Cal Appellate News for Lawyers (Aug. 31, 2020)

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here.

NOT the Schoolhouse Rock Version of Cal. Supreme Court Review.
First, a chilling Third District decision says if a sheriff's deputy asks you to check on a neighbor, omits the fact the neighbor had whispered her call to the 911 dispatcher, with the result that you are near-fatally stabbed in the neck by the neighbor's murderer, you have no remedies except worker's comp.

So how did this get to the Cal. Supreme Court? Petition for review? No. Instead, a third party named John Hsu from Berkeley (not even in the Third Appellate District!) petitioned the Supreme Court to depublish the opinion. Mr. Hsu said he found the Third District's decision so chilling it ought to be depublished.

Did the Supreme Court depublish? No. It granted review. Did the Supreme Court reverse? No. It affirmed. Just another posse comitatus case. (Justice Groban, joined by Justice Chin, dissented: they think the deputy's statements & omissions matter.)

A bizarre case.


Preliminary Injunctions Covered on the CAL Podcast:
In a recent episode of the California Appellate Law Podcast, Jeff Lewis and Tim Kowal tell trial attorneys how to get an edge on their next preliminary injunction motion. Highlights:

  • In college Title IX investigations, the process itself may become a form of punishment. Successful use of preliminary injunction & writ procedures to extricate from "star chamber" proceedings may give a right to attorneys' fees under CCP 1021.5.
  • Did the trial court ignore important factors in making factual determinations? Then it may be PER SE REVERSIBLE on appeal.
  • Is the injunction MANDATORY in nature? Then it is STAYED on appeal.
  • Did the trial court fail to condition the injunction on a bond? Then the injunction is VOID!

Please tune in & share.... And please SUBSCRIBE in your podcast app!

Summary Judgment Appellate Tip:
In our previous episode of The Cal. Appellate Law Podcast (, Jeff Lewis and Tim Kowal covered Mosley v. Pacific Specialty Ins. Co. (E071287), a May decision out of the Fourth District, which reversed a summary judgment based on grounds never raised in the trial court. The decision offers comfort to any trial attorney who has awoken in the middle of the night, bolt upright, awash in horror, realizing a key argument was left not raised at the hearing the day before. Because, as Mosley nicely explains, it is for the party *moving* for summary judgment to carry the burden that judgment is required AS A MATTER OF LAW. A legal argument can never be forfeit by the nonmoving defendant's failure to raise it in opposition, because that goes to the moving plaintiff's initial burden.

But now we have learned that, a month earlier in April, the Second District issued a decision in People v. Braum (B289603, B289604), upholding a summary judgment against a defendant landlord, finding the landlord's legal argument -- challenging the city's legal authority to require a landlord to evict a tenant -- was forfeit because not raised in the trial court.

Curiously, the court published the decision...except for that analysis.

A petition for review has been filed. (And, unfortunately, was recently denied.) 

The statement of decision is a key time to bring in appellate counsel.
In a bench trial, the all-important statement of decision fills the empyrean role of the jury verdict. If you did not outline your appellate issues in the statement of decision, then I have bad news for you, because: yes, you did -- only, you may have outlined them very poorly. A nice recent blog post on this technical and tripwire-rich exercise discusses this:

The statement of decision is a key time to bring in appellate counsel. The crucible of trial often reveals new issues or subtleties in the case that may be raised on appeal. But if they are not raised in a statement of decision... forget about it!

