Appellate Tips Involving Waiver, Arbitration, and Satan: California Appellate Law Podcast Episode 11

Timothy Kowal, Esq.
June 9, 2021

In episode 11 of the California Appellate Law Podcast, TVA appellate attorney Tim Kowal discusses some recent cases with co-host Jeff Lewis in which state and federal appellate courts have found waivers and other errors made by attorneys and parties in the trial court. Like reading a high school yearbook, appellate decisions often capture attorneys making themselves unintentionally conspicuous.

Some of the cases Tim and Jeff discuss that involve "bad yearbook photos" include waiving the right to arbitration by failing to reference it in CMC statements; waiving issues by failing to include them in pretrial statements, trial motions, and posttrial motions; and failing to preserve evidentiary objections.

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Cases discussed:


Tim Kowal: So there you have it, Jeff. While, appealability is absolutely jurisdictional. There's nothing can be done, except that is, in the interests of judicial economy.

Announcer: 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: All right, and welcome to Episode 11 of the podcast.

Tim Kowal: All right. In this episode, we're going to cover some recent cases. Now, Jeff, when I read appellate opinions, I approach them like I do a high school yearbook. I mostly want to make sure it doesn't show me doing anything foolish or unintentionally conspicuous. So here are some cases where appellate courts found fault with something that a trial attorney did. My goal in reading cases like these is to avoid the same kinds of missteps, so I thought we could share some of them with our listeners.

Jeff Lewis: Great. Sounds good. And all the cases we discussed today will be linked in our show notes.

Tim Kowal: Okay, so first up on the arbitration front, we have Wells Fargo Bank N.A. v. Agak . This is a May 2021. Case. These are all recent cases in 2021. This is an appeal of a relatively rare denial of a petition to compel arbitration. The interesting thing about this case is there there are not one but two opinions, the majority authored by presiding justice Gilbert and then Justice tanjun authoring a dissenting opinion. Now after you read justice Gilbert's opinion, you'll probably agree with it. And the gist of it is that by having waited seven months before moving to compel arbitration, the court the majority found that the bank waited simply too long and had waived its right to arbitration. But I think when you read justice Tangeman's dissent, you'll probably change your mind.

Jeff Lewis: You were right about one thing I did read both the majority and dissenting opinion and, you know, California opinions. So he says surprised when he got a dissent in state court.

Tim Kowal: Right.

Jeff Lewis: And at first, I absolutely agree with the majority. And then I absolutely agreed with the dissent. But on balance, I agreed with the dissents position, it was really compelling that the bank had a contractual prohibition against initiating arbitration. And that didn't seem to factor at all in the majority's decision.

Tim Kowal: Yeah, yeah. I came to the same conclusion you did. What happened in the Agak case was that the debtor had raised nuke the debtor is the defendant raise new claims later on in the suit. So while the bank did happily litigate for many months, that was because the bank did not even have the right to arbitrate the claims that were earlier pled in the case. But when the when different claims were raised, the bank did have the right to arbitrate those and then move to to compel them. But the Court of Appeal nonetheless held that the bank had waived that right.

Jeff Lewis: Yeah, you know, and an interesting wrinkle here is that the decision relied on statements made within the party's CMC statements and the fact that the bank CMC statement did not mention arbitration. So the case suggests that it might be a good idea to include some protective language in your CMC statements to the effect that you are reserving all rights to arbitration. And more broadly, be careful what you put in and omit from CMC statements, because some appellate court may hold it against you at some point.

