Frances Campbell of Campbell & Farahani, LLP joins Tim Kowal and Jeff Lewis for a discussion about housing law, eviction defense, appeals and practicing in limited jurisdiction courts. Fran shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term "HateWrite," and the font Cochin for brief writing.
Cases and other resources mentioned in this episode:
Amjadi v. Brown, No. G059069 (Aug. 30, 2021)
King v. May-Wesely (Oct. 22, 2021) 2021 WL 4929912 (no. F080224) (nonpub. opn.).
Legendary Builders Corp. v. Grovewood Properties, LLC (D2d4 Oct. 5, 2021) 2021 WL 4550995 (nos. B297299, B301777) (nonpub. opn.)
State Farm Mut. Auto. Ins. Co. v. Penske Truck Leasing Co. (9th Cir., Oct. 15, 2021, 20-55893).
Ninth Circuit to resume in person oral argument.
California Academy of Appellate Attorneys' Recommendations to improve appellate court efficiency.
Frances Campbell: 0:05
Some of my best work is I "hate write." When I hate write a brief, that's when I'm really enjoying it and then it comes out great.
Welcome to the California Appellate Law Podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis: 0:29
Welcome, everyone. I am Jeff Lewis.
Tim Kowal: 0:31
And I'm Tim Kowal. California Department of podcasting licensed pending moral character determination. In each episode of The California Appellate Law Podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for trial. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal.
Jeff Lewis: 1:00
Alright, welcome to episode eightteen of the podcast
Tim Kowal: 1:04
18. And today we recognize Francis Campbell to the show. Fran Campbell is a Los Angeles lawyer focusing on housing law, civil rights, privacy, law and appeals. Fran is a graduate of USC Law School, a certified appellate specialist and a partner in Campbell and Farahani. She has been in practice for over 20 years, and she is also a member of the United States Supreme Court bar. So welcome to the podcast. Fran.
Frances Campbell: 1:29
Thank you so much. Great to be here. Well tell us a little bit about yourself that I might not have captured those three sentences in your bio. Oh, well, that's basically my entire life. I'm the most one dimensional person that you'll ever meet. My I always tell people, My hobbies are the Code of Civil Procedure. So that's it, I part of a firm that just started doing housing long before we formed that firm, I kind of fell into housing law. Because the day I was leaving to start my own practice, which I thought would be a personal injury practice sort of a general litigation practice. I got a call from a friend of mine, and who had was working as the executive director of the eviction defense network. And she goes, Hey, we got 20 tenants with a case that they want to bring against their landlord, would you be wanting to do that? And like, I have no cases, of course, I'd be wanting to do that. So from then I just got known as a person who did housing work. And then a few years later, I formed a partnership with a business lawyer, who's really very gifted and all things contractual. And it's a very good team until now most of our practice is housing, housing law work.
Tim Kowal: 2:53
Well, that's that's interested, I wouldn't have pegged you for for endeavoring to go into personal injury law. And then you come out on the other end doing Housing Law, and as an appellate law specialists that it seems like, like quite a trajectory.
Frances Campbell: 3:04
Well, the appellate law specialist is because I'm stubborn. I do not like it when things don't go my way for it. And I think that the judge made a mistake. I worked as a law clerked for a firm when I was in school that did liquor license defense, very good firm. And one of the things they did was took every case all the way to the end, it was part of their practice, because one of the things I had to do was preserve the liquor license. So I don't know how much you know about liquor license law, but you have to appeal to there's ABC procedure, and then you have to appeal to the ABC Board of Appeals or something like that don't remember is over 20 years ago, and then from there to the Court of Appeal, and then the nor the trajectory then becomes normal. But the reason they kept it going was because if their clients gonna maybe lose their license, which they prevented, most of the time, I will say they want to keep it going because as long as it's on appeal to the valuable asset, the license is preserved. So they did very good appellate work. And so that's kind of where I got the bug for. And I think the
Tim Kowal: 4:19
interesting Yeah, and you got to, you got to have the disposition of being willing to stand up to bullies, right. That's the idea that you don't want to take, you don't want to take guff from anybody. Some people will just, you know, just gotta say, well, that's that's a decision what can we do about it? You know, nothing to be done. But I think the appellate attorney tends to say, you know, we're gonna there's something wrong here. We're just going to, you know, not going to sit down for it. So, what's the what's been the biggest pro and biggest con of practicing during a pandemic and we're going to talk about, you know, some more your practice specifically, but just just for you and your practice. You know, what's been the pros and cons of having to switch up your practice a little bit
Frances Campbell: 5:01
Well, I didn't switch up my practice that much. But I will tell you the cons, I've got a very definite idea of that. No trials means a whole bunch of insurance defense attorneys with nothing to do except write motions for summary judgment. So briefing got very time consuming and labor intensive during the pandemic. And we're still feeling the effects of that. Because we're still getting motion for summary judgment after motion for summary judgment. And so long as it's in state court, where you have 75 days, that's okay, you can make that work with you know, I've got some really excellent associates who are very good at it, but I don't have to come in at the end and do all their work. But anyway, you can plan your time if it's federal court. That's a ball that comes at you with a week to oppose. So just drafting the the amount of drafting has become really unreasonable because of the pandemic.
