In this special episode, Jeff interviews me about the best and worst things about appellate law. I talk about a couple of my favorite war stories, my approach to legal writing, and my favorite comedian.
Then to business, we discuss some recent cases, including appellate sanctions for trial court conduct, the nonappealability of arbitrator injunctions, and the publication of a recent family law opinion reversing a judgment for failing to provide a statement of decision.
Tim Kowal 0:01
inside jokes don't work in the law. All you have is the record.
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 Cole and Jeff Lewis.
Jeff Lewis 0:24
Welcome, everyone, I am Jeff Lewis.
Tim Kowal 0:26
And I'm Tim colwall provisionally licensed by the California Department of podcasting. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Well, Jeff, and I are appellate specialist who's split our time evenly between trial courts and appellate courts. And in this podcast, we offer some of our appellate perspective on various issues that arise and on trial and on appeal.
Jeff Lewis 0:51
Yeah, you know, two years ago, during the pandemic, when the courts were shut down, we had this idea of starting this podcast and today we've reached episode 30 of the podcast and in most of our episodes, we've had some guests to discuss their practice area or interesting aspects of appellate law. And today, I thought it would be a fun idea to commemorate episode 30. And change up the format a bit and take a closer look at our co host Tim Cole. Let me just read a little bit from your bio. Tim is a shareholder at Thomas Bogum associates in Costa Mesa. He uses both trial and appellate court remedies and specializes in developing unique legal strategies for its clients. Tim's trial and appellate victories total over $60 million. Wow. While in law school, Tim served as editor in chief of the Chapman Law Review, and before practicing law, Tim helped run a successful it sales and consulting firm in Orange County that continues to serve small businesses and individual customers in the region. He graduated from UC Irvine with a BA in philosophy, no surprise there as an alumnus of St. John Bosco High School in Bellflower. So, welcome to the podcast, Tim.
Tim Kowal 2:00
Glad to be here. Jeff, I'm reminded that, that you are the one who had the brainchild for this, this this podcast was your brainchild, and you invited me to be on it. And I'm so glad you did. It's been it's become just a lot of fun. It
Jeff Lewis 2:11
was my idea. But boy, did you blow it up with your effort and ideas and everything. So thank you for all you've done to turn this little hobby into a thing. Yeah,
Tim Kowal 2:20
it's been a blast.
Jeff Lewis 2:21
Let's jump right into the interview. Tim, tell our audience why did you become a lawyer?
Tim Kowal 2:27
Oh, well, as you mentioned, in my bio, I was I was doing computers for about six years after I graduated from UC Irvine and I was just kind of putting around becoming a lawyer was not part of a grand strategy or anything, you know that the closest I have to knowing what I wanted to do when I grew when I grew up when I was younger was I wanted to be Michael J Fox and secret of my success. Only I didn't I didn't trust my ability to change my pants and an elevator. So finally my my mom kept pushing me into what you know, why don't you go to law school? Why don't you go to law school. And finally after I kind of tired of slinging keyboards and setting up networks, I decided, yeah, I think I'd like to try to do something else. And so I went to law school and day one of law school, I thought Why did I wait so long? Because I just really loved it. Yeah, it's downhill from there.