Tim Kowal: Right, right. I think it's a it's a good point to include breadcrumbs about what your what your rights are, if you don't mean to, to to waive any rights and want to make sure that you that you don't wind up having waived them and include them, you know, wherever you can find an appropriate place to do so. And CMC statements may be a good place to consider leaving those breadcrumbs. Speaking of CMC statements. Another critical document to use Alright, speaking of federal cases, and in episode nine of to preserve your claims when you're in federal court is the pre trial statement. And that's the lesson out of another recent the podcast, Jeff, we discussed the importance of rule 50 case called Satanic Temple Inc, versus city of Scottsdale, the Satanic Temple in that case sued after it was not selected to give the invocation at a local city council meeting, the plaintiff tried the case on an as applied discrimination theory. And when they lost that theory, they moved for new findings under a different theory of facial discrimination theory. Yeah, boy, when you're in federal court, the amount of work that goes into crafting and negotiating with your opponent to pre trial statement is sometimes overwhelming. But it's important not only for the trial, but as reflected in this case were discussing it could have appellate implications, motions which are necessary in federal federal court to because the Ninth Circuit held that this new theory was waived, because it was not raised in the pre trial statement. And also it was not raised in the opening brief. Right. Right. Be sure also to read the applicable local rules in your court governing the pre trial statement. And I've seen in many courts where where it's discussed there, they're basically treated like like a pleading and whatever is not included in the pre trial statement is basically removed from the issues in the case, and you can basically count on them preserve issues for appeal. And as if on cue right after we being deemed waived if and when your case goes up on appeal. released that episode of the podcast. The Ninth Circuit furnishes helpful. recent example in the case Brown versus County of San Bernardino. Brown in that case sought a civil rights claim against the sheriff's department. But the claim failed on grounds of qualified immunity. The court held that appellants failure to make rule 50 and 59 motions, those are motions for judgment as a matter of law and motion for new trial, the appellant failure to have made those timely motions in the district court resulted in a total waiver of her substantial evidence arguments on appeal.

Jeff Lewis: Right. So even raising even if she had raised it in her opening brief, the fact that she didn't make the appropriate motions under Rule 50 and rule 59 preclude the Ninth Circuit from reviewing the issue,

Tim Kowal: Right. Yeah. So if you're in federal court, do not forget to make your rule 50 motions. And in fact, because rule 50 motions must be first raised orally in the in the trial court before the matter is submitted to the jury, it might be a good idea to prepare your list of anticipated rule 50 motions before before trial even begins. So you're not caught flat footed having to think about what issues have been raised that you need to put on the record and a rule 50 motion,

Jeff Lewis: or better yet, have your appellate counsel in the wings ready to draft an appropriate rule 50 motion that preserves the issue for appeal.

Tim Kowal: Well, I wasn't gonna say it Jeff, but I'm glad you did. Okay, the next case involves an evidentiary fauz paz one thing about appeals that potentially can be deceptive is the fact that all your evidence goes into the record. But just because it's in the appellate record, does that mean that it's evidence that can be relied on by the court of appeal? The answer is no, not necessarily. As the appellant learned in the case, Epstein versus Prescott neighborhood partners, LLC, the trial court in that case had dismissed plaintiff's complaint on an anti slap motion under a code of civil procedure section 425 point 16. The trial court also refused to admit the plaintiff's evidence in opposition to the motion, but the plaintiff failed to challenge the trial court's adverse evidentiary rulings. Instead, the plaintiff simply proceeded on appeal to rely on that on that evidence as if it had it had been in the in the record as admitted that won't work, the court said we can consider only the admitted evidence and plaintiffs have forfeited any argument that the evidence they unsuccessfully sought to introduce established a probability that their claims would would succeed.

Jeff Lewis: You know, there's an interesting lesson there. I've done over 150 appeals, I've raised evidentiary objections and the failure to grant them or improperly denying them, etc. on appeal. And I don't think I've ever gotten a court of appeal to find that a trial court abused its discretion on an evidentiary ruling. So it's an interesting hypothetical point. And I will continue to press trial lawyers to make objections and seek rulings on those objections. But I have to say I can't remember it actually ever impacting my one of my appeals.

Tim Kowal: Well, that but the issue here was I think that there was the the appellant didn't even raise the question that there was some kind of impropriety by the trial court and refusing to admit evidence and just treated the issue as as a fait accompli, I guess?

Jeff Lewis: Absolutely. You know, it's it's borderline malpractice, I would say not to raise that issue. If all the evidence was excluded on the motion, you are appealing. Now, you should absolutely raise the issue. But I was just commenting in practice. That's true, difficult, difficult burden to show abuse of discretion.