Tim Kowal: 6:09
Yeah. And what's your favorite part of practicing law?
Frances Campbell: 6:12
Oh, well, it's definitely the writing part. So I do enjoy the writing. Some of my best work is I hate right. When I hate write a brief. That's when I'm really enjoying it. And then it comes out gray. Hate, right? Yeah, to go back and take out a few words and adjectives and adverbs, which I always tell people to do anyway. Yeah, but I think we have
Jeff Lewis: 6:37
Tim, I think we have a hashtag for this episode. #Hate,write. Learn about hate writing with Fran Campbell.
Tim Kowal: 6:42
I learned a new word today hate-write.
Jeff Lewis: 6:44
Yeah, I call it being in the zone, you know, you're fired up about a case and the words just spill on the page without any effort that when you're done, you don't have to do too much editing. That's, that's my happy place.
Tim Kowal: 6:55
Oh, do what they do with overheated adjectives later.
Frances Campbell: 6:58
You sit down at two o'clock, you start point by point very methodical. And at 2:30am. In the morning, you are making it pretty for the court. And you haven't even noticed the time the one when you have sufficient hate to generate that quality brief.
Tim Kowal: 7:15
Right. And you do seem to be in trial court a lot for at least for an appellate specialist. Do you know other appellate specialists who are in trial court as much as you are?
Frances Campbell: 7:25
No, I don't think I do. I just became an appellate specialist just because I was writing so many appeals or, you know, petitions for review or read a mandate and that at some point, it became silly not to be a appellate specialist, I might as well get the training and the credit and be able to put that next to my name. So that's why I did it. Yeah,
Tim Kowal: 7:51
you found found a few dozen hours in the couch cushions for MCLEs extra legal specialist MCLEs. So And speaking of another another aspect of your practice that I found unusual landlord tenant and appellate law, I don't see go together very often. So how did I mean, we talked a little bit about how that came came about. But well, I guess maybe I'll ask you, I was gonna ask you about, you know, what are some of the differences in practicing? Because most UD actions, eviction actions are our limited civil correct. So most of those would go up to to the Appellate Division of the Superior Court rather than to the to the district court of appeal by that, right.
Frances Campbell: 8:30
Sadly, that is correct. And I want to make it clear, we don't just do eviction defense. Some people have impression when you say Housing Law, most of our cases are some kind of variation of fraud, where a landlord has done something sneaky, to trick the tenant to leave their rent stabilized tenancy. And when you think about it, rent stable, a tenancy is a very valuable asset. If someone is living in LA today, their rents 1000 A month say, and they have a one bedroom or two bedroom apartment, an apartment might well go for 3000 a month. So as soon as that person is tricked to move their those $24,000 a year out of their pocket and into the landlord's pocket. So most of our cases, in fact, I was in a federal status conference today, in a case where the landlord trips to people to move out of their apartment. She said, Oh, I'm sorry, my mother is going to move into your place, which is legal to do if it's legit. And they go okay, did you go oh, wait, no, not my mother, my husband okay. And they left anyway. So they left and the husband moved in, but he also did the wife in other words, there was already another legal you another unit did this one that belong to my clients? So they're going to be going to trial with us next week. So that's most of what we do. Now, you asked about appeals and you appellate division?
Tim Kowal: 10:12
Yeah. Yeah. What is it? Like? What are some of the the main differences and taking appeals up to the Appellate Division? You know, most trial attorneys know a little something about taking appeals up to the Court of Appeal. But all the share recently I was I haven't done a lot of practice in the limited civil division. But my first foray into it was realizing that the my I was the respondent, and I realized that the appellant had assumed that the normal timeline applied to file a notice of appeal, they had assumed they had 60 days, they only had 30 days. We got the appeal dismissed.
