Carrot & Stick: Treble Damages in Business Tort Cases, and Appellate Sanctions

Timothy Kowal, Esq.
August 9, 2022

Business litigators need to know about the civil-theft remedies under Penal Code section 496. After some appellate courts expressed distaste for awarding treble damages and attorney fees to garden-variety business torts, Tim Kowal and Jeff Lewis discuss the California Supreme Court’s opinion deciding the question:

Yes, it seems a little surprising—but yes, that is what the statute says. In your next fraud, conversion, breach of fiduciary duty, or even breach of contract case, consider whether your facts fit Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081). If so, treble damages and attorney fees under section 496 may be supported.

Jeff and Tim also discuss what to do when after a judgment is reversed but an appeal of a post-judgment fee award is still pending. The answer suggested by Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC (D4d3 Jul. 20, 2022 no. G059899) 2022 WL 2824967 (nonpub. opn.) is: consider a stipulated reversal.

Finally, two appellate courts suggest different attitudes toward appellate sanctions. Shiheiber v. JPMorgan Chase Bank (D1d2 Jul. 26, 2022) No. A160188, did not issue sanctions, but urged the bar to think twice about “clogging the docket” with frivolous appeals and distracting the court from more important work. The court in Pop Top Corp. v. Rakuten Kobo Inc. (Fed. Cir. July 14, 2022) No. 2021-2174 awarded $107,000 against what the dissent suggested was merely a “weak case.” But as the dissent warned, the right of appellate review applies even to weak cases.

Links & other items discussed in the episode:


Tim Kowal  0:03 
The judicial burden of reviewing a weak appeal or reviewing one sided argumentation does not warrant the sanction of award of attorneys fees. Welcome to

Announcer  0:13
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 colwall. The California appellate law podcast is a resource for trial and appellate attorneys Jeff and I are both appellate specialists, but we split our practices about evenly between trial and appellate court. In each episode of this podcast, we try to bring our audience of trial and appellate attorneys some legal news and insights that they can use in their practice.

Jeff Lewis  0:48 
In a quick announcement, this podcast is sponsored by casetaxt, casetexa, a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast appeal to subscribers since 2019, and I highly endorse this service listeners of the podcast will receive a 25% lifetime discount available to them. If they sign up at That's

Tim Kowal  1:16 
Okay, and in this episode, we're going to cover some recent important cases that we've come across that have struck our eye and that might be of some use to our audience, these cases cover for business, tort litigators, a recent Supreme Court California Supreme Court case that affirms the use of the powerful civil theft remedies under Penal Code Section 496. In business tort cases, and on a point of appellate procedure, we're going to cover a couple recent case that reminds about the possibility of using stipulated reversals of a attorney fee award after the underlying judgment is reversed. And finally, a couple of recent cases about sanctions for frivolous arguments on appeal. Okay, so turning to our first case, on penal code section 496. Now, civil trial attorneys have long had an industry secret if you're in the know. So say you are suing over an unpaid loan. And if the borrower never intended to pay back the loan, and you can prove that intent, then that's not only a breach of contract, it's also a form of theft by false pretenses. So you could not you not only can assert a cause of action for breach of contract, but also a fraud cause of action. And under Penal Code Section 496, civil theft is punishable by treble damages and attorney fees. So for those in on the secret of if you are aware of 496, then it's a powerful tool in the business lawyers toolkit. But there's been one problem for the past couple of decades and civil business tort lawyers have been using the Penal Code 496 Is that courts really don't like section 496. Judges worry that lawyers will tend to overuse it and turn every garden variety law loan or business tort case into a civil theft case that results in treble damages and attorney fee awards. So, as a consequence of that distaste for applying for 96 to civil cases, there arose a split of authority with some cases enforcing section 496 and other cases refusing to enforce it. So breaking the split the California Supreme Court kept the powerful civil theft remedies intact. In the case the case name is serie investment LP versus far Condon poor. It is a July 2022 California Supreme Court case in which the Court held that the civil theft remedies under 496 up did apply to a case involving a diversion of partnership cash now the the facts of Serie involves a pretty garden variety business toward action. There are two partners who are alleged to have diverted partnership assets to themselves very via the various trusts involved in the partnership. The jury in the first trial awarded a quarter million dollar in damages plus punitive, which was reduced by the judge to about $725,000 Each, which wasn't a good outing for the defendants, but it wasn't exactly devastating. They wound up doing worse after their their appeal. They did win the appeal on an ice technical issue and got the judgment reversed and remanded for a new trial. But at that point, the defendants refused to respond to discovery despite a court order and the plaintiff got so the plaintiff got terminating sanctions against the defendants. In this time around the plaintiff sought remedies under Penal Code Section 496, which the plaintiff had not done the first time around. The plaintiff got treble damages and attorneys fees, and the court entered judgment against the defendants for almost a million dollars in damages. $2 million in treble damages under 496 and 4 million in punitive damages. Now the punitive damages and the treble damages were duplicative. You can't get both. And one interesting thing when when the trial judge asked the plaintiff to choose Do you want the the treble damages or do you want the punitive damages? Jeff, the plaintiff chose the treble damages Even though treble damages were only 2 million, the punitive damages were 4 million. I wonder if my suspicion is that the plaintiff figured that well, punitive damages can be challenged on appeal for a new trial motion for being excessive, if they are, you know, more than the net worth of the of the defendants or for other reasons. And the treble damages are set by statute and less subject to challenge. And I wondered if, if you think that was a shrewd move by the plaintiff in choosing treble damages rather than the punitive damages, even though the punitive damages were twice as much?