Jeff Lewis 3:13
I had a similar experience. I didn't particularly enjoy undergraduate But boy did I love law school. I really enjoyed the classes. And yeah, it was life changing. All right, well, tell me tell us about one of the more interesting appeals or the trials that you've been a part of in your career,
Tim Kowal 3:28
you know, I have a few of them. Some of them are good experiences, and some of them are frustrating experiences. And I think that probably makes up all of our experiences as a lawyer, you know, it's never all up. And hopefully it's it's not all down either. So I'll tell you one, one good experience that actually came out of a frustrating experience we were in, we were in trial, my partner and I were in a in a trial on a contempt proceeding against the bad guy that he was not complying with the court's preliminary injunction to let our client back into the business that he had frozen them out of. And so we are in there on a contempt proceeding that had gone a couple of weeks. And this was a Muslim owned business. And the judge kept making these comments that well, the the contempt, nor was was was the elder in the family. And so we have to defer to these cultural differences. And we said, the hell you do this is a court of law. So finally, we decided what are we going to do if the judge has the thumb on the scale based on these cultural differences that shouldn't have any application in a court of law? We consulted with a with a retired judge that we know and, and on his advice, we we asked for an in camera proceeding to discuss this and to to make a record of it. We brought in our own private court reporter because we were calling into question, you know, judicial propriety judicial bias. So we had to have our own court reporter there. So there we are crammed into the courts chambers, the judge's chambers with that with two court reporters, the courts reporter and then our private reporter and discuss this issue very as diplomat equally as possible, but as as upfront as possible. And to his credit, the judge, even though denied that, that he would put any thumb on the scale, we stopped hearing any comments or rulings based on cultural differences. And shortly thereafter, we got a very favorable settlement in the case. So that was, that was a good a good outcome, a born of some frustration in the court. Another outcome that was that was frustrating and did not come to a good outcome. There was there was a we represented the judgment debtor. Okay. And there was there was an appeal. We were I was not appellate counsel, but I was kind of, you know, playing playing the gap role. So I was in between I was the the attorney helping with obtaining the bond and getting a stay of judgment enforcement pending the appeal, when the appeal was not successful. I had read the court of the Supreme Court decision, the name is escaping me now. And the Queen may be that pointed out that if you pay a judgment, if you satisfy it in full, then that cuts off the right to getting any attorneys fees for judgment enforcement, right that well, we've gone through a lot of judgment enforcement efforts. So there's going to be a big fee motion coming for judgment enforcement, why not just cut off that right? Show up with. But the exception is, if you if you try to give a cashier's check, or any other foreign form of payment other than cash, then the judgment creditor can simply hold on to it and not cash it, proceed to file the motion for fees and say, No, I haven't had the judgments not been satisfied in full because the check hasn't cleared. So the only way to actually take advantage of that supreme court rule and the Supreme Court actually contemplated this is to pay in cash, you should so we showed up, we had an armored truck show up at the office at the attorney's office with the cash it was about a quarter million dollars as I recall, and pay off judgment interest. So there's no dispute it was paid off in full. They still filed their motion for fees. And we thought we got him we will cite the Supreme Court case that says that, you know, that's paid off in full the right to attorneys fees for judgment enforcement is cut off. The trial judge simply said, I don't like that result. I'm going to allow the fees anyway. And at that point, that you know, there was there is no gas left in the tank to take up another appeal. And so there is where it was left the we follow the supreme Supreme Court's guidelines for how to for how to do this. And yet judges sometimes just don't like don't like the result. And so it's kind of a What are you going to do about it type of mentality that I find so frustrating?
Jeff Lewis 7:29
How does one go about hiring an armored truck?
Tim Kowal 7:32
How do we do we just I think your bank will will probably point you in the direction to someone who can do that. But there are private services private armored trucks you hire for that purpose.
Jeff Lewis 7:42
Who knew? All right, let's talk about what you like about appellate law. I'll tell you the reason I got into appellate law is just from a quality of life, work life balance. I was tired of all the trial work of my opponents making my life miserable with Discovery demands and discovery motions, you know, appellate law, you can be kind of master of your own universe in terms of your workflow and deadlines. How about you? What is the thing that you like most about appellate law?
Tim Kowal 8:06
You know, I've heard a lot of appellate attorneys asked this question, and they always give the same result. And I really have the same answer, I really tried to come up with a different answer. But writing the brief really is a lot of fun. I mean, I do, like we say in our intro every week, Jeff, we both spend about half our times in the trial court and half in the Court of Appeal. And I like the work in the trial court doing post trial motions, doing trial consulting work, and even the litigation work. I think there's a lot of a lot of good strategic elements to litigation work in sometimes the appellate work can be a little dry, just sitting at your desk alone, you shut the phones off and try to get some work done. But that really is the, for me the the essence of appellate work, it's trying, it's trying to find a way to reach another mind, you know, this idea, this kind of philosophy about life, that, that reaching a mind is like traveling to a different country. And not like traveling to a different country in the 21st century, where you just take a plane, it's like, like in the in the, in the 18th century where, you know, you have to, you have to make a long trek, because if you if you don't prepare, if you if you're too glib about it, you know, you're gonna you're gonna die along the way, you know, if you have to take a lot of care to reach another person's mind because it's it is like a it's like a different country. And that's why I think we value our relationships with people close to us so much is because we share a lot of the same values and it's easier to communicate with them what what you're feeling and what your ideas are, they don't if you talk to someone who doesn't share any of your experiences, they sometimes look at you like you're a crazy person. And that can be the same thing in the law. You know, you try to think how is a How is it How's a trial judge or how's the Court of Appeal going to take this you have to proceed by by these steps and try to anticipate what their reactions are going to be to each one of your statements if you try to make like too, too strident a statement that there is no dispute that such and such you know, you have to you have to let some of the air out of the blue unless they pop it you know, before you can get to the next step. So It's, it's always it's like this interesting process of give and take and trying to take leaps of faith out there, but then pulling back a little bit, so you don't come across as too, you know, if you travel to fit, you know, again, my metaphor of the mind being another country, if you if you're traveling at a at a state at a moderate speed they'll they're more likely to take you as a friendly visitor. But if you you're traveling at them at a at a gallop, they're more likely to perceive you as a charging army. So you have to, you have to kind of moderate your approach a little bit so that you come at them as someone who's trustworthy and friendly that they can take your representations and arguments as something that that's worthy of consideration. So I really enjoy that that process in writing.