Frances Campbell: 10:43
Wow. Wow. That's that's a good one. So someone gave Notice of Entry of Judgment, which is rare on the limited civil.
Tim Kowal: 10:51
Right. Right. And there was even a motion for new trial, those deadlines, those those extensions are all cut in half as well. So uh, wow. So that's that was that was one tip I'll always keep in mind is, you know, all of the rules, the timelines to file the notice of appeal. And and remember that they're all cut in half if you're unlimited civil.
Frances Campbell: 11:11
I'll tell you another thing. Not only that, if you're practicing in Los Angeles appellate division, I don't know about the others. I've never filed in any of the others. You better know the rules inside and out. It is maddening. Unlike the Court of Appeal, where you can call code and go Oh, I see what you did there. Oh, I'll fix it. Oh, I'll help you. Oh, I'll give you another day. They'll just boom, strike it. And I recently had the experience where they have a new rule there. They're now accepted. appendices. Thank God used to only be clerks transcript. Oh, wow. Yeah. So I filed I filed on time and they send it back. They sent back my appellate opening brief. And my appendix said, I had complied with a rule on dependencies. I looked at my attendance. I looked at the rule. I could not see anything wrong. They didn't specify what it was. So I went down there. Now I'm two days before my deadline. And I mean, like extended deadline. So I've got to make sure this thing gets online. And I there with this nice clerk lady, and she goes over with me, because I see what you mean. It's it. I don't see what part of the rule you've broken either. Will you accept my opening brief and Appendix for filing? Yes.
Jeff Lewis: 12:38
Okay. Oh, all right.
Frances Campbell: 12:41
But the story doesn't end there. One week later, I get it back in the mail with a strike through, say now I have an applause now I have complied with a wall governing clerks transcripts. I'm like, no. So I went on the phone and had a long talk with the supervisor, where she and I had a spirited discourse about the meaning of the rules of request for judicial notice. Appendix instances of appendices, and clerks transcripts. And she says, Well, no, I'm sorry. I don't think so. And I said, so what should I do? She goes, you're gonna have to do it the way I'm telling you, and also file a request for relief from default. That's it. I'm in default. Yes, you are. Well, I haven't received an order before. Oh, well, you better file a request for relief from default. Anyway, she had put me in default. That kind of thing that happens in the Los Angeles Appellate Division. I really wish they would do something about the well, I don't know how to say I mean, it's a they do it. And it's just crazy. maddening, because you get stuff from the other side doesn't comply with the rules at all.
Tim Kowal: 14:04
You're running afoul of the local, local local rules?
Frances Campbell: 14:07
Yeah, it's the local, local local rules for sure. And then also, there's no E fun. It's all got to be on paper. You've got to send messengers, oh, my God, it's free. Now.
Jeff Lewis: 14:18
You've convinced me never ever to handle one of these appeals. Let me ask you this. If you lose in the Court of Appeal, you've got options to petition for rehearing and protection, perhaps a petition for review the California Supreme Court. What happens in the rare case that you lose the one of your limited jurisdiction appeals? What's the next step?
Frances Campbell: 14:37
Petition for transfer? First, you have to ask the Appellate Division to please transfer it to the Court of Appeal. And they you know, like most courts would say, yeah, no, I don't think so. We did a fine job. But that's a precondition to ask me now the Court of Appeal to accept transfer of it. So then you have to ask the Court of Appeal to accept transfer and they will probably say We have enough work to do so no. So you're pretty much stuck.
Jeff Lewis: 15:05
Okay. Both of those steps are discretionary. And both of them are low percentage just steps in terms of except I
Frances Campbell: 15:11
don't know what the percentages are. But I assume so usually when discretionary, it's low percentage.
Jeff Lewis: 15:16
All right. Okay.
Tim Kowal: 15:17
Interesting. Okay. And I had a question about how does the Appellate Division is it bound by the District Courts of Appeal like this, like the the trial court is or, you know, we don't have horizontal story decisis, starry decisis here. So the District Courts of Appeal can can ignore the other District Court of Appeals opinions, it could even ignore its own previous opinions out of out of the own display its own district. What about the Appellate Division? Is it bound? Or does it also have autonomy like, like the district courts?
No, they are bound. They're the same as the trial court. So they're bound by the Court of Appeal on whatever district? So unless I'm wrong about that, but I do believe they are bound by all court of appeal, because it's a higher court.