Tim Kowal: True. But then you have to make that you have to give that explanation to your client afterwards and explain that well, even that I made that argument, the Court of Appeal wouldn't have accepted it anyway. So you're you're left with this. To use my analogy, again, you're left with this bad yearbook photo showing you in the bad light. Well, and another question that I had on this and I wanted to ask you the the slap guru, Jeff, on motions for summary judgment, the rule is that the trial court has to rule on any evidentiary objections before the matter submitted at the oral argument. And, and what I didn't know what the rule is on on anti slap practice, if there's been evidentiary objections raised, what happens at the what happens to those objections if the court doesn't actually incorporate incorporate any rulings on them in the tentative or in the ultimate decision or an oral argument?

Jeff Lewis: Yeah, that's that's a great question. And and by the way, what if you asked for a ruling on those objections at the hearing and there's no court reporter like in LA and Orange County, there's no court reporter. I don't think a specific case is actually in the anti slap arena evaluated, like if they have in the MSJ context that you have to make a request for a ruling on evidentiary objections or it's deemed waived. So I therefore in my practice, just assumed that if you do not make a request at the hearing for a ruling, it will be deemed away and I just had a hearing last week, where a judge said judge took the position Well, I didn't consider any of the evidence in connection with my ruling. So I'm not going to rule on your objections that left me feeling unsettled. But I made my request for a ruling anyway.

Tim Kowal: Good, good. Well, so yeah, I would I think you're probably right that if there has not been any indication in the tentative ruling offered by the trial court on your anti slap motion, that that the court has, has, has ruled one way or the other on the evidence on your evidentiary objections, I think you ought to make make a request at the oral argument hearing, because otherwise, yeah, you're probably right. The Court of Appeal would just assume that it's that it's waived treat it the same way it does under the MSJ statute. Well, let's move on to some some some ways that attorneys can make themselves unintentionally conspicuous during the appeal itself. In a previous episode, we talked about a case that suggested a legitimate COVID excuse might afford some relief relief from the otherwise strict deadlines to file a notice of appeal.

Jeff Lewis: Yeah, as I recall, that case offered just a slight ray of hope, because the courts treat the notice of appeal deadlines as jurisdictional.

Tim Kowal: Yeah. And so it proved in the march 2021 case of use on vs Contra Costa County Community College District, the plaintiff, appellant there filed his notice of appeal on the 61st day after the notice of entry of judgment. That was one day late, Jeff, just one day late.

Jeff Lewis: Yeah, it's brutal. These rulings regarding the 60 day deadline are just brutal. But I did see that the appellant urged that the trial court was closed for most of December due to COVID. And his attorney's office was also close due to a county stay at home order.

Tim Kowal: Right. And so I thought that was a valiant effort. But the court rejected those arguments. The court abruptly held that the court and office closures do not excuse appellant appellate, the appellant from the jurisdictional deadline for filing his notice of appeal, even during a challenging time when many people were working from home. And so you can compare that with the case we previously reported and Rowan versus Kirkpatrick that was from September of last year. As I recall that case it did. It didn't find an exception. But it's suggested that maybe if COVID had legitimately prevented the appellant from timely filing the notice of appeal that could warrant you know that that could raise the court's eyebrow, and maybe motivate them to find some some fashion some exception for you. But it didn't work here because I think, as I recall, in this case, the the appellant didn't actually explain how those closures prevented him from filing his notice of appeal. He just mentioned that the courts were closed. And that was basically the extent of the argument.

Jeff Lewis: And, you know, this case kind of reminds me of advice given by Judge Hunt down there in Orange County to litigants. He frequently would say when discussing briefing deadlines, Mr. Lewis, there's no reason you have to wait till the last day to file you can file your papers early. So too, with a 60 day deadline for notices, notices of appeal.