Jeff Lewis 10:41
Yeah, interesting. Yeah. You know, we've had prior guests on the podcast talk about it's a mistake to assume that judges are excited to read your brief. And if you can find the right combination of emotion, and issue selection and presentation without crazy trial, lawyer type arguments that are over the top, it's the key to unlocking a judge to at least have more interest in your brief than the other briefs on that judge's desk that particular day.
Tim Kowal 11:07
Yeah, yeah, that's right. And, you know, easy way to start with that is just to weed out adjectives and adverbs from your writing. You know, I think Mark Twain said something like if you see an adverb kill it.
Jeff Lewis 11:20
Clearly, that was good advice. Yeah. big pet peeve seeing the word clearly in a brief. Right. Let me ask you this. What is the thing that you hate the most about practicing appellate law?
Tim Kowal 11:34
You know, like I mentioned in a couple of my stories a moment ago, you have those frustrating experiences, like rules that are that are there, but they're not enforceable for one, one reason or another, like I like the automatic appellate stay, for example, you file an appeal, the default rule is that everything in the trial court concerning that that order on appeal is stayed. But But how do you enforce a stay? That's automatic? You know, all you have is, is you calling up opposing counsel saying there's a stay in place? Well says says you, I don't think there's a stay. So there's no such thing as an automatic stay, you're going to have to wind up going to court anyway. And if this is the same judge who ruled against you, you know, good luck trying to get them to agree that there's a stay. Yeah. So these kinds of rules that are unenforceable, also the rule that you're entitled to a reasoned opinion on appeal. You know, good luck with that, you know, half, it seems I don't know, half the time that there's a good, good, good percentage of the time that I'm getting, getting an opinion back. And if it's unfavorable, I'm looking okay. Well, but how did the court respond to my, my key argument, how they respond, I thought I had him dead to rights. I had really Adam back into a corner on this no way to weasel off the hook. Let me see how they tried to wriggle off the hook. Well, the way they wriggle off the hook is just by not responding to my argument at all, you know, and what what relief is there from that? None. So those are those are things I find I find frustrating. Another another one that's frustrating. It's it's it's what I call those those had to be there moments, I've appeared as appellate counsel and post trial motions, like on a on a motion for new trial, say, and at the hearing, I'll be there along with the judge who had presided over the trial and with opposing counsel who had been trial counsel. And they'll both say, Well, Mr. Cole was was not here. If If only he had heard the the witnesses if they had heard the arguments that had been made the whole time, the tenor everyone understood, this is what the case was really about. And and I think, you know, have you ever told one of those jokes that that kind of fell flat, and then kind of regain your composure? You say, Well, you had to be there. If you had to be there, it's not much of a joke, right? It's an inside joke. And it doesn't it doesn't work inside jokes don't work in the law, all you have is the record because you know, you know who else wasn't there at the trial, the court of appeal is going to be more like me, and they're more likely to have my impression after looking at the record, then then they're likely to have your impression from having that front row seat at trial. So I I find those I find it somewhat frustrating sometimes that judges sometimes don't realize that the only thing that exists is what's in the record. And just saying well, you had to be there is not going to cut it at trial and often cut it in post trial motions. And so that's something i i tried to I tried to impress upon upon judges and post trial motions, but with only limited success.
Jeff Lewis 14:26
Interesting. I've never I've never actually heard a trial or judge give voice to that argument. If you had to be there. Like imagine that would be super frustrating, especially when you have to Novo issues on appeal or issues of law. You didn't have to be there. And your rights right on the record. It doesn't exist. That's right. Interesting. Okay. So let me ask you this on the subject of trial work, what are your biggest pet peeves when you receive an appeal handed off from a trial lawyer?