Jeff Lewis  5:34
Yeah, you know, that's interesting. I wonder also whether or not in bankruptcy court, statutory treble damages versus punitive damages are treated differently for purposes of dischargeability. Haven't looked at that issue. But it's interesting election that the party made.

Tim Kowal  5:50
I hadn't thought of that either. That's also an interesting consideration. So ultimately, the trial court entered judgment against the defendants for over $7 million. Remember the judgment after the first trial had been only $1.5 million. So the plaintiff quadrupled the amount of damages after the first judgment being reversed and getting a second trial. So the defendants appealed the aspects of the judgment as improper under Section 496. And the Court of Appeal agreed with the defendants, but then the Supreme Court granted review and reinstated the penal code for 96 penalties. But the court didn't throw open the floodgates. The court was did agree that there were some concerns about section 496 being too broadly applied. And the Court said it gives pause and justice Groban joined by Justice Krueger concurred in the majority opinion to note that they do not read the majority as endorsing civil theft penalties in most consumer or commercial transactions. So the upshot is that if you have a civil case, involving fraud that looks or smells something like theft by false pretenses, consider seeking remedies under Penal Code Section 496 Subdivision C. But don't get too creative. Under Siri investments, policy concerns, do give pause, even though they're not a valid basis to refuse to enforce section 496. So try to look for that there. There are three cases that the Supreme Court analyzed that supported damages under Section 496 tried to get your case to fit under those types of fact patterns and don't get too creative. Or else you might, you might run afoul. Yeah, yeah, concerns.

Jeff Lewis  7:33 
Thank you for briefing this case, I wasn't aware of this civil application of this penal code. It's another great tool in the toolkit. So thank you

Tim Kowal  7:42
know, I can admit to falling prey to these to getting too creative. Because ever since I first learned about section 496, every time I get a breach of loan case, I'm always looking well, did they make any payment because if they didn't make any payment, then maybe we can argue that they never intended to make the payment. And so the loan was, was solicited under false pretenses. And so we can we can shoehorn a section for 96. cause of action there.

Jeff Lewis  8:07
Yeah, like, yeah, to a hammer. The whole world looks like a nail, I see anti slap issues in every case I look at so I get that.

