Appellate Bonds and Stays: The Cal. Appellate Law Podcast Ep. 7

Timothy Kowal, Esq.
  •  
February 19, 2021

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

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

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

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

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

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

Listen here:

 

Here are the cases discussed in the episode:

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

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

Cases and Laws mentioned in this episode

Buechler v. Butker

Buzgheia v. Leasco Sierra Grove

Chamberlinv. Dale’s R. Rentals, Inc. 

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

East Bay Regional Park Dist. v. Griffin

Estate of Dabney

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

Gold v. Superior Court

Grant v. Superior Court

Lang v. Petaluma Hills Farm, LLC

Morales v. Harris

Provost v. Yourmechanic, Inc.

Quiles v. Parent

Renfro v. Kai-Lieh Chen

Varian Med. Systems, Inc. v. Delfino

Weisenburg v. Molina

Young v. Tri-City Healthcare Dist.

 

And here is a transcript of the episode:

Tim Kowal: 0:02

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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