Tim Kowal: 16:00
What about all the differences in oral argument in the Appellate Division? No, they
Frances Campbell: 16:05
also went to virtual hearings, and I think I've done one, and it worked very well. Although, you know, it didn't work out that well for my client in the end. But as terms of argument, it was it was fun, as good as appearing in person, although my opposing counsel appeared in person. So I don't know if I do it that way again, but I thought I thought it was good. I thought it was acceptable. I don't know what you guys think about virtual oral arguments. But I'm a fan.
Jeff Lewis: 16:36
I'm a huge fan, so long as everybody's doing it. I don't want to be the guy stuck in the office when my opponents down there in person, but I am a big fan. And in terms of access to justice, I think it's a great thing. And I really hope post pandemic remote proceedings are allowed liberally.
Tim Kowal: 16:53
Well, the fourth third down here in Santa Ana has moved back to in person or arguments. I did my first in person oral argument a couple of weeks ago, since the pandemic started.
Jeff Lewis: 17:04
Tim, when you signed up for oral argument, did you have the option to do video? Or did they say nope, show up?
Tim Kowal: 17:10
You can make a special motion, but otherwise you are expected to show up in person.
Jeff Lewis: 17:15
I see. I see.
Frances Campbell: 17:17
I like that. I'm looking forward to getting dressed again formally for you know, from from not only from the waist up.
Tim Kowal: 17:26
I saw someone at a at a Halloween party dressed up in a in a jacket and tie and then pajama bottoms and slippers. Going as an appearance and attorney ready to appear for oral argument. during a pandemic that is So Fran, you had mentioned that the Appellate Division, if you want review of a decision out of the Appellate Division, yet you have to file a petition for transfer to the Court of Appeal. And those are entirely discretionary. Have you noticed any kind of do you have any opinions on whether that kind of tends to render the opinions out of the Appellate Division somewhat shielded from review? Because they're less likely to get reviewed from a district court of appeal? And certainly, are they I don't know. Maybe there's another question or they also that does that also tend to shield them from review in the Supreme Court?
Frances Campbell: 18:18
I don't know how you get into the Supreme Court. There's a there's a couple of cases that ended up in the Supreme Court from a limited jurisdiction Unlawful Detainer. But I have to assume the way that happened is that they did something that was perhaps outside their jurisdiction. So someone filed a petition for writ of mandate, and then you can petition for review from the denial of the petition for writ of mandate. There are a couple of cases where that happened. I'm not sure they had the same rules at that time regarding transfer. So I don't even know if that's possible now. But yeah, it's a big problem that appellate decisions are shielded from review. And in fact, far more also, because not only are their decisions, unpublished. They're unpublished and unavailable online. So no one sees them. No one knows about them. And in the last case, I did I asked for rehearing because they use the same authority to decide a case one way and years later, in my case, use the same authority decided another way. And I don't know who was proper, were right. But I attached their 10 year old decision that someone's friend of mine sent me and say, obviously, this needs to be heard. Work. Obviously we need to transfer because we need some clarity on what this means. So we don't know and as someone who does practice in limited portable, hot because of unlawful detainer litigation. There's just no body of law that Tell the various courts how to handle certain very fundamental questions. Like, for example, who has standing to bring an unlawful detainer I think it's very clear that only a landlord can, or a property management company that actually has a lease with a tenant. But it's very common thing for property management companies to file unlawful detainers in their own name, even though they don't own the property, and they have no contractual relationship. And I keep arguing with some success to some judges and not success to other judges, that that case has to be dismissed or they have to sub in the name of the actual landlord. And it's it's really just maddening that we do not have a decision from the court of appeal that clearly says, the answer to that question.
Tim Kowal: 20:57
They haven't decided that in a published position anywhere?
Frances Campbell: 21:00
No, they have not, at least not directly. At the there's a couple of cases that are commercial. So the rules are a little different, but in an unlawful detainer action, the plaintiff is asking for possession of the real property. Well, you can come along as stranger to the contract and stranger to the realty is a give me possession. How can a court award possession of real property someone who doesn't own it? They can. Now the other thing they ask for is forfeiture of the agreement. Seems to me, you need to be both the owner and the contracting party. You can't ask for forfeiture but agreement to which you're not a party interest. I don't know why this isn't a subtle point. It should be a subtle point. I keep asking for it to be settled point. And apparently for the next 10 years, I will continue to be asking for it to be a settled point.