Tim Kowal  8:15
Yeah, yeah. Okay, let's move on to the next case I wanted to talk about and, Jeff, I've asked you about this in the past, but stipulated reversals of a fee award. So here's a common scenario when that had a rather uncommon resolution. So let's say you've appealed a judgment. And there's a there was a post judgment fee award. And you've separately appealed the attorney fee award. Now, now, let's say that you are successful and appealing the underlying judgment. So the underlying judgment gets reversed. But what happens to the fee award? After reporting the victory to the client, you suddenly remember, you know, what do you what do you do with this fee award? You still have to brief it and get an opinion on it, or does it just go away automatically. And this is the scenario that happened in mid Wilshire property LP versus Dr. Louisville. There have been many installments of this case. I think there were three or four prior opinions. In this case, the appellant had reversed a judgment but briefing had not even begun in the separate appeal of the fee award of almost a million half a million dollars. So here's what the parties did there. They filed a joint stipulated request to summarily reverse the attorney fee award, and then the appellate court granted it. The court did make a few comments about the party's request, noting that some concerns about the burden involved in a stipulated reversal under Code of Civil Procedure section 128 sub A ordinarily a stipulated reversal of a judgment is very difficult to meet. And that is Hardesty versus Hinton and Alfred here, though those concerns were not really important because the parties were correct. That reversal of the fee award was inevitable after the judgment had been reversed. And I had asked you in the past Jeff, if if I'm appealing a judgment and then there's a post judgment fee award heard that, you know, maybe the fee award, maybe I've got a couple of issues I could raise on appeal. But I'm really not banking on getting it reversed independently, I really just want to, I want to make sure that it gets that it goes away if I win the appeal. And maybe I'd also like to stay in forcement, the of the fee and cost award pending my pending my appeal of the underlying judgment. And I'd have to have that that fee and cost award appealed in order to invoke the automatic appellate stay of fees and costs. What do you think, Jeff, do you have any any advice on that approach?

Jeff Lewis  10:32
I don't know that I would ever counsel a client to appeal, something where you didn't have a meritorious argument or for purposes of delaying enforcement of judgment. I think the best advice there is to counsel the client to bond around it and hope for the best and the main appeal.

Tim Kowal  10:49
Well, I can't the bond, where would the bond come in? You can't the bond doesn't stay enforcement. Unless you appeal it. I guess you could enter it into a stipulation with the other side, please don't enforce it. I'll give you a bond.

Jeff Lewis  11:03 
Yeah. Yeah. I think that would be just about the only approach you could take there. Yeah. But you have to sign your name to a notice of appeal and then fight as a sign your name to briefs where there's not fantastic arguments in support of the appeal on the fee motion? I don't know.

Tim Kowal  11:21
Well, we're talking about that. There's a difference between a non meritorious appeal and a sanction. Oh, or a frivolous appeal. Yeah.

Jeff Lewis  11:28
Yeah. Yeah, I suppose a clever attorney could always find a decent argument to raise.

Tim Kowal  11:33
Well, of course, we're all clever attorneys here. All right. So the tip I came away with from the mid Wilshire property case was if you've appealed a cost award, and it's not consolidated with your main appeal, you might try to draw the court's attention to it in your briefing, let the court know that, look, if you're considering reversing the judgment, maybe maybe also order the appeal of the fee award dismissed. And with the with the underlying fee award being vacated, as a result, so that hopefully the court will also dispose of the cost appeal at the same time as the merits appeal. Yeah. All right. The the third case or in actually this is a pair of cases, has to do with appellate sanctions. So this is the other the other end of this conversation, we were just talking about the difference between maybe an appeal it's not meritorious, but but we also want to certainly make sure that we're not filing any appeals that are not only not only lack merit, but are sanctionable. You can be sanctioned for of course lying to the to the court or for failing to disclose key authorities. But there are two recent cases that remind the bar that appellate sanctions can be imposed simply for making really bad arguments. So the court published a stern admonition to the appellate in Shai Hiber vs. JP Morgan Chase Bank, this is a July 2022 case. This this case stands is a warning to other attorneys against quote clogging our appellate docket with meritless appeals. The court didn't actually go forward and issue sanctions here. But that was only because the respondent didn't actually file a motion for sanctions. The appeal there arose from an award of sanctions by the trial court under a Code of Civil Procedure section 570 5.2 that related to a plaintiff's failure to comply with the local rules in in this case, it was failing to meet various pre trial filing deadlines such as timely filing motions and eliminating and trial exhibits. The trial court was extraordinarily patient and indulgent toward the offending plaintiff's attorney and reduced the requested $25,000 sanction to just $950 Being mindful to stay under the $1,000 trigger to require automatic reporting to the State Bar. But the plaintiff appealed. Anyway, the Court issued a lengthy opinion thoroughly analyzing the statutory structure and holding that sanctions under Section 570 5.2 does encompass failures to meet pre trial filing deadlines, and does not require a finding of bad faith. The when I go, let's let's just point out