Tim Kowal: Yeah, that's true. Sometimes there are there may be some some reasons to wait not filed on the first day such as if you have post trial motions pending, you might not want to telegraph to the trial court that I don't care what you say, I'm going to pick my appeal anyway. Maybe you give the trial judge some some hope that maybe this litigation will end if only the post trial motions are granted. But in general, I agree. I would not wait until the last possible day to file the notice of appeal. Our next case involves an error I see a lot most attorneys know that the deadline to appeal is extended under Rule of court 8.108 if you file a post trial motion like a motion for reconsideration, but sometimes attorneys overlook that rule 8.108 can never extend past the jurisdictional 180 day limit after the entry of the order. If you remember only that it will save you from the fate in Brownstone Lofts, LLC v. Otto Miller. A case out of the first District Court of Appeal. The trial court in brownstone dismissed the plaintiff's complaint for failure to prosecute. The order of dismissal was January 9. A dismissal order is a final appealable order. So January 9, was the red letter date. And plaintiff the appellant ought to put a big red circle on his calendar around July 7, which was 180 days after that date. That was the absolute last day notice of appeal could be filed. While other factors could make that that that deadline shorter. It would never be after July 7.

Jeff Lewis: Yeah, that case kind of reminds me of a lot of the questions that were on the certified specialist exam for appellate certification, the interplay of 180 and the 60 days and motions for reconsideration. But sometimes, Tim, I'm sure you've experienced this, sometimes trial courts take a long time to decide a motion for reconsideration. And that's what happened here. By the time the court decided the motion, and the plaintiff appealed. The 180 day deadline had passed, the appeal was dismissed.

Tim Kowal: Right. One other thing to try and remember one A final order is entered, the court loses jurisdiction to hear a motion for reconsideration. So a judgment that's final and appealable is not subject to a motion for reconsideration. But certain orders of most orders of dismissal are also final and appealable. So they're not subject to a motion for reconsideration. So that means a motion for reconsideration will not be a valid motion for purposes of extending the time to appeal under Rule 8.108. So in this case, even had the motion for reconsideration been timely decided by the trial court, it wouldn't have extended the time to appeal anyway. All right, let's go back to another topic we've previously tackled. Jeff, we talked about the the Judicial Council form notice of appeal, and whether to use that Judicial Council form or to use your own pleading form instead. And after we discussed that, Jeff, and you you had mentioned that you do sometimes just use a pleading paper version notice of appeal, I realized myself looking at some of these cases that in many cases, there's little reason to use the Judicial Council form and in fact, that form might get you into trouble. So here's an example in the case Xang vs. schau. It's out of the fourth district down here in Santa Ana, that was a wage in our case, there was an order denying a motion to vacate the judgment. And then the appellant filed a notice of appeal using the Judicial Council form. The court dismissed the appeal because orders granting summary judgment and denying a motion to vacate such orders are not themselves appealable orders.

Jeff Lewis: Right. And the court could have just left it at that. But instead the court went on to point out technical defects in the form notice of appeal, the court said that would appellant check the box for, quote, motion to vacate summary judgment, close quote, the appellant had failed to specify the code section authorizing the appeal, and that specifying the code section was required.

Tim Kowal: Yeah. And I thought that was a curious comment by the court because and by curious I mean, it was not correct. You You do not as the appellant have to identify the authority for taking up your appeal. All you have to do the only things that the rules require is that is that the notice of appeal be signed, that it'd be served and filed in the Superior Court, and that it identified the judgment or order being appealed from.

Jeff Lewis: Right, right. But the Judicial Council form a lot of people use does have a space calling for the code section that authorizes the appeal.

Tim Kowal: Right. Right. And so the court seized on that here and suggested that somehow the appellant had had filed a defective notice of appeal. So beware using that Judicial Council form as this case suggests, it sometimes gives the court ideas that other things may be required in your notice of appeal. Okay, next case and back in Episode 10. Just our just our last episode we discussed with appellate attorney Alan yaku Olson about how Courts of Appeal deal with non appealable orders. And there's a recent Family Law appellate decision involving a non appealable order. But the court didn't seem to be troubled by the non appealability. In marriage of sellers a second district case and the Family Court made a procedural oversight by neglecting to enter a judgment. The order following trial instructed that a judgment Be prepared by wife's counsel, but apparently counsel forgot to do so because none was prepared. So husbands simply appealed from the non final order after the trial. Yeah,

Jeff Lewis: Was there anything else the appellant husband could have done here maybe filed a motion for code of civil procedure section 664. To enter judgment?