An appellate trap for the unwary -- Designating the Record
If you designate less than all of the transcripts from trial, you have to specify the issues you will raise on appeal. This is not easy, because the designation of record occurs very early in the appeal -- just 10 days after the appeal is filed! If have seen lawyers step in this trap before, but now the trap has teeth: The appellant's failure (after respondent's objection) "precludes him from raising ANY points on appeal"!
Obey 8.130(a)(2) or else...
Appellate Bonds
Here is a nice article on the kinds of bonds and stays available pending appeal.   Hot tips for appellants:

  • If attorney fees have been awarded, the costs of a bond may be less than the exposure to judgement enforcement fees...something to consider.
  • Always have a CCP 918 motion ready to hand. (Email me, I would be happy to furnish a template.)
  • Consider a personal surety bond. Though you cannot bond yourself, you may transfer assets to have a spouse post a bond! Buzgheia v. Leasco Sierra Grove (1994) 30 Cal.App.4th 766

Appellate Bonds Without Collateral
If you represent clients on appeal, did you know you may be able to get an appellate bond without posting any collateral? I was pleasantly surprised when Arturo Ayala at CSBA helped our client obtain an appellate bond recently based solely on our client's financial position, without having to put up any assets.

It's these little details that can start to move the needle for your clients on appeal.

Law-and-motion in the time of Covid:
Should trial courts keep hearings on discovery motions & especially MSJs on calendar, for the good of fostering mediation & settlement? Good discussion on this Daily Journal podcast episode at about the 24 min. mark.

This may be useful:

When “a local court [seeks to] advance[ ] the goals of efficiency and conservation of judicial resources by adopting procedures . . . deviat[ing] from those established by statute, [it] thereby impair[s] the countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding.” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1353.)

(But: the Cal. Supreme Court recently denied our petition for review of an order indefinitely deferring ruling on an MSJ.)   Courts in the Time of Covid
Dispatches from some trial courts indicate that many departments may be too small to accommodate socially-distanced 12-person juries, and that parties may be asked to stipulate to 8-person juries, or else be transferred to a different department or courthouse. You will need to consider how this impacts your clients' ability to get a timely trial. But remember, Article I, Section 16 of the Cal. Constitution entitles litigants to a jury of 12:

“In civil causes the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.”

On Jury Waivers
When civil litigators finally get back to jury trials, expect a bevy of new local rules -- and even "local local" rules. But don't worry: missteps on such non-statutory rules cannot result in a jury waiver. Under Article I, section 16 of the California State Constitution, a jury trial can be waived only on grounds authorized by statute. Failing to comply with court or department rules may get you into hot water with the judge, including sanctions -- but striking a jury demand is per se reversible error.
Chen v. Lin, No. JAD19-10 (L.A. Super. App. Div. Nov. 14, 2019)

Eviction Moratorium to End Sept. 1
The Judicial Council recently voted to end the emergency rules halting evictions and foreclosures in California. Lawmakers had requested the Judicial Council extend the rules. But Chief Justice Cantil-Sakauye said -- absolutely rightly, IMO -- that it’s now up to the Legislature and Governor to act:

“The judicial branch cannot usurp the responsibility of the other two branches on a long-term basis to deal with the myriad impacts of the pandemic. The duty of the judicial branch is to resolve disputes under the law and not to legislate.”

Five months is more than enough time for lawmakers to act.

The Oxford Comma Is the Law of the Land
Among those who fail to respect the Oxford comma are lawmakers, sloppy thinkers and sloppy writers.

(Do you see what I did there? We Oxford comma advocates are a blast at parties!)

"A lawsuit over the absence of an Oxford comma was settled for $5 million"

A cardinal rule of brief-writing: Know your audience ...and for petitions for review at the Cal. Supreme Court, that audience includes... law students.
When Specious Strategies Work...
Will this one?

Plaintiff judgment-creditor gets this devilishly devious idea when the corporation defendant appeals: Why not just get a receiver appointed, and suggest that the receiver simply abandon the appeal, as an asset of the receivership?
So plaintiff does, and receiver does.

Will it work? Stay tuned.

Supreme Court Limits Regulatory Penalties Against Nursing Facilities A divided Supreme Court in Jarman v. HCR ManorCare limits private remedies against skilled nursing facilities, wiping out almost all of the $95,500 in statutory damages — $250 for each of 382 regulatory violations — awarded by a jury.

Are judges making light of making law?
Some judges are making a habit of deploying light-hearted pop-culture references in judicial opinions. There is an interesting conversation about this in the Pro Say podcast (ep. 151) at the 33 min. mark. (