Jeff Lewis  14:09
here, it's a $950 sanction. And this lawyer probably spent more than $950 in costs to file the notice of appeal. It's shocking to appeal this kind of sanction order. But yeah,

Tim Kowal  14:24
go ahead. You get the idea. There's something else going on under the surface here.

Jeff Lewis  14:28
Maybe maybe.

Tim Kowal  14:30
So the Court of Appeal went on to note that the plaintiffs briefing was to put it lightly substandard. So specifically, the court noted the plaintiff did not address a case that was directly on point. The plaintiff, quote, makes no attempt at any valid exercise and statutory interpretation. The plaintiff, quote, does not engage at all with the statutory text. The plaintiff, quote, provides no pertinent legal authority and reason relies on inaccurate citations to the California Rules of Court and irrelevant staff. jute and a bad misreading of irrelevant case law. And finally, the plaintiff, quote provided us virtually no assistance in reaching our decision. Now, when seemed the most damning to my to my eyes. Jeff, the whole idea of briefing or at least the the holy grail of appellate briefing is to write something that will later find its way into the opinion. And not only did none of the plaintiff's arguments make it into the into the conclusion, it was rejected as being of no assistance whatsoever. The court reminded counsel about her duty of candor under Rule 3.3 of the rules of professional conduct. And the court characterized plaintiff's appellate representation as, quote, ultimately empty advocacy. And then Jeff, the court went on to make this policy adverse observation. It's a little bit lengthy, but I wanted to ask a question about whether this was appropriate to put in a judicial opinion. So here's the here's the courts policy observation, quote, There are presumptively innocent individuals who would who could be any one of us who have been incarcerated for crimes they say they did not commit because of errors in the conduct of their prosecution. There are parents who could be any one of us who have been separated from their children because of errors in the application of our juvenile dependency laws. There are children who could be any one of ours, who often against the backdrop of difficult life circumstances have made errors of judgment that have brought them to the attention of our juvenile delinquency courts, sometimes resulting in the imposition of terms of rehabilitation that may go unwarranted, excessive or unduly harsh, we could go on when counsel files and appellate brief in a civil case such as this, that is so utterly lacking and content sufficient to persuade us of the claims they raised on appeal by presenting arguments and conclusory fashion failing to engage in any meaningful analysis, citing no potentially relevant authorities and failing to address authorities that plainly are relevant. It is not it not only dooms their clients appeal, it also clogs our appellate docket and inhibits our ability to timely review and decide other cases, including those involving interests have the utmost personal urgency and importance. And, Jeff, the what I wanted to ask you about this observation of the courts about frivolous appeals clogging our dockets is that the court seems to suggest it's not just clogging the docket for meritorious matters, but for also also for special kinds of matters. And and the suggestion of the court is that there are some matters that maybe are more equal than others, like those involving innocent incarcerated litigants or children. I think it's one thing for courts to warn litigants not to file cases that are meritless. I think we can all understand the implicit importance of that. But do we want courts to treat certain classes of cases as intrinsically more important than others?