Tim Kowal: Yeah, under that, under that section, the clerk does have a ministerial duty to enter a judgment after a final order has been has been entered. So I've done that in the past. And I've had that granted. But at any rate, the husband didn't do that and simply appealed from the non appealable order. But fortunately for the husband, the court was not troubled by this. And you may you may want to use this quotation from the case if you are ever in the situation where you were forced to appeal from a non appealable order. And this is supported by published authority. So bookmark it for your files, quote, in the interest of judicial economy, we consider the court's ruling to be a final appealable judgment. And the case cited is headwall versus pcmb, LLC, a 2018. decision. So there you have it, Jeff. Well, appealability is absolutely jurisdictional. Meaning if you check the wrong box on the notice of appeal form or filed a day late, there's nothing can be done, except that is in the interests of judicial economy.

Jeff Lewis: I don't think that word means what they think it means.

Tim Kowal: that seems like the exception you can drive the truck through or that what what do they call the exception that swallows the rule? Right, right.

Jeff Lewis: All right. Let's move on past the cases and talk about a few news and updates regarding the Courts of Appeal.

Tim Kowal: Yeah, you had mentioned to me that you pointed out in a case that that that we're working on together There was a recent transfer request. made by the Baker was the sixth District Court of Appeal in conjunction with the fourth district third division to transfer a whole slate of cases from the sixth district to the fourth, to the fourth, third. Yeah,

Jeff Lewis: we talked about earlier efforts by private attorneys to point out a backlog in the courts up north, and how the Supreme Court should transfer them kind of sua sponte. Here, and in case we're working on about 10 or 20. cases were put together on a list and the clerk with a notice and consent the receiving district, the fourth Appellate District Division Three, made a request to the Supreme Court to transfer the case. It'll be interesting to see if the California Supreme Court actually does something with the transfer request made by the overburdened clerk or clerk for the overburden court with the consent of the clerk for the receiving court.

Tim Kowal: Right. And the reason this was so interesting when you raised it is because we've been talking about some of these efforts by by appellate specialist john Eisenberg, who has been writing in the daily journal and petitioning the Supreme Court to have a whole slate of cases that are that have been languishing criminal cases languishing in the third district court of appeal. They have a terrible backlog. And in a recent daily journal article, he noted that I didn't know this, Jeff, under code of civil procedure, section 44. oral argument in all criminal cases are required to be heard before before our oral argument can go forward in in civil cases, and the third district apparently has been violating it violating that section for some years. Yeah.

Jeff Lewis: I never knew about that rule, either. It's interesting. It's and and Eisenberg is like a dog with a bone on this issue. He will not let it go.

Tim Kowal: Well, it's to his credit. I think there's he also goes on to note that the that there's a rule in federal courts, that Criminal Appeals that extend beyond two years from the filing of the notice of appeal, or more than 11 months from the completion of briefing to the time of the filing of the opinion gives rise to a rebuttable presumption that the state's appellate process is ineffective, making the appeal a, quote, meaningless ritual. And he cites the 10th circuit case in Harris versus champion and Eisenberg goes on to note that every one of the third districts 250, long delayed Criminal Appeals has crossed that line.

Jeff Lewis: Well, unbelievable. Well, stay tuned. We'll see if the Supreme Court acts on the on the request at least made by the overburdened court in our case.

Tim Kowal: Yeah, we'll see. I think I think you're probably your hunch is probably right, that that the court is more likely to grant transfer requests if they're initiated by the by the district courts themselves, rather than by simply another just a member of the bar. But I continue to think that the john Eisenberg's efforts here are have merit.

Jeff Lewis: Another interesting issue that came across my computer this week, and it doesn't fall under the headline of breaking news or courts transferring cases, but it's just, I fall I fall it under the category of things I learned while doing this podcast, and that is jury instructions, whether they're published or not, are not themselves the law and shouldn't be cited. In appellate briefs. I came across a couple of the Court of Appeal decisions, one being Evans v. Hood Corporation from 2016. And People v. Morales, a California Supreme Court decision from 2001. I found this proposition o law just super interestin because many times at the tria and appellate level. I see CACI or the Crim Pro, or the Crim j ry instructions being cited in b iefs all the time.