Tim Kowal 14:52
I don't know that I have. I have pet peeves. When I when I get from the when I get a case from the from the trial lawyer probably the the only fresh trations are things that I wish they would have done is getting me is gotten me involved sooner, like in the trial itself, or certainly in the post trial motions, post trial motions are a great time to pivot the case. Because, you know, the one of the main advantages that an appellate attorney has over the trial attorneys, if they have objectivity, they are coming in and they're looking at the record, as it is now, after the trial. They are not, you know, appellate attorneys don't have that subjective attachment to the to the facts of the case as they would be or is you hope you would be able to get the trier to believe they are, you're just going to have to operate you know, you could use a chessboard example, you know, when you go into, when you go into trial, the chess board is set up in the opening position. And you have all these designs about how you're going to control the center of the board, and you're going to, you know, put them on their back foot. But by the time by the time you have a bad result after a trial, you're not in that position that you had hoped to be at the beginning, you have to deal with the chessboard the way it is, and sometimes it it's a long process in getting there just mentally to realize the case is not what you hoped it would be. And so that's and so a great time to start pivoting from that and just accepting the facts, as they've been found is in post trial and trying to find defects and the legal reasoning or inconsistent verdicts, things like that. And those those arguments you need to start coming up with in post trial motions.
Jeff Lewis 16:24
Interesting. And I imagine there's two battles there battling with a trial lawyer in terms of, hey, it's time to pivot, and start posturing for appeal, and then battling with a to have that shift in thinking about the case, two separate battles there.
Tim Kowal 16:37
Yeah, that's right. There's gonna be a lot of discussions with the client about, you know, what about all this evidence that says, you know, this, this fact wasn't so sorry, that's it's not going to work anymore? You have you really only have one chance you have, you have two chances to make your legal arguments, you know, if the trial judge doesn't get the legal arguments, right, you still have a second bite at the apple on those kinds of arguments on appeal on factual questions, you only get that one bite at the apple, that burden of persuasion can only be can only be overcome once and that's in front of the trier all the you know, all the persuasion on facts is lost on the Court of Appeal.
Jeff Lewis 17:15
Yeah. All right. Well, let me ask you this. If you could go back in time and give yourself a young Tim Cole advice during your first year of law school, what would that advice be?
Tim Kowal 17:26
That's a That's a tough question. I one of my other philosophies of life is try not to live with regrets. And I try I try not to, in most cases, look back and say I wish it would have done things another way. But I do have exceptions to that rule. And and one of them in fact, as I mentioned earlier, when I started being almost day one of law school, I thought, Gosh, this is this is great. This is really why I belong. And I wish I would have started sooner. And as I mentioned, I spent about six years in between graduating UC Irvine and before I went to before I succumb to my mother's advice and and went to law school. And so one of my only regrets is that I wish I would have done that sooner. Now I don't know what what would have what would have happened if I had done it sooner. But one one thing I do think about those six years is it kind of that I'm always thinking about those six years that I lost, so to speak, and I and it kind of drives me to be that much more productive and effective every day because I've got to make up for that lost time. There's so many other attorneys who you know, who are my same age but they've been they've had six more years of experience so I have to work that much harder to make up for that lost time so I try to that's when we I tried to use that that regret so to speak of those last years to my advantage as kind of a you know a whip my my back
Jeff Lewis 18:45
Yeah, well, you know, those timing issues if you had gone to law school right away and maybe never would have met Tom or me and this podcast wouldn't have happened so I'm glad you took the six year hiatus.
Tim Kowal 18:54
Yeah, that's That's right. You can never you can never really imagine what what things have been like in your life if you know they're that but that butterfly effect theory right, you change one thing. What one movie I like, just as a tangent. What was it called Justin time? It was with Rachel McAdams and Bill Nighy was about a guy who could could will himself to go back in the past and like relive moments or do things over but once he had children, he could not go back to before he had children. Because if he made even a whisper of difference to his life, then he would have had different children. You know, we could think of how subtle that process is. And I think that that kind of butterfly effect thing, kind of I think about that sometimes when I think about regrets, you know, I don't think I would want to change anything for that reason. Everything was made for it there. There is a design to things I'm a I'm a I'm a theist, I'm a believer in God and fate and so I believe there's a purpose.