Jeff Lewis  17:46
Well, you know, I read that case, maybe a little differently than you did you know, they didn't this court did not issue sanctions here, mostly because neither the other side didn't request it formally or in the right procedure. I think it's entirely appropriate for a court of appeal when it's reaching its tipping point in terms of meritless appeals to announce to the bar and a published decision. Hey, we're busy here with these other cases, we're getting tired of frivolous appeals, you're on notice appellate bar, that sanctions are coming. I think that's entirely appropriately I maybe wouldn't have phrased it this way. And, you know, I think by number of cases, maybe lemon law cases probably impact the Court of Appeal more than some of these dependency and criminal law cases that are referenced here. And certainly lemon law cases are not the most important cases in our society. But yeah, I think it's entirely appropriate for the Court of Appeal to announce sanctions are coming for the next one.

Tim Kowal  18:40
I have no problem with the sanctions for meritless appeals, I just wondered about juxtaposing it with other classes of cases and the idea that there is a there are higher echelons and lower echelons of cases that not only is this meritless, but it's only about money in these lousy money cases are boring to

Jeff Lewis  18:56 
us. Yeah. Yeah. No, that's a fair point.

Tim Kowal  18:59
Well, here's so and here's the other case I wanted to I wanted to raise to our audience attention. poptop Corp versus Rakuten Kobo Inc. Now it's out of the Federal Circuit, but the appellate there was hit with a whopping $107,000 in sanctions, so I thought it deserved a mention and also, more importantly, because of the dissent, think raises an important point. So in the defendant, in this case, Kobo obtained a summary judgment of plaintiff pop tops patent infringement claim poptop holds a patent over a text highlighting code and ebooks so if you ever use Kindle or another ebook reader, and you'd like to make annotations or highlight specifically in your ebooks, apparently poptop has some sort of patent that covers certain kinds of highlighting code in ebooks, and poptop claim that it's patent covered Cobos ebooks because they're ebooks apparently have text highlighting capability and they have codes, so therefore it must fall under our patent somehow. Kobo, however, showed that their text highlighting is handled by code in their app and not in the ebooks themselves, so they made this distinction that it took it out of the poptop patent. And the trial court agreed with Kobo and granted summary judgment for Kobo poptop appealed, but pop tops problem was that it never addressed that core argument of Cobos and under federal rule of appellate procedure 38. A federal court of appeal may award just damages and single or double cost to the appellee. If we determine that an appeal is frivolous, and they did hold that pop tops appeal was frivolous here, the courts have a long standing policy of enforcing rule 38 vigorously. And what else did the court say here that the judgment by the tribunal below was so plainly correct and the legal authority contrary to appellants position, is so clear that there is really no appealable issue? And an appeal is frivolous as argued when the appellant engages in misconduct in arguing the appeal? So here poptop quote, blatantly misconstrued Cobos position in arguing that the parties disputed the scope of the patent. The court found that pop tops misrepresentation of Cobos position warranted sanctions. And there's one interesting citation here. More flow industries held that an appeal was frivolous, as argued where the appellant quote manufactured arguments in support of reversal by distorting the record. So the court awarded sanctions totaling over $107,000. Now, and here's where Judge Newman comes in with a dissent from the sanctions award. Judge Newman agreed that the appeal did in fact lack merit, but judge Newman stressed that sanctions for raising unmeritorious arguments implicated the rights to due process and appellate review. And that's why normally sanctions are not awarded merely quote, simply because the appellant has a weak case, the right of appellate review applies even for weak cases. And Judge Newman went on to note precedent reversing sanctions, where the appellants arguments could be said to fall just within the ragged edge of the penumbra surrounding legitimate advocacy, and further quoted that the line between the tenuously arguable and the frivolous can be an uncertain one. And sanctions should not be imposed so freely as to make the parties with legitimately appealable issues hesitant to come before an appellate court. Too easy sanctions can have an undue chilling effect on the right to appellate review. And finally, Judge Newman close with this note, litigation by its nature reflects the spin of advocacy and the right of appellate review as a safeguard to the rule of law. The judicial burden of reviewing a weak appeal or reviewing one sided argumentation does not warrant the sanction of award of attorneys fees. And I wondered, after reading, Judge Newman's dissent here, and then reflecting back on the first case we talked about in Shai Hiber, I was taken with the due process, observations judge Newman made and the importance of appellate review, I thought the parting observations and Shai hybrid that we had talked about a moment ago, Jeff just didn't sit right with me. But the courts frustration with frivolous arguments and substandard advocacy, advocacy certainly is justified. But the court, I think, should direct their frustration at counsels lack of diligence without suggesting comparisons to other types of cases in the courts docket. I wonder what you thought if you if anything in judge Newman's dissent changed your perspective on appellate sanctions?

