having been filed. They called the e-filing vendor, but the vendor had no record of filing.

Under the “doubtful cases doctrine,” a tie goes to the appellant.

On the evidence here, the court seemed to teeter. If there was no record of an e-filing, did the appellant establish the timely attempt by a preponderance of evidence?

Here is more good news for an appellant: On the factual question, the appellant gets the benefit of the “doubtful cases doctrine.” As the court explained:

“[C]ase law acknowledges a “well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ [Citation.] ... [T]here are many cases in which this policy, implemented in accordance with ‘applicable rules,’ will lead to a determination, based on construction and interpretation, that timely and proper notice of appeal must be deemed in law to have been filed within the jurisdictional period.” (Hollister, supra, 15 Cal.3d at p. 674.) Courts have applied the “doubtful cases” rule in a variety of contexts to allow appeals to proceed when timeliness is uncertain. [Citations.]”

“The “doubtful cases” doctrine does not shift the burden of proof to the respondent or lower the burden of proof below the preponderance of the evidence standard. But it does mean appellants should not be required to resolve all ambiguities and uncertainties in the record in order to obtain relief.”

Unfortunately for the appellant here, however, the timely attempt was not enough: the appellant needed to correct the e-filing problem “as soon thereafter as practicable,” and the appellant, by waiting 29 days, did not do that.

Appeal dismissed.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

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

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

The dissent would have found a waiver. The dissent would have relied on the trial court’s implied finding that the employer delayed for 13 months precisely “to intimidate a vulnerable at-will employee who lacks the economic resources to cope with such delay.” “Quach's appellate brief hits the nail on the head: “[By now], all benefits of a speedy resolution [Quach] could have obtained through arbitration [have] been lost.””

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

Blog Note:

The Quach opinion was originally unpublished. After I filed an amicus curiae request for publication, the Court of Appeal granted rehearing on its own motion, and re-issued a modified and partially published opinion. The Court published its holding that the defendant seeking arbitration here had not waived arbitration by litigating for 13 months. The result is the same, but the Court further stressed that "Quach admitted he incurred no costs in litigation that he would not otherwise have expended had the case gone to arbitration earlier." The Court also deleted a reference to the rule that the moving party prejudices the nonmoving party "by depriving that party of the advantages of arbitration." This was one of the challenges in the dissent, to which the majority also now includes a direct response.

The appellate holding now stands for a narrower rule that litigation costs are not prejudice for purposes of establishing a waiver of the right to arbitrate. But the holding now implicitly acknowledges that the delay does deprive the nonmoving party of the intended benefits of arbitration. This represents an anomaly in the Supreme Court's St. Agnes doctrine. We will see if the Supreme Court addresses this in its review.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

What does the U.S. Supreme Court’s holding in Viking River Cruises, Inc. v. Moriana mean for PAGA claims against employers in California? Employment attorney Eric Kingsley explains how, under Viking River, employees now may be forced to waive their PAGA claims on a representative basis and arbitrate them individually instead. The holding disapproves the California Supreme Court decision in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348 as running afoul of the Federal Arbitration Act.

Eric explains that the effect of Viking River may be short-lived. The California Supreme Court has already granted review in another case involving whether arbitration may be compelled in a PAGA representative action in Adolph v. Uber Technologies, Inc. Eric explains how the Court may follow the lead offered in Justice Sotomayor’s Viking River concurrence.

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

Eric Kingsley’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

TRANSCRIPT:

Eric Kingsley  0:03
I find arbitration to be an anathema. It's it's absolutely horrible. I mean, the Seventh Amendment exists for a reason.

Announcer  0:09 

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  0:23 

Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:25 

And I'm Tim Kowal, the California appellate law podcast as a resource for trial and appellate attorneys. Both Jeff and I are appellate specialists, but we split our practices about evenly between trial and appellate courts. And on each episode, we try to bring our audience some legal news and perspective they can use in their practice.

Jeff Lewis  0:41 

All right, and a quick thank you to our sponsor case text. This podcast is sponsored by case tax and case tax is a legal research tool that harnesses AI, and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber of case tech since 2019. And I highly endorse the service listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at keys text.com/calpe That's these texts.com/ca LP today we

Tim Kowal  1:11
are glad to welcome Eric Kingsley to the podcast. Eric is a principal in Kingsley and Kingsley. He has practiced concentrates on wage and hour cases class and pagal litigation in California. He has been on the cutting edge of numerous legal issues, including being a part of a legal team that took a case to the United States Supreme Court in 2012. And then in 2020, Eric personally argued a case before the California Supreme Court in Chem V rains that resulted in a seven Oh opinion in his client employees favor. Aside from his legal work. He has been an active member of the California Employment Lawyers Association and on the board of the Consumer Attorneys of California who seeks to advocate for legislation on behalf of consumers and employees in Sacramento. Eric has served as the chair of the anti defamation League's Pacific Southwest Region, and currently serves as vice chair of International Affairs. Eric received a BA in history from UC Santa Barbara in 1993, and remains an avid history buff and a political watcher. So Eric, welcome to the podcast. Thanks for joining us.

Eric Kingsley  2:13

Thank you so much for having me.

Tim Kowal  2:15
I understand that that you and Jeff have a connection as well. I think you go way back to Loyola law school. Is that right?

Eric Kingsley  2:22 
Yes. And I believe we also attended college together at UC Santa Barbara, go Gauchos?

Tim Kowal  2:27 
Yes. All right. Well, Eric, I only gave gave a snippet of your resume, if you would tell us a little more about your employment practice. And as we're going to be talking about pega cases, how much of your workload involves pega cases?