Jeff Lewis 19:56
Okay, and tell tell our listeners one thing I They might be surprised to learn about you. I
Tim Kowal 20:02
have a probably that I'm a big nor McDonald fan. I was a very sad when he passed away last year but I am a big fan of his humor is kind of philosophical humor is his art of the awkward joke, but I enjoy that.
Jeff Lewis 20:18
You know, I enjoyed his stint on weekend news for Saturday Night Live. And you know, Word on the Street was that he was terminated or removed from the news for he was constantly ribbing OJ Simpson during the murder trials. And if you go on the internet, you can see the super cuts of Noor McDonald just ripping into OJ show after show after show he was just vicious. And yeah, I'd say it wasn't well deserved. But yeah, he was. He was amazing. And I really enjoyed him on Saturday live.
Tim Kowal 20:45
He was he was on Letterman one time, but very shortly after he had been fired from from Weekend Update. And and he was very magnanimous about the whole thing. And he said, Well, you know, I talked to Donald Meyer, and, you know, he seemed like a decent, a decent guy, you know, just doing his job. And Letterman said, I know Donald Meyer, he's an idiot. And the Norm Macdonald say, No, I don't know, I think he's just doing his job. And then maybe this was just before he was fired. Anyway, if he came on back on the show a few months later, Norm did and he said, Yeah, I remember you telling me about Donald Meyer. And, you know, I said he was a decent guy. And you said he was an idiot. And, you know, turns out you were right. You could ever tell with Norm if that was like a long play. The bill is just like a delayed punch line. He was setting that up months and months earlier when he was when he was on the show the first time, I would not put it past norm for doing that.
Jeff Lewis 21:41
Alright, so Tim, this is the portion of our podcast where we normally have our patent pending trademark, a special lightning round for guests talking about special issues regarding briefing letters and spaces between periods. But you know if I know all the answers to these now, we're just gonna we're gonna mix it up a little bit, and we're gonna have a very special edition of our lightning round. Just three questions. Three questions to get to the end. Are you ready, Tim?
Tim Kowal 22:06
All right. You haven't you haven't given me the questions to prepare. I know. I know what how our guests feel terrifying.
Jeff Lewis 22:13
Yes. Question one. Who was our first guest on the podcast?
Tim Kowal 22:17
Oh, this is an easy one. MC son, Gala. I didn't know this. Yes. She has her own podcast now. The Porsche project. Excellent. Has a lot of great, great female judges and attorneys on it.
Jeff Lewis 22:30
Yeah, it's fantastic. Well, we should put a link to that in our in our show notes to that great podcast. All right. Question two, you survived question one. Question two, when we started this podcast, and one of my requirements or suggestions or ideas was we keep every episode below 30 minutes. We have miserably failed at that. How long was our longest episode?
Tim Kowal 22:47
I think I noticed the might have been the Sean Brady episode. Did we go an hour 12 or so?
Jeff Lewis 22:55
In fact, it was the vaccine litigation case discussion one hour and 14 minutes.
Tim Kowal 23:01
One hour 14. Yeah. And although I will, by the way,
Jeff Lewis 23:04
blowing a hole in my theory, I thought shorter episodes will be more popular. That is not only our longest episode, but it's one of our more popular terms of downloads.
Tim Kowal 23:14
I think it is the most downloaded episode so far.
Jeff Lewis 23:19
All right. Final question. Very important question. As of last night, when I was writing these questions, how many downloads has the California appellate law podcast had?
Tim Kowal 23:30
Oh, isn't this a trade secret? Jeff, we want to give this away? I think we are we're approaching 5000 downloads, not quite there.
Jeff Lewis 23:38
That's right. We're in about 4200. So yeah, not too bad for a little hobby that started in the pandemic. And again, you know, kudos to you for all the efforts you put into this thing. I really admire what you've done with this.
Tim Kowal 23:49
Yeah, I appreciate it. I was looking Not that I care about these things. But I was comparing our podcast with other with the mean or median and, and we're we're in the upper 25% of all of all podcasts, at least on our platform. So that's not too shabby. I think, for an obscure subject matter like California appellate law. I think that's not too shabby.
Jeff Lewis 24:12
Let's do another 30. All right, you've survived the lightning round. I'm not going to send you a mug or a t shirt, because you're a co host. But you so you can say that you survived lightning round.
Tim Kowal 24:20
Not even a bumper sticker, Jeff.