Jeff Lewis  23:27
No, although I will say, look, in the first case we reviewed today, the big issue was there was no citation to relevant authority. There was no meaningful advocacy, no helpful arguments in the appellate briefing. In the second case involving a federal appeal. It didn't seem like the appellate advocacy fell below the mark. It just was a weak case. But yeah, in short, no, I think I see a lot of frivolous appeals. And maybe I'm just getting old and impatient and irritable. But I think Courts of Appeal don't sanction these cases enough.

Tim Kowal  24:06 
Not enough sanctions, according to Jeff, what about what about in the this poptop case, as you mentioned, it was you could see judge Newman's point that maybe this is merely a mirror, you know, an unpersuasive case, a weak case. And yet, and yet the appellant got hit with $107,000 and appellate sanctions. Yeah, I think I would have sided with Judge Newman in this one. What about you?

Jeff Lewis  24:27

Yeah, you know, it's hard to say I don't do this kind of law in terms of the underlying claims. So it's hard to assess whether or not it was truly frivolous. But I say you got two federal judges issuing a great issue sanctions here. I tend to I tend to favor issuing sanctions here. Okay. You know, what I found interesting is there was a line in the decision about whether to make it jointly and several between the lawyers and the client. And you know, it's always an interesting thing, the decision to appeal to clients decision, but the lawyers are usually egging them on. Yeah, you should appeal Are you got a good chance. And once the notice of appeal is filed, it's really the lawyer who's responsible for 99% of the oral advocacy and the written advocacy and to to sanction clients for attorneys. misconduct. It's interesting. I was joint and several role here. And if anything, raises an eyebrow for me, it's the decision to sanction the client in these circumstances.

Tim Kowal  25:26
Hmm. Interesting. I hadn't thought about that angle of it. So you would you'd put more more of the fault at the feet of the attorneys, at least the the appellate attorneys, is that, is that analysis the same at trial? Or do you have a different approach there?

Jeff Lewis  25:38
Maybe, maybe it's because it's the rare day when you anok excuse me, CA, when you when I see a case, imposing sanctions for the mere filing of a notice of appeal, or even having the temerity to appeal, as opposed to the briefing, and the record preparation and the delays, et cetera, which is really in the hands of a lawyer.

Tim Kowal  25:58
Right. Okay. Well, that that covers the cases that I wanted to talk about, Jeff, I think we have some news and tidbits that we wanted to cover as well. Yeah, there

Jeff Lewis  26:06
are a few I wanted to cover, I do a lot of work in the social media and defamation space. And every few weeks, I get a call from a potential client who has been blocked on social media by a politician, and they want me, me to help them write a letter to the politician to get them unblocked. And a new use case just came down by the Ninth Circuit. It's Garni, a versus O'Connor Ratcliffe. And we'll put a site in our in our show notes about this. And this was the first time the Ninth Circuit has squarely held that when a public official uses social media to carry out their official duties, they, these officials cannot block social media accounts that are critical. And it's an interesting case, because it's not the first circuit to hold this, that it's a violation of the First Amendment to block critical social media accounts. On the other hand, on the flip side, I get a lot of people who are upset that Twitter or Facebook can't be held accountable for wholesale blocking certain accounts, certain politicians. So I know it's a result that leaves many people feeling uneasy, but in terms of my personal practice, and my representation of people who've been blocked, it's gonna make life a lot easier for me to make demands on on politicians to unblock their Twitter accounts.