Eric Kingsley  2:42 
So you know, I My practice is dedicated to employment law, you know, and we probably have a smaller portion of our practice, what some of the industry call your fee, har, single plaintiff, employment matters, sort of sexual harassment, discrimination. And sometimes you have individual Wage and Hour claims if the matters are particularly large. But the bulk of the practice, probably about 80% is a class and haga litigation on behalf of groups of employees who have been some way harmed by their employer, not paid overtime, denied breaks during COVID. One thing that was very common is he would send folks home and they would have to pay for their own internet and their own cell phones and no reimbursement of their business expenses. And so that's kind of an interesting claim that you didn't see prior to 2020 as common.

Tim Kowal  3:32 

Now, here's maybe an ignoramus question, when does a pega action become a class action?

Eric Kingsley  3:40 
So paga, you know, is a statute that was enacted? Right as Gray Davis was sort of leaving office having been, you know, recalled from office and replaced by, you know, Governor Schwarzenegger, and this was sort of his last act as governor. And so it's interesting when it was enacted back in early, I think it was 2004. If I get the date correctly, it wasn't an enlarged use. And so I think what happened from a historical perspective is in 20, oh 11 When the 18 T vs. Concepcion case came down from the US Supreme Court, which started to put into question whether or not arbitration agreements could be enforced, first against consumers and started to create a trend as against employees as well, that paga and then you have the ischemia and a case here that came down in 2013. From our own California Supreme Court that said, the state is not in privity of contract with the employer. And so therefore, because paga you really stand in the shoes of the state, and are bringing labor enforcement actions on behalf of the state. That claim couldn't be compelled into arbitration. And so I think since 2013, so really nine years, haga started to pick up a head of steam, because many class actions couldn't be brought because they compelled are the individual be compelled into arbitration. But paga as an enforcement action on behalf of the state could still be pursued without arbitration being a roadblock.

Tim Kowal  5:10 
So you Jeff, as sometimes happens, my attempts at light banter take us into law review article answers. And sorry about that. Just demand to bring it I mean, I read I was telling Jeff that I've read some of some Eric's daily journal articles and pieces talking about the Viking river cruises case that we'll be talking about a little later. And and I got the same feeling as far as I can remember having about a pellet procedural Arcana before studying for and passing the appellate specialist exam. This is this is worthy of being its own area of legal specialty, these employment law cases and paga cases.

Eric Kingsley  5:46 
It's interesting if I can intercede for a second I what I find interesting about wage and hour, especially though the practice developed over the last 15 or 20 years, is that it's very legal intensive, which is probably right up your guys's alley, because that's sort of what you do with your appellate and it's very appellate intensive to to some degree, whereas the other side of employment law is really interesting. It's very much about emotion and emotional distress damages and a little bit more touchy feely, you know, whereas Wage and Hour tends to be much more about math and law, it's a little bit more cut and dried, either it is or it isn't, you know, depending on the circumstances.

Tim Kowal  6:18 
Well, we'll talk a little bit later about opportunities where appellate attorneys can get involved in these pocket cases, because in employment arbitration, arbitration gets involved so often in arbitration is designed mostly to cut us appellate attorneys out of the out of business. So so I'm anxious to know of any angles where appellate attorneys can get more involved there. But I have to go back to to your United States Supreme Court case, tell us a little bit about your journey to the US Supreme Court.

Eric Kingsley  6:43
Yeah, so that was interesting. It didn't end well. But so in about 2007 2008, I started getting involved with a series of cases on behalf of pharmaceutical sales representatives. And those are kind of the people that go into doctors offices, and sort of convinced the doctor to prescribe particular product drug usually. And so they were getting paid on a straight salary. And so I us and a couple other lawyers in New York in Chicago, decided that that was inappropriate under both federal and and state law. And it makes practical sense, because the when the pharmaceutical rep talks to the doctor, she's or he is a lot of them were women, trying to get a non binding commitment for the doctor to prescribe a product. And so the industry was claiming that that was the sale. And so therefore, they were exempted, or what's called the outside sales exemption. We said no, no, the sale occurs when the patient shows up at a pharmacy and actually pays money, you know, to the pharmacy to purchase the actual product, that that's where the sale occurs. So we litigated these cases for a while there was a Second Circuit ruling that actually ruled in our favor and the employees favor, and then the Ninth Circuit ruled against, there was a team out of Arizona that was handling that case. And they wanted to appeal it to the US Supreme Court. And I sort of told them that that was a bad idea. And they weren't convinced. And so then the other side hired Paul Clemente to be their lawyer. And Paul Clement, basically, in his opposing brief told the court to take the case and they took the case. So then we proceeded to hire Tom Goldstein, who is the SCOTUS blog founder and argue the case and we felt pretty good actually, the argument, interesting story I am when I showed up in DC, I wasn't at counsel table. I was there were four of us that sort of were on the brief, but because the Solicitor General came in at the last minute, two of those seats, went to the Solicitor General, so I did not get my coal pen. I didn't get to sit at counsel table. But interesting story. When I walked into the chamber, I didn't have anything on me. Most people had phones and wallets. I happen to have not brought it with me because I kind of knew we were gonna have to go through security, walked right. And I was the first person that entered the courtroom. And they sat me right on the front row. And Donald Verrilli, Jr, who had a reserved seat that was seated next to mine, who at the time was the Solicitor General of the United States. And I got to have a nice conversation with him for about 45 minutes. And after that was over, we felt good. And then about I guess two months later, we got the decision five before we lost, Alito wrote the opinion and Breyer wrote the dissent, just along the lines that you would expect.