Tim Kowal: 21:55
Well, that's that's what happens when courts decide keep deciding issues on their shadow docket. I think that's I think that's a that's a correct application of that term. Isn't a Jeff? The Shadow docket your are your Supreme Court watcher on the podcast?
Jeff Lewis: 22:11
Yeah, yeah, I think so. I think so.
Tim Kowal: 22:14
I mean, any opinion that's decided unpublished is essentially a shadow docket. It's effectively disguise from from public notice and and from future court notice, because you can't bring these decisions to the future Court's attention, even if it is decided, in issue unambiguously. One way it's free to ignore it. The other I guess it could do it, it could still it's still free to ignore it, even if it is published. But I think it obliges the court to give some explanation for why it's disagreeing with it.
Jeff Lewis: 22:43
Yeah, yeah, I agree. You know, I'm a big fan of published decisions. And I do not like the rule, not allowing citation, unpublished decisions, but that's just me personally, Hey Fran, let me ask you this in terms of eviction, I know two things. One, I'm not competent to handle it. So I gotta refer all my tenant work to you and all my landlord work to Eileen Kendall, I know that. And then my second thing I know is that from a bunch of headlines, there's a tsunami of evictions coming. I once mentioned that to you in a conversation or an email and got a blast back from you suggesting maybe it's all a myth, and there is no tsunami. What are your thoughts on the coming Tsunami of evictions?
Frances Campbell: 23:21
Absolutely no tsunami, as I predict back in the beginning, when the when, when they send us all home, but we were all afraid. Maybe not you do but definitely me. It's It felt as if you walked out your front door that COVID was gonna come in and kill you. You know, that's why there's no cars on the 405. Everyone might act brave now. But at that time, I believe that's how we felt. So at that time, when there's addictions, I told people do not worry about your addiction. Here's what you do you answer you guys for jury drop, oh, this is gonna get thrown off in the in the future. So people did and then the judicial council came in and said, We're not going to allow any issuance of summonses in unlawful detainer cases. So that stopped the eviction tsunami, then the judicial council got they say, Hey, why are you making us do this dirty work for the State of California state? Come come in here with a rule because we're gonna allow summonses to issue. So the state said, Well, okay, we're gonna fashion this rule where people if they pay 25% of their rent, they can't be evicted. We'll figure it out later, how you get your money. landlords will let you sue in small claims court for it. And so that lasted 13 months. And now we're at the final stage of what I believe is that whole scheme is they're making landlords in order to get a summons for an eviction case to actually have applied for housing assistance. So you can't just have a cranky landlord who wants his money but what he really really wants is the tenant to be gone. So now they have to have show they have applied for eviction is a relief or flurry rent relief, and also that the tenant has, and it stopped evictions. And I've talked to other practitioners on both sides. And I talked to a good friend of mine who does evictions for the landlord. And he just says, even now, there's just a general queasiness of going in there losing all these cases, if they have to do with rent, so they are not bringing up the eviction cases that happened during the pandemic. were things like you're creating a nuisance, right. But even though there's a moratorium that said no nuisance evictions without just an affirmative defense, and some courts didn't buy it, and maybe there was a breach of the lease, you have 18 cats, you know, and that's a breach of your lease, but you couldn't evict for pets during the pandemic either. So there were a bunch of little kind of niche, unlawful detainer issues, most of them got thrown out. I didn't go to trial anything during the pandemic. So,
Tim Kowal: 26:09
so so there's this this whole backlog, whole backlog of evictions, what's gonna happen to them, if there's not a tsunami are people just going to wind up staying longer than they would have?
Well, there's not an tsunami in evictions because the landlords are getting their money, their billions of dollars to be given to landlords now who didn't get rent, and, and so hopefully, you know, everyone should be happy. It's like, okay, we got our money. But when all this starts, you know, what will start up again, I'm sorry, when the whole COVID scheme ends, what's going to start up again, which will happen in Los Angeles and other places that have rent control, or Ellis Act evictions, owner move in evictions, which have generally been placed on ice during the pandemic. And Ellis Act eviction, if you don't know is where the landlord decides, I have got the right to Evelyn to go out of the rental housing business. And I'm going to take my apartment and have all the tenants leave and just let it sit empty. Some people want to do and there's very interesting case called Nash versus City of Santa Monica, which gave rise to the whole LS app. You can might read it sometime. But that so that's something that happens. And of course, landlords want to do that, because maybe they have other plans, it's going to be a family compound. Or maybe they're just gonna let it sit empty for five years, at which point they can raise the rents to market and some landlords that makes economic sense. Sadly,
Tim Kowal: 27:34
You mentioned a general queasiness on the part of landlords that may not want to initiate action because they figure there's there's got to be some law still hanging out there some ordinance some some way, I'm gonna get denied relief. So they figured, why bother?