Tim Kowal  27:19
Yeah, I continue to find this a difficult area of law for me to me to understand that the users of the accounts cannot cannot block people from accessing them, but the platform's themselves can shut the can shut the whole space down. So is it a is it a public forum or not?

Jeff Lewis  27:38
Yeah, I think the key facts here, at least in this Ninth Circuit case is these politicians started these accounts, when they're campaigning for office, they put their official official website on their Twitter accounts, and they use these accounts to communicate with their, with the public about school business. These are school officials. And those are the key facts. If a politician maybe had a private account or an account that wasn't official, maybe the outcome would have been different here.

Tim Kowal  28:05
What about? I believe that I'm not, I'm not a Twitter expert. But my understanding is that users can make complaints about other users. And maybe they can they can only block the users. So that particular user cannot see the other users posts. But can the user is there a way for a user to make a complaint against another user that prevents their access to that, to that forum to that public officials

Jeff Lewis  28:30 
feed? Oh, sure. Twitter, if it receives enough complaints about a certain account, that person will lose access, can't post and presumably maybe can't even read their old posts?

Tim Kowal  28:40
Yeah. Really, again, it just my confusion is, at what point does do First Amendment rights attach to a Twitter feed? And is that the whole panoply of First Amendment rights? Or is it circumscribed by by the social media proprietors the platform's rules and regulations?

Jeff Lewis  28:59 
Yeah, you know, it's a relatively new case, we'll be interested to see if somebody decides to take this up to the Supreme Court. And if the supreme court grants review, interesting, see what happens, because I think there's a split of authority on this particular issue of whether or not a First Amendment action can be premised on blocking someone's social media account.

Tim Kowal  29:18
Yeah. All right. Interesting case, one to follow. All right.

Jeff Lewis  29:21
And then a second thing I wanted to talk about on today's podcast is not a case, it's a new law. I'm gonna get on my soapbox a little bit here. So my apologies in advance, you might, my listeners might hear some bias in my rendition of the story. I've been following SB eight, which is, you know, the Texas law that allows private lawsuits to be filed by private persons against anyone who helps someone get an abortion. And I've always thought that law was not intellectually honest because the basis of the law was to in a world where Roe v. Wade was still in place. The basis of that law was to say, hey, there's no government action here. It's private parties so there's no government restriction on abortion. Anyway, California has now taken an interesting twist on SBA, the Texas abortion bounty law, California this month just passed SB 1327, which allows private lawsuits to be filed against those who make, sell or distribute assault weapons in California. Unlike the Texas law, the California law places a $10,000 bounty that can be collected by private litigants, against people who sell or manufacture these weapons. Tim, I just think this law is dishonest. It takes an approach that there's no government involvement and taking or limiting gun rights, despite the fact that it's the intent and effect of this law. It's the intended effect of the California Legislature to limit gun rights and to say, oh, it's in the hands of private litigants. Therefore, there's no government action. I think it's completely dishonest. But in the same way that the Texas laws dishonest one interesting twist on this law is the law on its face says that if the United States or Texas Supreme Court ever decides to overturn or invalidate SBA, the gun law goes away. So the California bounty law only lasts as long as the Texas abortion law anyway. Yeah, my two cents about this new law.

Tim Kowal  31:12
Yeah, that's Yeah, makes it seem a little bit. It certainly puts a political tinge to it. It seems like tit for tat. And, yeah, I tend to agree with you. I haven't. I haven't thought through either these laws to the bottom to figure out what, but but I like you, there's something that doesn't sit right with me about about either one of them. And I but I can't quite articulate what it is. Is it just because, well, you can't make a law on these things. But you can, you can allow private enforcement of them. See, there's something that seems like an end run around it. But I I'm not sure if I'm confident to say that, that that in and of itself makes it inappropriate. Yeah, there is something clever about about it. And I can't tell if it's, if it's too clever by half, I suspect maybe they both are. But if they if one of them's right, or one of them is legitimate, then they're both legitimate. And if they are just one of them, just plain mischief, and the other is just plain mischief. So I think they both rise or fall on the same rationale. Yeah,