Tim Kowal  9:22 

Yeah, no, that's that's an incredible story, though. What a ride. Well, let's Well, let's move to your more recent case in the California Supreme Court in in 2020. The case was Kim V. Raines, where the California Supreme Court ruled in your favor, this time in a class action wage claim. And I wondered if, before we discuss that case, do you have any tips to our audience on how to get the California Supreme Court to grant review? What you

Eric Kingsley  9:49 
have to lose? Right so I, you know, interestingly enough to hear the story of the case I lost in the trial court. Then I went to the Court of Appeal, lost again and sort of incredulous How is this possible, they don't understand, you know, the way the law is supposed to work. And then you file your petition for review. And lo and behold, they take the case and you look like a hero. But but for, you know, the since the grant rates are so low, you know, I could have ruined the law just as easily has been the hero to the employment bar by sort of setting it straight.

Jeff Lewis  10:23 
All right, why don't you tell our audience what that case was about and what the Supreme Court ruled.

Eric Kingsley  10:29 
So my client, Mr. Kim, was worked at a restaurant and he wasn't paid overtime when he was a management trainee. And so our argument was that because he, he didn't yet have managerial authority, he couldn't be paid as an exempt employee. And therefore, since he worked overtime, he was entitled to overtime. And I don't think really, that was really in much dispute. I think it was pretty clear we were going to when they made a motion to compel arbitration, the paga claim this is pre Viking, obviously, at the time was stayed in court, we went to the arbitration proceeding, they then proceeded to serve a 998 offer on us for $20,000 exclusive of fees. So we could get fees on top of the 20,000, the claim was probably only worth about $10,000. And so we kind of felt we were in a quandary, we knew that a trap was laid for us. But we didn't feel that, ethically speaking, we had a choice, you know, if the claim was worth what they're offering us twice what his claim was worth. And so we accepted, there was language in the 998. That said, sort of paraphrasing from memory here, but something like that. This only applies to Mr. Kim's individual claims only. But we thought, okay, we know this could be a problem. But you know, we have no choice. We have to take our shot. So we go back to the trial court, they make a motion for summary judgment, saying that basically he loses standing. The impetus for that is labor code. 2699, which is the August statute says that an aggrieved employee is someone who wants a more employed by an alleged violator, so employed by the company and who one or more of the alleged violations was committed against. So we thought, well, you know, they committed the overtime violation against him, the fact that he doesn't have individual standing for his pure individual claims anymore shouldn't affect his paga standing or disagreed granted summary judgment. We thought we had, you know, we had to fight back. So we we appealed, the Court of Appeals was very hostile and oral argument and affirm the judgment of the court. And then we went to the Supreme Court and California Supreme Court, and they were very favorable in the opinion, they basically said once aggrieved always, you know, if you were employed by alleged violator, number one, and it was committed against you, you don't lose that status as an aggrieved employee, just because you've settled your individual claims, the state still has a claim and you meet the standing requirement. Yeah.

Jeff Lewis  12:47 
And let me ask you this, you obtained a seven Oh, decision and the California Supreme Court. By my reading, the Supreme Court of California often seems less divided and less divisive. In general, when they decide cases than the United States Supreme Court. Would you agree with that? And why why is it the California Supreme Court can can all get on the same page in the in the United States Supreme Court can't?

Eric Kingsley  13:10 
It's it's interesting. Yes. As you're asking me the question, I kind of saw what you were going with that. It's always interesting to me, and sometimes there's some pretty liberal opinions that have come out of the court over the last 510 years, you know, Justice chin, you know, even on the court now, Justice Corrigan, who obviously were appointed by Republicans, and you would think have a little bit more conservative point of view. But it just seems like in general, on almost all issues, you don't see too many dissents may even go back to the breaker case, which was in 2012. I believe there were two concurrences where they felt like the court could should go a little further. But But generally speaking, you get wide consensus even on pretty I don't want to say radical, but you know, somewhat more than left of center positions on on employment matters that really probably disappoints the business community to a significant degree.

Tim Kowal  14:02 
Do you think that may have to do with with issues being less ideologically tinged, or because the justices themselves are less ideologically tinged?

Eric Kingsley  14:11 
I don't know. I mean, maybe maybe we want to hope that judges look at what statute on the page and if the legislature isn't acting more left leaning principles, they're actually interpreting them as they were written? I don't I honestly, I don't know how to read their minds. Right.

Jeff Lewis  14:25 
Let me ask this, you know, as appellate attorneys, Tim and I and our most of our listeners, are generally hostile to arbitrations, because there's no meaningful right of appeal on the merits of the dispute. And I was just wondering with the work that you do the employment work, do you see any role for arbitrations in employment disputes? Are there any disputes that you think arbitrations are the preferable way of resolving disputes?

Eric Kingsley  14:50 

So two comments about your question one is interesting. There actually is a place for appeals and arbitration I've seen Not that many, but there are a few number have arbitration agreements that actually provide for at an appellate layer of review to an arbitrator. So, I guess theoretically, practitioners might, you know, reach out to appellate folks to to handle those appeals if they're either successful or not successful, depending on what side they're on. But I find arbitration to be an anathema. It's absolutely horrible. I mean, the Seventh Amendment exists for a reason. And the fact that you can just waive your Seventh Amendment rights, you know, pre dispute seems crazy to me. I mean, I think that, you know, Madison would be rolling over in his grave if you heard that we've created such a system. And I actually further predict, probably in 15 or 20 years from now that the FAA will be drawing the Federal Arbitration Act will be drastically carved out and we'll look back at this period of history as sort of a second Lochner era, and then be surprised that folks had to go to some private judging in order to get justice in this country.