Frances Campbell: 27:52
It's definitely true. In the city of Los Angeles, we have our own special anti eviction ordinance here during the local emergency period, which has no end yet. So even though it only creates an affirmative defense, which in my opinion, is a tough for rent fest to show that you the reason you're not paying your rent in October, November, is directly related to the pandemic. Today, with so many people, I mean, employers looking for work, I think that's going to be a very hard burden to meet. But my friend and landlords bar says we don't want to, we don't want to go there. There's a feeling that there, we're just not going to win. So that's what's going on right now. I think when the all the local moratoria expire, and the local laws expire, the local city laws expire, then you're going to start seeing evictions for non payment again. And I think that's going to be fairly soon in the next few months. But I still think it's going to be a tsunami. Most people have gotten money from the government that set aside for exactly this purpose. So that's where I come out on it, the government did a really fantastic job of stopping the evictions, you know?
Tim Kowal: 29:04
And when the government money stops coming, are the tenants gonna be able to just start paying are they have they been habituated into thinking that they've got a free ride?
Frances Campbell: 29:12
No, I don't think any tenant thinks they've got a free ride. In fact, one of the things that eviction tsunami has caused was is tons of anxiety, unnecessary anxiety on the part of tenants who are trying to understand the laws as they come down every couple of weeks or so. And what does this mean for me? And I mean, I talked to someone, senior staff attorney from the inner city law, inner city law center, and she says, Well, what we hear is just a lot of fear and a lot of anxiety about what's happening if that's also my experience, but as to evictions, they're just not happening. Now, good luck tenants fine to understand these laws. The practitioners barely understand them. We all get together on the first day. What do you That means and we come to consensus works.
Tim Kowal: 30:04
Yeah, well, that's it almost seems like it's a, it's not even a practice of law. It's you know that the laws are so malleable, at least over the last 18 months, it's I'd written down here, I wanted to quote you federal 62, the quote at a federal 62 and see what your your thought on it is, there will be a little avail to the people, that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood, if they be repealed or revised before they're promulgated, or undergo such incessant changes that no man who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action. But how can that be a rule which is little known and less fixed? And I thought that kind of that's what comes to mind when I think of the the eviction laws and regulations and exec executive orders and regulatory orders over the last 18 months is I don't even know where to start with them.
Frances Campbell: 31:00
Eviction law is a particularly statutory interpretation based practice. And it was difficult, I mean, not difficult, but you know, it's something that I didn't know how to do interpret statutes before the eviction tsunami and the eviction tsunami of laws after, it was just insane, trying to, to work them all out and try to interpret them all with relation to each other. And if you like statutory interpretation, kind of fun. I had a couple of dinner parties at my house, when we drank wine tried to figure them out. It was alright, we worked it out. So I'll be glad to see them them gone. Actually.
Jeff Lewis: 31:47
I don't ever want to go to one of Fran's dinner parties. If that's what you do.
Frances Campbell: 31:51
Oh, hey, well, that's all we do if you got lawyers in the room, and we're gonna talk about civil procedure.
Tim Kowal: 32:00
All right. So Fran has an appellate lawyer. Do you have any pet peeves that you want to share about trial lawyers or clients about the cases that they bring you for appeal?
Frances Campbell: 32:12
Very few people bring me cases for appeal. I mean, there are few, particularly if it has to do with unlawful detainer because I'm known as someone who can do both. But most of my cases are just my firm's cases where that we feel judged. got it wrong. Yeah. So I don't really have any pet peeves in that regard.
Tim Kowal: 32:33
Well, I don't know if anyone is gonna do you know, many attorneys who are taking taking their eviction cases up on appeal other than your firm?
Frances Campbell: 32:41
I sure actually, there's a nonprofit called bosta. And Eric post works for bosta. And he does a ton of limited civil appeals. They just have a piece the arm of that organization that does all their appellate work. So if I know sometimes we share briefs.
Tim Kowal: 33:01
Yeah. Well, I don't know any other so you'll be my go to in the future. So Jeff, I think it's I think it's time to get to the lightning round.
Jeff Lewis: 33:11
Oh, yes. Fran, you've heard the podcast before these are quick questions, short responses, the most vexing questions that concern apellate nerds around the world. They're discussed at dinner parties like yours on Saturday night. Okay,
font preference: 33:24
centric schoolbook. garmont or something else?