Jeff Lewis  32:17
they're, they're both illegitimate mischief. But it'd be interesting to see how it, how it all plays out. All right. You know, the final tidbit I want to share. It's kind of a crazy story coming out from the I think it was the Orange County Superior Court, I read about this. And above law, we'll put a site in our case notes about this above law article, there was a case in which counsel at the conclusion of a hearing, one of the lawyers announced to the court in open court, I want to say, Have a good weekend to my opponent. And I want to say, Have a good weekend to both counsel and repeated this phrase twice. I'll see you next Tuesday. See you next Tuesday. And the judge at the time made a comment about Oh, how nice of counsel to say that and many people know that. See you next Tuesday is a shorthand reference to a another nice word. And the lawyer the judge figured it out a few days later had a following meeting in chambers, and called the lawyers and I guess the lawyer said the comment admitted to it and chambers that he set it as an inside joke to his staff. He didn't think anyone would catch on to it. As a result of saying this statement on the record and then admitting in chambers to the judge what he did, the court took offense and has referred the matter to the state bar for disciplinary action, which I found really surprising. Well, first of all surprising the statement was made surprising he would own up to it in court and chambers, and then really surprised that it resulted in a state bar referral. I guess you got to be super careful. humor doesn't play well in court.

Tim Kowal  33:50
No, well, I I don't know whether I'm more offended by the vileness of the comment or it's unoriginality. Just just repost all the way around. But yeah, I like you. I'm shocked by the whole thing. I don't even know what to what what sort of punishment is due here. But yeah, I am offended by the whole thing. That this would happen in a in one of our courts. In the court that I'm most typically practicing by the way. I had a couple of tidbits one can footnotes get you sanctioned? Yes. Yes, you have experience on that point. The reason? Some lawyers defending meta platforms, which is formerly Facebook, involved in an antitrust action ran afoul of the DC court's rule according to an order from Judge James E. Boalsburg. The offending brief contained 19 footnotes, including several lengthy ones, including one that topped 150 words, the Court struck the brief for violating the local rule for attempting, quote to circumvent page limits by taking advantage of the single spacing that footnotes use. The court ordered counsel to file a new brief immediately with no more than five footnotes containing no more than 20 aggregate lines of text. The Federal Court and the District of Columbia as well as several other courts have warned brief writers against too many footnotes instructing that these drop down asides shall not be excessive. I think that's, that's good. Good rule if you do decide to use footnotes at all, do not IRQ the court by by using them excessively, or voluminously. I also picked up this tidbit that I thought I was bucked up by it as being a being a generalist and a specialist in any one substantive area of law. I appreciated this there was a short post about Seventh Circuit Judge Diane Woods latest law review article entitled, generalist judges and a specialist world judge would noted that there that quote, the need to explain even the most complex area to a generalist judge forces the bar to demystify legal doctrine and to make the law comprehensible. And I've always had that kind of intuitive sense that, that there is something that we generalist do have a certain advantage over specialists because we don't understand all the jargon. We don't understand a lot of the concepts intuitively we have to work our way through them. And so must our readers on the bench have to work through them. And so as we have freshly gone through the exercise of working through all of these very tough, nitty gritty, nitty gritty, substantive or areas laden with expertise, we are in a maybe in a better position to relate them to other generalists. Yeah. It's interesting, interesting perspective. All right. Well, that's, I think that's all we have for this week, Jeff.

Jeff Lewis  36:42
All right. Yeah, I think so. Again, we want to thank casetext for sponsoring the podcast each week, we include links to the cases we discuss using case tax and listeners of the podcast can find a 25% discount available to them if they sign up at That's,

Tim Kowal  37:01
and if any of our listeners have suggestions for future episodes, including guests or topics that we should cover, please email Jeff or me at info at cow And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. See you next time.

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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, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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