Tim Kowal  15:53 
You have a comment on on private judging more, more generally, we have talked about this issues. Some some concurring opinions and dissenting opinions that Jeff and I have talked about in recent years, have been taking a little bit more of a critical shot at at the idea of private judging, as you just expressed, and do you do you see a trend going one direction or another, either for or against private judging? Well, I

Eric Kingsley  16:17 
think that the business community in the chamber obviously likes private judging, because, you know, I mean, especially, you know, jury trials can can get out of hand. I mean, I understand on, you know, especially in a sexual harassment case, which now with the new law that Biden signed earlier this year, sexual harassment claims are excluded, which shows it was unanimous consent. So there were 100. Senators, I mean, think about how they divisive this country isn't good 100 senators on a voice vote, approve that bill, and and even large numbers of Republicans in the House voted for it wasn't overwhelming there. But and so you have to say to yourself, that maybe the me to movement, and the combination of Gretchen Carlson, who used to work at Fox News was pushing that Bill made it that sexual harassment was just like, okay, that goes so far, that we're not gonna allow private judges to hear those disputes. But why is that dispute any different than than any other employment dispute? And so it's interesting. I mean, even in the if you look at the fair tract, which is the act in Congress to basically carve out employment and consumer matters there, Matt Gaetz, the pretty far right wing congressman from Florida, it has been for many, many years been in favor of carving that out sort of a populist message, if you will. And even Senators Graham and Kennedy from Louisiana, have been favorable towards it. So there couldn't be a trend, I think developing here where, you know, both sides of the arm see forced arbitration as something that's not, you know, acceptable in the country.

Tim Kowal  17:47
Interesting. Well, let's want to ask a question from, from the other perspective, from this perspective of employers. Now, you know, a lot about employment law, and many of our listeners are attorneys, who are employers themselves running their own firms. Sometimes you hear these cases coming coming down, or you hear about these employment regulations. And you think, Oh, my gosh, you know, there's just so many traps for the unwary. Did I remember to give my, my assistant a break last Tuesday, or am I gonna get hit with a lawsuit? Or Did I did I remember to put out enough chairs for all my staff? Am I gonna get hit with a lawsuit? What can you say to to assure good faith employers that, you know, having fair employment in laws and enforcement procedures does not mean that you're gonna get hit with a lawsuit every Tuesday?

Eric Kingsley  18:32 
I mean, I hope not. I mean, it's, it's, it's not easy, I will, I will acknowledge that, that there are a lot of different things. But I would say that there's probably 10, you know, five to 10 really big things that you really have to worry about. I mean, meal breaks, you know, depending on what type of business you're in seating, you know, I mean, there are some smaller regulations that have to be complied with. I do think, though, that you is an employer of any size, you know, and especially small businesses, maybe less than 50 will be cheap about, you know, hiring labor counsel, because it's an easy cost to, to eliminate, but it's sort of short sighted because if you do do something wrong, then you know, the expensive the lawsuit is gonna be much greater than, you know, having somebody go through your handbook and give you certain basic advice on how to run your business or law firm or whatever it might be. But on the other hand, I also think that it's about treating people right, you know, if you treat people, right, most people and then I can't say this without exception, but I think most people are not going to seek out legal counsel afterwards. I mean, I can tell you that a lot of people all at my firm, really, really mad and feel like you know, disrespected to a large degree. And even if I can't help them in the thing that they're coming to, you know, let's say they think they have been wrongfully terminated, you know, in California and at will employment state so you can be terminated for any time any, any, any reason as long as not the wrong reason. And so they don't have a wrong reason. Then then typically that there's there's not a case there. But sometimes if you ask them a couple questions about wage practices, and did you get paid overtime? Did you get your breaks? All these sort of things? They said, Well, no, I didn't that really, you know, and so then all of a sudden that leads to another conversation, all of a sudden the employer could could have exposure. But if they never called the lawyer, they probably wouldn't have necessarily pursued it.

Tim Kowal  20:22
Right. Now, there are a lot of we keep hearing stories about a lot of companies picking up and moving to other states, like Texas and citing complaints about over regulation. And in your view is, is there an over regulation issue? Do we regulate employers, the right amount, are there? There's some things we're still missing? Or some things we're going overkill? What's your perspective on that?

Eric Kingsley  20:45 
I mean, I think there's probably, I mean, anybody can can have different opinions on this, you know, and so there's probably like, as it relates to the overall I think it's about right, there could be some areas where it's more in some areas last and you know, there's always I think, room for reform and sort of consolidating things, but I don't I hear

Tim Kowal  21:04 
on on bigger corporations who have their own HR departments rather than mom and pop shops, or, you know, single, single employers who, you know, have to make heads and tails of all of the regulations themselves are and it's going to be in, you know, economies of scale make it easier to hire lawyers to handle these things.

Eric Kingsley  21:23 
That's true. And I think the legislature has done a pretty good job in recent years where they've had some carve outs for like employers, less than 25 employees and minimum wage had a slower phase in for those those types of businesses. And so I know, in working with sila, California Employment Law Association, that there's always a sensitivity to some of the smaller employers and sometimes some of the regulations, you have to have a certain number of employees before they get triggered.

Tim Kowal  21:47 
All right, well, let's let's jump into Viking rivers. I'm almost scared to talk about Viking rivers because it I don't know that it means what it's what it says it means. And whatever it means is it going to be overcome by the recent Adolph case, it's been granted review in California, I understand wonder if you give our listeners a lay of the land of Viking rivers and maybe connect the dots from where we go. It's a recent Godus decision from just a couple of months back, but already, is it obsolete already?

Eric Kingsley  22:14 
Well, the defense bar certainly doesn't think so. So, you know, we're sitting here at the end of August 2022. And I've had at least 11 motions to compel arbitration. Since Viking came down. We've already argued two of them, we won one, we sort of lost the other, but we didn't really lose we, we were compelled arbitration, we come back to do our paga. I think that's the way a lot of them are gonna go down is the court may send folks to what's now called individual paga claims. It is a real hard onion to see.

Tim Kowal  22:47
Well, what let's start from the from the holding of Viking River. What was the issue in Viking River that the Supreme Court decided and what did it hold?