Frances Campbell: 33:29
Something else entirely? Cochin. C O C H. I N. It is the most beautiful of all the fonts and especially the queues huh? Chef's kiss. It is elegant and wonderful font.
Jeff Lewis: 33:45
That bonus follow up question has the Appellate Division ever rejected one of your briefs were being filed in that font?
Frances Campbell: 33:52
Nope. It's close enough to Times New Roman only one judge in district court right it says it has to be a career Walker. I think his name is he also has a special type of hole punch that you have to use a particular like yeah, we have a special hole punch just for this judge.
Jeff Lewis: 34:14
Holy smokes all right, two spaces are one after a period
Frances Campbell: 34:17
One. Come on its the 21st century.
Jeff Lewis: 34:20
Alright, thank you pled or pleaded
Frances Campbell: 34:23
Tim Kowal: 34:25
Thank you. Fran.
Frances Campbell: 34:29
Jeff Lewis: 34:30
argument headings all caps initial caps or sentence case.
Frances Campbell: 34:34
Oh, okay. So all caps for the first one if it Sure enough, but everything else sentence case is how much coming out on that because their senses do you want people to read them or not? I like that answer.
Jeff Lewis: 34:51
No argument here. left justify or Full Justify.
Frances Campbell: 34:54
Whoa. Now here. My partner my law partner and I just come to blows on this So he is an all justification. So our trial court stuff is always fully justified or he will just tear a tear out and literally kill me. He'll have to grab this alone or and I'll be there but in the Court of Appeal left justified I think Butterick has done the work. The research shows is the easiest to read. And that's what I hear about you people gonna be reading library on screen, so left justified.
Tim Kowal: 35:31
So I'm glad we asked Jeff, there are some people who still like Full Justify
Jeff Lewis: 35:36
that's your takeaway.
Tim Kowal: 35:39
I was dubious that they existed, but Fran just confirmed it. Oh,
Frances Campbell: 35:43
we're fully justified in the trial court's
Jeff Lewis: 35:46
Alright, yeah. Final lightning round question. Pronunciation of the following words, is it is it niche or niche?
Frances Campbell: 35:57
I say niche
Jeff Lewis: 35:59
X party or ex parte X party. And on bonk, or on, bonk.
Frances Campbell: 36:06
I couldn't even hear the difference. Me either.
Jeff Lewis: 36:09
Tim wrote these out for me. All right.
Tim Kowal: 36:12
phonetic spelling. On bank or on bonk.
Frances Campbell: 36:17
I will say yeah. So you
Tim Kowal: 36:18
go for the sophisticated pronunciation on niche and bonk but not annex party.
Frances Campbell: 36:24
Yeah, right was more like a party, isn't it?
Tim Kowal: 36:27
Yeah. It's more fun when you say it that way. Yeah.
Jeff Lewis: 36:32
All right. Well, we want to thank you for joining us on the interview portion of our program. The next portion of our discussion is sharing some recent news and research cases and tidbits. We'd like to stick around and discuss those cases with us.
Frances Campbell: 36:44
I sure would. Thanks.
Jeff Lewis: 36:47
Alright, Tim, why don't you lead us off? All right,
Tim Kowal: 36:49
Jeff. So the for the first case that I come across was I was reading Michael Shipley's blog. And he talked about a case from a couple months ago called jadi versus Brown. And it talks about settlement agreements and and the case points out under Rule 1.2 of the Rules of Professional Conduct when it comes to settlement agreements, attorneys must abide by the client's decisions on settlement. The rule 1.2 Unequivocally states that quote a lawyer shall abide by a client's decision whether to settle the matter. And the reason that came up is apparently in this case, I'm Johnny versus Brown, the the attorney did not want to go along with the clients decision to settle and cases have found that frustrating a client's authority when and under what terms to settle can constitute moral turpitude. So this all results in the Court of Appeal invalidating a settlement entered over the clients objection. And the Court declared the retainer agreement void. And the lawyers were reported to the state bar.
Jeff Lewis: 37:47
You know, I read that case, I thought it was odd as a public decision. It seems clients authority to be the final say on settling a case is pretty straightforward law. And the facts here were so wacky, have an attorney enter into a settlement over their clients objection. I don't understand why this is a published decision. I can't imagine these facts coming up again, that is interesting. Interesting read.
Tim Kowal: 38:09
Well, maybe attorneys need to be reminded from time to time.