Tim Kowal: Yeah, yeah. When you mentioned that to me, I suddenly felt defensive and felt the need to explain why I had cited CACI, myself in certain briefs n the past.

Jeff Lewis: You felt like you were in the yearbook? I was

Tim Kowal: Yeah, I made myself unintentionally conspicuous. And now I think, as I mentioned to you, when you when you told me that, I think CACI is is is uch a comfortable resource for oth members of the bar and the ench that I still think it's robably worth citing in cases here you're just outlining the lements of them, but I would ot, I would not regard that as ufficient.

Jeff Lewis: Yeah, perhaps best practices, CACI plus a citation o the use note underneath ACI, which is usually pretty s bstantive.

Tim Kowal: Correct. CACI plus s the should be the rule. Okay. nd then there was another nteresting comment courtesy of en Shatz and his excellent Southern California Appellate News Blog, talking about the governor and the legislature's plans for post pandemic proceedings in the trial courts. Jeff, and a lot of my conversations with trial counsel over the last several weeks and months has been what is going to happen when we get back to normal so to speak, is there going to be a normal or are some of the elements of virtual trials and virtual proceedings going to continue on and be part of our new normal and apparently, there's been an effort a proposal by Governor Newsome to apparently to preserve some of the elements of our virtual proceedings, but those have apparently not been accepted. At least not immediate by the legislature and as Ben shots reports from I believe he's quoting from a daily journal, or daily reporter article, he makes this comments about noting that after although negotiations are still proceeding between the governor and the legislature, Tuesday's vote by the subcommittee did not killed Newsom's proposal which would give the Judicial Council broad authority to set remote use rules. The idea backed by some judges and the plaintiffs bar can still be negotiated in ongoing budget talk among legislative leaders and the governor. But it does point to the influence organized labor groups representing court staffers have on Democratic lawmakers who hold super majorities in both legislative houses. And Jeff, that reminded me of something our federal courts, as you know, have excellent electronic audio recording systems for creating appellate records. And California's legislature once tried to implement that in our state courts, but it was killed by the court reporters lobby. So when I read this story about the court staff lobby after just reading about and talking about the terrible court backlogs in some of our districts, I wondered about the extent to which our lawmakers might see our justice system as some form of jobs program.

Jeff Lewis: Yeah, that's a fair point. I gotta tell you, I worry more about this access to justice issue. They are folks who are having to pay a lawyer for four or five hours to travel to attend and come back from a court hearing, can't afford to have a lawyer whereas a 30 minute zoom appearance might be affordable. And so there's a real access to justice issue. Also, the ability of people in far flung counties to retain, let's say, counsel for more urban areas will be impacted by whether or not the courts routine remote proceedings, I'm a big fan of allowing remote remote proceedings and post pandemic some of these proceedings or these processes are retained.

Tim Kowal: Yeah, we'll have to keep keep our finger on this store again, see, see where it goes. Because I'm very interested to learn. I do think there's a lot of merit to to a lot of the virtual technology that that has been rolled out, especially in the court of appeal. I would expect those those will stay in place in the Did you disagree, Jeff?

Jeff Lewis: I don't know Tim, maybe I'm being over generalized, but in the court of appeal, I think the justices want to see you in person if they want to see you at all. And I suspect in the court of appeal, those remote proceedings will be the first to go. That's my prediction.

Tim Kowal: Hmm, interesting. Well, in the in the trial courts anyway, it seems like the ball is very much in the air.

Jeff Lewis: Well, that wraps up this episode.

Tim Kowal: If you have suggestions for future episodes, please email us at Cal That's ca l In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis: See you next time.

Announcer: You have just listened to the California Appellate Podcast, a discussion of timely trial tips and the latest cases in years 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 calp That's ca l p Thanks to Jonathan C ro for our intro music. Thank y u for listening and please j in us again