Jeff Lewis 24:24
Not even a bumper sticker. All right. Were there some news and tidbits you want to share?
Tim Kowal 24:29
Yeah, I did want to talk about a few of recent cases that I that I've written up and I thought maybe we'd share with our listeners. Let's see the first one. The case the case is about challenging an arbitration award that resulted in sanctions for filing a frivolous appeal of $38,000. The case is McQueen V. Wong. It is a issued in march out of the second district. The courts sanction the appellant and his counsel over $38,000 for challenging the ARB award based on illegal air mere legal error, as you know, Jeff has not aground to overturn an ARB award. So the appeal, you know, presumably was doomed from the start, even though there are some decent arguments in there. I didn't think the the, the appellate challenge by itself was frivolous. So what the court really pointed to in grounding the sanctions was the appellant gamesmanship in the trial court. And I thought this was interesting, because the appeal itself, as I said, Didn't seem frivolous. It was the trial court conduct that was overly aggressive and smacking of strategically, and I was taken aback that this can be a basis for appellate sanctions. What about you, Jeff, that did that surprised you?
Jeff Lewis 25:37
You know, it is an interesting result. I'm always paying attention to cases where appellate counsel or counsel are sanction as opposed to a party. You know, I think of it this way, it is very difficult for any court of appeal to issue sanctions when an appeal is taken for purposes of delay, because how do you establish that a party only appealed? Because delay? It's hard to get that from the cold record and from the briefs? And I guess one way to establish that is, through a recounting of the history of litigation, this thing bounced between a couple of courts and been some long delays. But the thing that struck me most about the decision or the opinion was plaintiffs counsels comment at oral argument describing the litigation history as gamesmanship when you're facing a sanctions, and the Court of Appeal has put you on notice that you are going to be sanctioned. I'm not sure those are words that would come out of my mouth describing how my client has acted in litigation.
Tim Kowal 26:32
Right. It did did appear that there was not due caution taken by appellate counsel, once once they were aware that sanctions were on the table. The next case has had to do with another another arbitration case. And this is a case where a preliminary injunction had been issued by the arbitrator. And the Court of Appeal held that although preliminary injunctions are normally appealable, they're right in CCP nine oh 4.1. They're not appealable when they're issued by an arbitrator. The case is Kirk V. Ratner. It's another second district case came out in February of 2022. And a preliminary injunction. Let's see they the preliminary injunction is not considered to be quote unquote, an award under the appealability statute for arbitration under CCP 12 83.4. The parties had settled their show business dispute in that case, and they agreed to confidentiality and worry that Kirk would breach confidentiality. The moot the movie executives initiated arbitration, the arbitrator issued a temporary restraining order followed by a preliminary injunction, and the movie executive plaintiffs were not required to post a bond for the injunction. That was the other thing I've found surprising about this case, because under CCP 529, a preliminary injunction must be bonded. A preliminary injunction that's not bonded is void and can be vacated for that reason. So Kirk appealed, but the Court of Appeal dismissed holding both that the injunction was not a award subject to a petition to vacate. And the order dismissing the petition was not appealable for the same reason. So I mentioned one, one thing that was surprising to me, Jeff was, was the bond issue. The injunction was not bonded, and it could could have been vacated for that reason, but there was no mention of this in the opinion. Another thing that I thought was surprising is that the reason injunctions are appealable, at least I think my understanding is that they're made appealable to protect appellate jurisdiction. Because if an injunction is issued, and you have to sit around and wait for a judgment, before you can appeal it very likely, in a lot of cases, the any appeal of the injunction award is going to be moot because it's already going to have been complied with at least substantially substantially, if not, in totality, by the time you get get around to an appeal after a judgement. But there was no mention of this consideration, either in the opinion. And then one final point about this case that jumped out at me is that Jeff, you and I and some of our guests have talked about what seems to be a trend in favor of greater review ability of orders coming out of arbitration, but obviously this case seems to go the other way. So I don't know if that if that spills kaput, to our theory of a trend or if we're just kind of witnessing fits and starts and not really something like a trend.
Jeff Lewis 29:27
Again, this is an interesting case. Did you say it was published? Is this a published decision?
Tim Kowal 29:31
I think this one was, you know, I think it was published.