Eric Kingsley  22:55 
So there's really three different holdings. I mean, I guess, if you read the section two, there's four sections of the opinion. Section one is basically introductory, section two, is really interesting, because section two And section three sort of contradict each other. And there's been some speculation that maybe a Sotomayor clerk wrote, or Kagan clerk wrote section two, and that Alito, or Gorsuch clerk, you know, or themselves, you know, wrote section three, because they cite the same cases for different principles. And so to take a step back, so you have told us that the problem with these these arbitration cases in the US Supreme Court is they all build on each other. So there was a case called Stolt Nielsen that came down in 2010. That basically said that if you had a silent agreement, that that that a class action couldn't go to arbitration if the agreement was just silent. What's interesting about that case, is the parties stipulated that it was silent. And so over the last 12 years, if there was ever an issue of trying to go to arbitration, on an on a, quote, silent agreement, we the plaintiffs would never say it was silent. We would just say, well, it doesn't mention arbitration. But if you look at the wording of the agreement, it was it really the parties anticipated that there would be a class proceeding. And so Lamps Plus, which came down, I guess, last year or the year before sort of ended that it basically said, in order for a class action to go to arbitration, you actually have to say that the class action can go to arbitration. So having said that, Viking said in section two, it says, Look, we don't think anything in our authority suggests that paga is the same as a class, and that we don't see any problem with a power claim going into arbitration. So section two, I think, is a really interesting question how the federal and state courts are going to interpret that in terms of whether or not all of paga who go to arbitration, you know, if so, if you have an agreement that just doesn't say one way or the other, I think there's a good argument that you can actually compel that case to either side could compel that case to a pug arbitration. There's a couple California court of appeal cases one called Glen air, it's suggests otherwise. But you could argue Viking overrules Glen area because Supreme Court. So but then section three sort of says the opposite. Not really. It says if the party say they don't want to go to Pog arbitration, they can go to pod arbitration. And so I think that sort of makes sense. If the parties specifically say that, then you can't go. But then they also start to they say to assault Nielson, for that proposition. So it's sort of interesting how those are internally contradictory. And so then section four sort of builds on two and three. Maybe to sum it up. I think there's one Viking has they have three things. Viking had a waiver, severability clause and a savings clause. And that's the key to Viking, right. So a waiver, meaning you say I don't want hog arbitration, parametric arbitration is waived, you can't you can't do it. And then they had a severability clause that said, and the reason why the severability clause is important is because the Supreme Court actually said a scanning is still good law. Insofar as it doesn't interfere with the parties right to contract, you still have a right to do your representative paga. And so Vikings agreement had a severability clause that said if there's anything illegal in the contract that gets severed down. But then third, the Viking contract had what's called a savings clause. And what that savings clause said, Look, if there's a separate, if there's something illegal in this agreement, it gets severed out anything that remains in the agreement, that part goes to arbitration. And so at the end of the day, Alito basically said, Look, because the written was drafted this way, and because the FAA, we have to honor their contractual directive, you have to send it's crazy, really, the power gets gets cut in too. And so the individual paga, which there's no such thing under California law, and until Viking came down in June, gets sent to arbitration, the representative paga stays in court because of a scanning. But then in what we're saying is dicta. And this is where you This is where you get to the real crux of the debate right now, it says, but you're cutting, basically, and he doesn't say this in so many words, but in summary, and paraphrasing him, he's like, you're cutting off the head of the snake. And so when that's the head of the snake goes to arbitration, the body's going to die, because the head can't come back and get reattached to the body. And so he's saying he says, as we see it, that the individual loses standing. Now, Sotomayor, to her credit, maybe if we take a step back, there were a it was a two one decision, right, Thomas dissents, because he says this doesn't apply in state court, some crazy reason that you can't come up through the state court vehicle, if it was going through the federal court way, then he probably would come you would aside with the conservatives. So he was out of the picture. The liberal signed on to the opinion, and actually, the court of the opinion is actually only signed on by five, and you'd have for lack of a better word, the moderates, Roberts Barrett and Kavanaugh basically said we would strike pug entirely, but for whatever reason, Alito, and Gorsuch decided because of states rights issues, they signed on with the liberals for the core of the opinion, and, and basically said, you know, this is how it is you gotta have a savings clause and all that. But then at the end, you know, Alito wanted biking to win because he's, you know, pro pro business. And so he said, Viking wins, but Sotomayor and her concurrent says, Wait a second, you know, we could be wrong. And if we're wrong, the California legislature can fix it. Or if we were right, the legislature can fix it. And if we're wrong, the California Supreme Court basically have the last word on this, which brings us, Tim to your mentioning of the eight offers is Uber decision is eight offers Zuber in their issue presented are going to squarely address this standing question.

Tim Kowal  28:37 
Yeah. Well, I wanted to go back to what you said about the situations that Viking river cruises creates where you're going to have what is it the the individual is going to be going to be an arbitration or in the trial court.

Eric Kingsley  28:50 
So the No, the individual paga would be in arbitration. In addition to and this is interesting, this is more of a practice tip, plaintiff's lawyer should bring all their individual claims. And so if you're going to get pushed into arbitration, you should not only bring your individual paga, you should bring your pure individual claims. So any claims that you have just by statute, irrespective of paga, and if there's wrongful termination claims or other types of claims like that those should get brought into arbitration too, because you might as well.

Tim Kowal  29:20 
Okay. And so you've got that in arbitration. And then you've got you've got the rest of the the class so to speak in, in the trial court and what they're just stayed pending the outcome of the of the arbitration.

