Cal Appellate News for Lawyers (Oct. 5, 2020): Juror Peremptory Challenges, Appealability of SLAPP Orders, Appeal Bonds, 170.6 Challenges After Appeal, and More

Timothy Kowal, Esq.
October 3, 2020

On Episode 5 of the Cal. Appellate Law Podcast, We Discuss Juror Peremptory Challenges and More SLAPP Orders

My colleague Jeff Lewis and I started the California Appellate Law Podcast because many of our best clients are attorneys, and we wanted to create a resource to help these attorneys avoid falling into appellate traps before they have a chance to call us.

On episode 5, we discuss a recent decision holding that an order an a special motion to strike under CCP 425.16 (a "SLAPP" motion) is akin to a final appealable judgment. As in, a motion for reconsideration is not available here. More anon.

But first, we discuss a new bill every trial attorney will need to be aware of. Under AB 3070 now awaiting Gov. Newsom's signature, any peremptory challenge to a prospective juror will be subject to objection as motivated by the juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, "or perceived membership in any of those groups." And the ruling on the objection is subject to de novo review on appeal.

I think it will be an earthquake in jury-selection procedure. Jeff expects some tremors and a chilling effect, but not a major disruption. In either event, if this is enacted, consider this very carefully before your next jury trial. The bill would not go into effect for civil cases until 2026. If the governor signs it, we will watch how it unfolds in criminal cases.

Also: May an expert witness testify what fraud "smells" and "tastes" like? Held: Not error, but reversed when she went on to testify about punitive damages.

And the clincher: How much will you get sanctioned if your call your judge "succubustic"?

I hope you will tune in. Listen online at, or search for California Appellate Podcast wherever you listen to podcasts.

SLAPP Orders Are Immediately Appealable

On the most recent episode of the California Appellate Law Podcast, Jeff Lewis and I covered the recent Third District decision in Marshall v. Webster, which holds that an order an a special motion to strike under CCP 425.16 (a "SLAPP" motion) is akin to a final appealable judgment, upon entry of which no motion for reconsideration may be taken.

The Sixth District now publishes a similar holding in Reyes v. Kruger (Cal. Ct. App. Sept. 25, 2020) D6 H044661. It likewise holds the order following a SLAPP motion is independently appealable, and the time to appeal cannot be extended by the entry of a subsequent judgment. It is a useful cautionary tale. The multiplicity of this same cautionary tale perhaps suggests the appellate bench is trying to tell us something. And in footnote 6, the Sixth District is trying to tell the Legislature something, too.

In Reyes, an order granting an anti-SLAPP motion is entered. It is followed by a formal judgment. Instead of appealing from the order, appellant appeals from the formal judgment.

That was a mistake, because while a judgment normally follows a non-appealable order, in the case of an anti-SLAPP motion CCP 425.16 explicitly makes the order itself appealable. So the time to appeal ran based on the order, not the judgment.

The new trial motion based on the judgment did not extend the appellate deadline either, because, being likewise untimely, it was not "valid." (Branner v. Regents of Univ. of Calif. (2009) 175 Cal.App.4th 1043, 1046 (also covered on CAL Podcast, ep. 5).)

The Sixth District sympathizes with appellant, but, it says, its hands are tied: "Indeed, courts before us have cautioned that litigants in SLAPP litigation frequently fail to recognize that the grant of a special motion to strike is an appealable order and have even suggested that the Legislature reconsider this aspect of section 425.16."

In a footnote, the Court discusses the 2008 Second District decision in Russell v. Foglio, in which Justice Rubin noted that this aspect of the SLAPP statute created a "trap for the unwary" for "even highly regarded and experienced counsel," who sometimes "overlook that an order granting a motion to strike is immediately appealable." Justice Rubin, and apparently Justice Premo for the Sixth District as well, are "unable to identify a public policy benefit to 'justify the cost to the parties and the courts of two separate appeals." Justice Premo implicitly renews Justice Rubin's suggestion "that the 'Legislature consider changing the statute.'"

Until the Legislature accepts the invitation, remember not to wait to take an appeal on an order on a SLAPP motion.

Reyes v. Kruger (Cal. Ct. App. Sept. 25, 2020) D6 H044661.

(This article is available on LinkedIn here.)

The Basics of Appeal Bonds

To help demystify the subject of appeal bonds, the ABA released this 10-minute primer on appeal bonds this past summer through its “Sound Advice” resource. It covers some of the types of collateral that may be used, and notes that posting cash with a surety may sometimes return interest in excess of the bond premium!