Jeff Lewis 29:35
Yeah. i It's counterintuitive to me that you can't seek immediate direct appeal from an injunction. You know, it seems like the only path to challenges would be by way of writ. Typically a challenge in any red proceeding is explained to the Court of Appeal, why you get to cut the line and go in on an emergency basis why you don't have another appellate a traditional appellate remedy, and it would seem this case would be a way to establish good cause for you RIT to be heard, if this case holds and isn't reviewed by the Supreme Court, that you can never seek review of an arbitrators preliminary injunction. It's very counterintuitive. I appreciate you bringing it to my attention.
Tim Kowal 30:15
Yeah, yeah, I thought so what about what about RIT? Review? Do I don't even know the answer this question. Can you see, I suppose you could seek review of an arbitration order like an injunction?
Jeff Lewis 30:25
Yeah, I would think that's the only way you could challenge it. And this case, our jobs as appellate lawyers filing such a writ easier, because before this decision, I would I would if I were on the other side, I would say they could just do a direct appeal. You don't need an emergency read? And the answer to that argument now is well, Kirkby Ratner, you can't seek direct review of such an injunction therefore, a writ is the only way. And there's some exigency here. So in some ways that you might see an increase in rent filings with the Court of Appeal.
Tim Kowal 30:55
Yeah, I just never seen have you. Had you ever seen a review of an interim arbitration award ruling? Never, never. Never. Yeah, I had an either I just the structure these things usually gets funneled up through a petition to confirm or vacate an arbitration award. And I don't know if you would have to similarly funnel the challenge up through the Superior Court first by some kind of motion to vacate and an interim arbitrator ruling. I've never heard of such a thing.
Jeff Lewis 31:24
Yeah. And also on a crazy expedited process to at the Superior Court level very complex.
Tim Kowal 31:30
Yeah. Well, they're just there are just two other cases. I wanted to mention quickly. One is about an order granting withdrawal of attorney being found to be not appealable. This was Elias V. Jensen. It's a out of the fourth district and an unpublished opinion. The reason I thought this was interesting, it's a very brief decision. And you could see why it came out the way it did. Some of the facts are a little bit ridiculous and amusing. But the reason I thought was interesting is that, as you know, an order granting disqualification of an attorney is appealable as a collateral order, and I thought, What's the difference between disqualification and withdrawal, it still kind of has the same, the same effect, at least as far as a client is concerned, maybe just not as far as the attorneys is concerned. Anyway, I thought it was interesting enough of a distinction that maybe it ought to be published. So I, I filed my first Amicus request to publish it was denied. But, you know, I figured I gotta start somewhere. But the the slightly ridiculous facts of the case was that in leading up to the attorneys motion for withdrawal was that the attorneys client and quote, demoted her to co counsel, and the client had been filing documents under his own name. And the client even filed a State Bar complaint against the attorney and yet opposed the the attorney when she wanted to withdraw as counsel and the Court of Appeal reasonably said, if the if the client's allegations against the attorney are true, then the client should not be represented by a conflicted attorney with to me as a present decision. So not a surprising outcome. Again, I just thought it was interesting that the court distinguish between withdrawal of an attorney and disqualification of attorney for purposes of appealability. And then the other the other last case I wanted to bring to your attention was we discussed San Francisco V. Hale, in Episode 27. With Victoria Victoria Fuller, this was the family law decision were the one of the litigants had asked the family judge for a statement of decision and the family judge said nah, not going to do it. Not going to bother with that here. And the Court of Appeal reversed and said, you know, Judge, you really need to give the statement of decision. It was timely requested, and to prejudice here. Under these circumstances. There was an unpublished decision, but the Association of Certified family law specialist saw my post on this, they were nice enough to let me know that, that I had tipped them off to it. And they filed a request for publication, noting that there had been a disturbing trend of judges doing just this denying timely and appropriate request for a statement of decision. And now there is a published case on that point that family judges really do need to give statements of decision when they're timely and appropriately requested. So that's all I have as far as cases this week. Jeff,
Jeff Lewis 34:07
love Hey, that's a great that's a great result man that was great about Association let you know that they that they read your posts. So good result there. Yeah, it
Tim Kowal 34:14
was kind of I mean, it kind of prompted me to to get off the Schneid and start sending out my own request for publication. We'll see where they go.
Jeff Lewis 34:21
You're winning the war regarding unpublished decisions one case at a time.
I start somewhere.
Well, that wraps up episode 30 of the podcast.
Tim Kowal 34:32
And if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal while preparing for trial.
Jeff Lewis 34:44
All right, see you next time.
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 ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
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 www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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