Eric Kingsley  29:35 
Presumably there stayed the there's an interesting argument floating around maybe if you read the way the appellate statute is, maybe they don't get state, maybe you run them concurrently. I think those arguments might start getting made. So

Tim Kowal  29:47 

you know, should Why was inconsistent rulings, potentially,

Eric Kingsley  29:51 

I guess that's true. So I mean, I guess the trial courts in the court of appeal will have to sort out whether or not they should be status scanning and sort of mentions it in passing but doesn't really say whether or not the claim should be stayed or not. And whether they go forward at the same time

Tim Kowal  30:05 
or whether one has stayed as soon as there is a favorable ruling to one party in either forum, isn't the other, aren't they going to rush into the other forum? Or is it the the other the other party is going to seek non non mutual offensive collateral estoppel. And in the other forum, are they

Eric Kingsley  30:23 

well, actually is mutual, although it's interesting. There was a unpublished opinion that came down on Friday, August 26, where the plaintiff lost in arbitration, the court said it wasn't. It wasn't didn't create issue preclusion. So maybe that'll get published maybe another case, we'll bring that issue up. So I don't think that's really sorted out yet.

Tim Kowal  30:40 
Interesting. So, so there are a lot of a lot of loose ends, I guess. Now, you have mentioned in your writings in the daily journal, I think that the defense bar, the employers look to Viking river cruises, and they see this is a big W, it's a big win for their side. But you suggested that maybe this could be wind up being a boon to to the plaintiffs bar,

Eric Kingsley  31:01

I wouldn't say it's a boon in the sense it's an annoyance to some degree. But I think if you look at it from a practical perspective, so let's say they win their motion to compel arbitration and the individual paga goes to arbitration. So now you have to litigate that claim. In arbitration, I understand employers think maybe they have a better shot at winning in arbitration, because of the whole repeat player idea and all that sort of thing. But you're a plaintiff's lawyer, and you're bringing good claims, and you win at least one of your haga claims. And the paga claims are relatively small, if you think about it, because the paga penalty when it's large in the aggregate, but for one person, it's small, because it's like 100 bucks a pay period. So if you have a one year claim, somebody's paid twice a month, to $2,400 claim. So an arbitrator might be like, okay, 2400 bucks, maybe I'll strike him on some of these other things that he's bringing in award $2,400, right. And it goes back to the trial court, and now the employer is going to pay plaintiff's lawyers fees, the defense lawyers fees, and the arbitrators fees. So that's like, probably 150 $200,000, like minimum, and now you're going back to the trial court. And now you've just won $2,400. And you say to the trial court, well, like you just mentioned, Tim, non neutral offensive collateral estoppel, we won, like, Okay, now the question is damages, and the court is like, what did the arbitrator do? Well, I'm trying to give me 100 cents on the dollar. So then now, when the defense is trying to argue, oh, it should be some small number, like 10 cents on the dollar on the paga claim, because the court has discretion, the court is going to be anchored to that larger number that the arbitrator is going to award just for one person. But now you've got 500 people, maybe the judge is more inclined to give a higher amount. And so I think defense lawyers should think long and hard, especially in smaller companies, if they're going to come out ahead of the game on a business side by going through this whole process. Yeah,

Tim Kowal  32:48
you know, to go back to this, this Adolph versus Uber Technologies case, I just want to make sure I understand how that comes about and how that plays into the Viking river cruises analysis. I think it has to do with there was there was some dicta in the decision in the Viking river cruises case that that has that references that a plaintiff can maintain non individual paga claims in an action only if if that if that claim is being maintained an individual claim in the same action. And so when you separate them, I guess you it destroys standing in this analysis of the dicta. And that's where you point out that Justice Sotomayor says, Well, maybe yes, maybe no, that's a state law determination. And and is this where eight offers his Uber Technologies comes in? It's going to decide the standing issue?

Eric Kingsley  33:36
Yeah, I mean, and it goes back to the Kim versus reigns case, because at the end of the day, you know, Kim versus reigns said once aggrieved, always agree. Now, the facts are a little bit different here in the sense that so when Kim was an overtime claim, under the overtime statute under the labor code, right, and then we were trying to bring an overtime claim under paga. And so the court said, just because he settled his overtime claim under the labor code, he could still stand in the shoes of the state, and bring the paga claim on behalf of the state. So that's settled law. So then the second question, then is if he settled his individual paga, so it's a little bit different, because within the same statute, can he continue to represent the other aggrieved employees inside the paga statute once he comes back to court after arbitration? I think the same principle applies, though, in the sense that in kin versus Rames, the court said once aggrieved, always aggrieved, I was having a conversation with a defense lawyer the other day, and I said, Can you name me one, California or California Supreme Court case, where the justices ruled in a pro employee or matter in the last 10 years? And he couldn't name one? I don't I don't I mean, we probably could if we went through the list, but it doesn't happen very often. So if you were if you're betting on this, you know, the calla convention is coming up and you know, all these plaintiffs lawyers are going to Vegas. So be if there was a betting window and we could bet on ADA versus Oops. I mean, I imagined the odds would be horrific. You know, I'd have to put down $100 to win 10.

Tim Kowal  35:06 

Yeah, yeah.

Jeff Lewis  35:07 
Hey, are you going to be filing an amicus brief regarding eight off case?

Eric Kingsley 35:12 

I have not been asked. But I guess if if Michael Rubin needs needs some help, I would be happy to help out on that. Yes, absolutely. Okay.