Daniel Huckabay and  with CSBA are great resources for bonds. My colleague Bill Mazurek can also help.

(Not covered: Personal surety bonds, an interesting option available in California. And many judgments require the trial court to set the amount of a bond. A temporary stay may also be available without a bond.)

Can You 170.6 Your Trial Judge After Reversal? It Depends.

I am often asked: If we reverse the judge on appeal, can we 170.6 the judge so we don't get sour grapes from the bench? The answer is: It depends on if the judge "is assigned to conduct a new trial." That is not always the case. Or, it is not always *immediately* the case.

A case in point. At trial, defense attorney during voir dire strikes seven Hispanic jurors. The next day, the judge raises the Batson/Wheeler issue. Plaintiff agrees, but then the judge decides it's "yesterday's news" and the objection goes no further. On plaintiff's appeal, the Court of Appeal reverses and instructs the trial court to rule on the Batson/Wheeler objection and, if the objection is sustained, to conduct a new trial.

This is where the 170.6 comes in. Defendant moves to strike the trial judge, who had originally raised the Batson/Wheeler objection. The judge accepted the strike, and plaintiff took a writ.

Held: No 170.6 challenges lies here, because no "new trial" had yet been ordered. Any new trial was conditioned on first sustaining a Batson/Wheeler objection. Writ granted.

May an Attorney Tell the Jury "The Presumption of Innocence Is Over"?

"During closing argument, at the end of his rebuttal, the prosecutor told the jury that the presumption of innocence no longer applied. He said: 'This idea of this presumption of innocence is over. Mr. Ford had a fair trial....'"

Is this permissible?

A split 2-1 9th Circuit panel in Ford v. Peery (9th Cir. - Sept. 28, 2020) says no (and that the error was not harmless, either). Judge Nelson thinks it is permissible (and that, if it was error, it was harmless).

California Courts of Appeal are split on the issue. See here.

What do you think?

To Argue or Not to Argue (at Appellate Oral Argument)?

For clients on a budget, that is the question. Clients often assume that's where the magic happens. Yet many judges can seldom recall a case where oral argument mattered. And preparing for argument is time-intensive, and thus expensive.

BUT! If you are expected to show, BE THERE!

Link to Ben Shatz's article here.

Brush Up on Your 998 Offers

Should you include attorney fees in your 998 offer? Or stay silent on them? That question came up this week, and this recent case suggests it is probably coming up for a lot for many of attorneys -- particularly those of us who did not find the choice between law school and accountancy school a particularly vexing one.

Defendant makes 998 offer for $12,001. Silent on pre-offer fees/costs. (Thus, by law they are added to the offer.)

Plaintiff declines.

At trial, plaintiff recovers $11,490. And is entitled to pre-offer fees/costs. So trial court rules that $12,001 was LOWER than $11,490.

Held: Reversed. The Fourth Appellate District explained that the 998 offer, because it was silent on pre-offer fees/costs, included them. So the comparison was:

$12,001 + (F+C) versus $11,490 + (F+C)

Drop (F+C) from both sides of the equation and you get $12,001 > $11,490. Plaintiff should have taken the 998. No post-offer fees and costs for you -- defendant gets to recover post-offer fees and costs.

Still, Justice Ikola thinks this is overly complicated and suggests that the Legislature consider simplifying it.

Martinez v. EatLite One (Cal. Ct. App. D4d3 Oct. 3, 2018)

Court Rules Subway Sandwiches Are "Confectionary" Products

The Ireland Supreme Court held this week that Subway's bread, having a sugar content of 10% of the weight of flour, fell out of the tax-free "staple food" category and fell instead into the "all other confectionary and bakery products" category.

All this time I thought I was eating really bad sandwiches, turns out I was really eating really bad éclairs.

Back in our own country, the high court in 1893 declared a fruit, the tomato, a vegetable. I have heard people snipe at that juridical intrusion into the province of horticulture, but I think we ought to accept it, and leave the finer distinctions to others. The fox knows a tomato is a fruit. But the hedgehog knows not to put it in a fruit salad. The philosopher wonders if Ketchup is a smoothie.

And that is why professors have tenure.

The owner of this website has made a commitment to accessibility and inclusion, please report any problems that you encounter using the contact form on this website. This site uses the WP ADA Compliance Check plugin to enhance accessibility.