Tim Kowal  35:19 
Well, I told Jeff, that that I was scared to talk about Viking river cruises if because it's going to make my head hurt. And I think that's been borne out. This seems like so many ins and outs and ups and downs. And what have you. Is it mind good company here? Are there? I mean, I can't imagine having one of these cases and not consulting a specialist. And I repeat, I think that, that what you do is plaintiffs? Well, plaintiffs or defendants employment law should be its own area of legal specialty recognized by the state bar after this conversation. I appreciate that

Eric Kingsley  35:49 
I actually don't think it's as complicated as it seems, once you get into it right after the opinion, I actually drafted up a flowchart that's I've circulated a couple of different CLAS. I mean, it's, you know, there's about six or seven weigh stations along the way. And there's, there's things you should look for. But I can tell you, if somebody sends, and I'm happy to do it, you know, people send me arbitration agreements, you can look through it in about four to five minutes. And you can identify, I mean, if there's about two paragraphs, you want to look at the scope of the agreement, because sometimes it can, you can fall outside of the scope of the agreement, and that haga may not be included, depending on the language. One of the problems there was the people were trying to anticipate what the Supreme Court was going to do. And I don't think anybody anticipated this. And so the length the language is drafted in an odd way. And then you'd have to look and see, are there severance clause severability clauses? Or are there savings clauses? You know, and I think that's the crux of it. So it gets a little deep in the weeds. And it sounds more complicated than it is. But I think if you read the opinion through two or three times, you kick in, it kicks into your brain.

Tim Kowal  36:49
Got it? Well, but the problem seems like it's not it's not going to have a very long shelf life. It's a it's already morphing, at least here in California are potentially going to morph with the aid off case.

Eric Kingsley  36:59 
I think that's right. And the legislative session, they did not address it. So but I think that next year, we may also, I mean, it's interesting, we may see a bill and 23 to try to address it. And then the other wrinkle is that there's a ballot initiative that qualified for the November 24 ballot. I think they were trying to qualify it for this year, but they were not able to get the signatures in time. So it's qualified for the 24, November 24 ballot, you know, so we could see ads on TV, you know, in two years time telling us evils of paga. And the lawyers trying to trying to hurt employee employees or whatever it is,

Jeff Lewis  37:34 
Hey, Eric, you seem to have your pulse, your finger on the pulse of what's happening in Sacramento in terms of employment law, there was an effort a couple years back to make to legislate a four day workweek for employees. Do you see and it didn't? It didn't go through it died? Do you see that as a realistic direction that California is going to go in terms of four day workweeks?

Eric Kingsley  37:54 
I don't remember hearing about that. I don't I haven't heard about it in a while. I mean, you know that. It's interesting, though, that you could do that, if you want to the Labor Code provides for an alternative work week schedule that can be voted on by the employees, and they can work for 10 or even a 312. if they so choose, you have to go through this alternative work week election procedure and file it with the state

Jeff Lewis  38:13 

secret ballot. And this Yes, yes,

Eric Kingsley  38:15 
it's in the

Jeff Lewis  38:16 
we want to be the one guy that says I want to five days I don't want a three day weekend. You know what that guy being outed?

Eric Kingsley  38:22 
I know, there's a trend amongst like office workers, law firms. I've heard where folks are coming into the office, fewer days, but they don't want workers coming in on Mondays and Fridays. They they want them coming in on either Monday or Friday. They don't want them staying home on both days.

Jeff Lewis  38:38
Right, right. All right. Let's talk about the last case. As we wrap up. The last case I want to ask you about today is the AutoZone case involving employers providing seating for employees. Can you tell us a little bit about that case and your role in in what was it about?

Eric Kingsley  38:51 

So I had a minor role. I was kind of the producer of this. I want to shout out to my colleague, Ari Stiller, uh, he he really drafted the briefs. And he actually argued in the Court of Appeal. I just got my name on it, I guess. But that case was interesting, because the what Autozone did was they are what we brought a claim, claiming that Autozone did not provide suitable seating for its employees. And we were taking the view that like a cashier can sit and go to Europe. Supermarkets are the types of place like that cashiers are almost always seated. For whatever reason in the United States, seating of cashiers even like tellers and banks, until recently, I think you start to see that more when we were growing up by never, tellers were always standing. And the idea is that from a medical standpoint, it's just not healthy, frankly, to stand all day long for eight hours a day. And I don't think we were suggesting that you had to sit, you know, eight hours a day, obviously, there's times that you would have to be doing things and you might be walking around the store, but the idea is that when you could sit you should be able to sit. And so we took the view and the Court adopted it. I mean, in the case of Brinker from 2012, which was this sort of land landmark case about meal breaks the suit, California Supreme Court laid out a standard that you had to provide sort of some kind of a policy document to employees, indicating that they could take breaks, you know that you didn't have to ensure that they got their breaks, but you had to make them available. And so we took the same approach to seating, saying that, and I should say that there's two types of seating cases, their seating case where they say there's no way you could provide seats. And so you have to sort of fight that argument whether the nature of the work is such that it's practical to provide a seat. But this case was they didn't say that it was impractical to provide a seat. They said we had seats, but they were like 100 feet away. And so we made the argument that he didn't tell them that they could take these seats, and you didn't do a good enough job of providing them in the same sense as Brinker. And so the court agreed with that it was a summary judgment that we had lost in the trial court, and it was reversed. So it doesn't mean when actually win the case. But it just means that we get a fair shot in front of the jury to ask the jury whether or not Autozone did a good enough job in terms of providing those seats?

Tim Kowal  41:06
This would be an example of something I had in mind when I asked you the question earlier about good faith employers who are you just want to make sure that they are not running afoul of something I wonder if there's is there some sort of an opportunity to cure in the event that you're not providing your employees something that they ought to be entitled to? Or or whether the law currently requires it or a court may find that the law requires it? Is there an opportunity? Is there some sort of duty on the on the on the part of the employee to give a notice to cure?

Eric Kingsley  41:35
I mean, maybe I think actually, I am trying to think back here to the CNAME record, I'm not sure. So paga has a weird, there's three parts to paga. There's 2699 26 9.3, which has more explanations, and then 26 9.5, which is just a list of statutes. And it's like 60 Plus statutes are listed there. And so those statutes are not curable, and anything else is curable. And so yes, seedings coming out of the wage orders, so may that might not be curable. But But be that as it may, I mean, that's, I think, an interesting discussion about paga is whether or not should be curable. In my experience, though, having filed a few non curable paga claims. In my day. Employers don't cure I mean, right now, currently, nine, my understanding is, I don't know, I could be wrong about this, at least as far back as when my client was working there, they didn't have any kind of a seating setup. And so in many cases, I had a case one time where we filed a case a pirate case, because they did not have a bank in California, where they could cash the check labor code to 12 says that you have to there has to be someplace in the state could be anywhere. I mean, you can have it in your Rica, you know, you know, you can have it in some random rural county, a bank that could cash the cheque that would meet the definition of the statute. And these guys had, it was a very large company, you know, at least a fortune 1000 company that had Bank of New York, and Bank of New York has no branches in the state of California. And we litigated that case for like three years, we had some other claims in it as well, and they did not fix that problem. And so the the problem continued to grow. So it's funny when you talk about employers curing things, it sounds nice, but I've found they rarely take the state up on that ability to cure.

Jeff Lewis  43:24 
Wow, they kind of draw the line and stand their ground. Interesting. Yes. You know, I gotta apologize. I stalked you a little bit on Facebook. To prepare for today's interview, I noticed that you were invited to a dedication ceremony for the Dr. Sally Ride Memorial Highway, and it was wondering who's Dr. Ride and how did you come to be invited to that ceremony?

Eric Kingsley  43:46 

So my good friend, Jesse Gabriel is in the California legislature. And so they decided they were he represents the sort of West San Fernando Valley west of the 405 to the LA County line. And they were trying to, you know, they're trying to find naming rights, and especially there's most of the transportation infrastructure in the state is named after men. And so if you can find a woman that's that's, you know, deserving of recognition. We want to create some equity, parody balance. And Dr. Sally Ride was the first woman I believe that was in space. I'm remembering this correctly. And she grew up in Encino. And she was a professor, I believe she went to Stanford and then she worked in San Diego and she she died relatively young because of some some ailment I believe in maybe it was cancer, I might be getting those facts wrong. And so that was somebody that clearly, you know, made it up to the highest echelons of NASA, actually, you know, was was in space. And she was a resident Encino and so this was something in the district that made sense to to name after Dr. Sally Ryan.

Jeff Lewis  44:51 
Nice. Nice. She was a valley girl who made it to space. Exactly. I don't know about you. I'm really fired up about the reinvigoration of the Moon Landing program the Artemis launch was supposed to happen this week got scrubbed, but fired up and they're gonna have a woman teed up to land on the moon. So I'm fired up about that.

Eric Kingsley  45:09 
That will be great. I, if you're any of your listeners watch the show on Apple TV for all mankind. Oh, yeah, that story tells an alternative history we were really invested hard in, in space. And by nine in the 90s. We were on Mars already. So we're, we're way far behind from where that show envisioned us in terms of our space progress. Yeah, yeah. Although

Jeff Lewis  45:28 
I've heard that Tesla is working on a program to get us to Mars. And there's, you know, healthy competition between NASA and Tesla in terms of we're not Tesla, SpaceX, I should say, Yeah, this is a great show. And it's a treat to watch us catch up to the fantasy of that show. All right. Well, listen, we've we've covered a lot of topics here today, are there any other aspects of your practice, or embarrassing Law School stories about me that you want to share with our audience? Before we conclude, please embarrassing

Tim Kowal  45:54 
lost lots of

Eric Kingsley  45:58
stories. I do have one other interesting case, that's actually in the court of appeals that probably will be argued, either later this year or early next year, dealing with outside sales exemption, we represented them, the folks that actually give you your samples in Costco, the employees that work those booths, and it's actually a third party company that actually provides those employees that they work in the Costco. And they brought in motion for summary judgment on the issue of the outside sales exemption, claiming that they are outside, not working at the headquarters of the company, and that they're selling. And so we oppose it on both grounds today, they're not selling, they're really just, you know, you know, just providing a service and providing samples and so forth. And that also, that outside is crazy that this is really intended for the, you know, Willy Loman type, you know, traveling vacuum cleaner salesman, but the court granted summary judgment, and so we're excited about that case, we feel confident that that court just got it wrong and appeals will will resolve that that's in the First District Court of Appeals, hopefully later this year.

Jeff Lewis  47:01
Oh, interesting. Well, keep an eye on that. Maybe we'll invite you back to talk about it. After that. Maybe winds its way up to the courts. Like can we really end up to the California Supreme Court again?

Eric Kingsley  47:09 
I'd rather win it in the first. Yes. Who knows?

Jeff Lewis  47:13
You never know. You never know. All right. Well, listen, Eric, we want to thank you for your time here. I think that wraps up this episode. Again, we want to thank case text for sponsoring the podcast each week, we include links to the cases we discussed using case techs and listeners the podcast can find a 25% discount available to them if they sign up at casetext.com/CALP

Tim Kowal  47:33 
and we want to remind our audience if you have suggestions for future guests or issues to talk about on future episodes, please email us at info at cow podcast.com. And in our future episodes, we'll be covering more tips on how to lay the groundwork for an appeal and preparing for trial. Alright, see you next time. Thank you so much.

Announcer  47:51 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a 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 ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.

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

Ben’s answer: It’s a ridiculous question. There is no such thing as a “superior” citation format. Just an appropriate format: If you are in federal court, use the Blue Book. If you are in California court, use the Yellow Book.

And if you want to stick out like a sore thumb, do the opposite.

Watch the clip here .

This is a clip from episode 36 of the California Appellate Law Podcast. The full episode is available 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.