Jeff Lewis: 38:14
All right. Next, our news and tidbits the Ninth Circuit is gonna resume in person arguments. In January, we'll post in the show notes protocol of basically one lawyer and I believe one or two assistants, either client or paralegal or second chair, can show up in person if they're vaccinated. If you want to show up remotely, I guess unlike the fourth three, they will allow you to appear remotely without a formal motion.
Tim Kowal: 38:41
Okay, let's see. I had another case that I wanted to talk about. And it had to do with with a standard of review and trial attorneys are familiar with the three common standards of review substantial evidence, abuse of discretion and de novo. But I wonder, Jeff, if you had ever heard or Fran, have you ever heard of the standard of review known as the finding compelled as a matter of law standard of review?
Jeff Lewis: 39:05
Frances Campbell: 39:06
No, you guys always scare me come up with this stuff that I've never even heard of.
Jeff Lewis: 39:10
It's Tim blame Tim for your lack of sleep.
Tim Kowal: 39:13
That's what I live for. So the case is King versus may Wesley. It's an unpublished case. But the the plaintiff there was the holder of a $12 million judgment against the defendant judgment debtor and the lead and allege that the debtor had engaged in fraudulent transfers of his wealth. The trial court entered a judgment for the debtor finding the plaintiff failed to reduce any evidence of fraudulent intent. But so this was a judgment for the defense and the plaintiff took this up on appeal. Typically, plaintiffs don't take a case up on appeal because you failed to persuade the finder of fact, you can't let you can't argue with the substantial evidence standard of review applies and see see I do some substantial evidence you had to give me you're obliged to give me a judgment. My favorite once I offer substantial leverage No, no, no, that's not how it works. You can the plaintiff can only get relief, if you could if the plaintiff can show on appeal that, that the evidence the plaintiff offered was so overwhelming and not contradicted at all by the defendant that a judgment in plaintiffs favor was compelled as a matter of law. So that's the finding compelled as a matter of law standard of review.
Jeff Lewis: 40:23
Okay, I'll add that one. add that one to the notes for everyone to read. Alright, next case, I want to talk about, you know, I'm always interested in citation of non published or unpublished decisions, and there was interesting dissent in October 15 opinion from the Ninth Circuit, the case called State Farm vs. Penske Truck Leasing company, and the majority majority of the set of a three panel of the Ninth Circuit had a tussle regarding citation to unpublished opinions. The dissent suggested that in areas where the California Supreme Court has not settled issue, that an unpublished decision of the California Court of Appeal could shed light on how the issue might be to see it decided in the future in California. The majority cited California rule of court 8.1115 A for the proposition that unpublished California appellate cases can never be cited by any other courts, not just California courts, but federal courts. But the dissent argued that the Ninth Circuit had relied on an unpublished decision or had relied on unpublished decisions in the past, and that three California Judges interpreting California law are far more accurate barometer of how the California Supreme Court would decide an issue, then a couple of federal justices. Anyways, interesting read if you're ever in need of authority for citing an unpublished decision while you're in the federal system, I'd recommend the State Farm versus Penske Truck case.
Tim Kowal: 41:48
Yeah, I've always thought that it would be a useful public service for a federal judge just to start citing all of the California non published decisions and that way we California practitioners can cite to that federal authority. And that way you kind of get in those none unpublished decisions through the back door.
Frances Campbell: 42:05
Yes, what a great idea.
Jeff Lewis: 42:07
I hereby support your nomination to the bench.
Tim Kowal: 42:10
Yeah, I just got to get the ear of some of a public service minded federal judge and I had a question about this case, Jeff and Fran, it's it's about statements of decision. So the case is legendary builders Corp versus Grovewood. properties. And it's an it's a helpful illustration about how you can set up a strong technical argument on appeal through by objecting to the statement of decision. So there in that case, there was an omission of a required finding in the statement of decision. And because a This finding was omitted, the appellant was able to obtain a reversal on appeal. But here's the catch. So this is so far, so good for the appellant. Right, you got the judgment reversed. But the remedy was, the judgment was vacated, with direct with with remand directions on remand for the trial judge to look at the record and decide whether the missing finding could now be made. So I wondered, did this actually get the appellant anywhere?
Frances Campbell: 43:07
Yeah. frustrating for the appellant. Oh, court, go back and fix your statement, a decision, please. So we could be done with your case.
Tim Kowal: 43:16
Jeff Lewis: 43:17
Might as well just affirm. Yeah. I wonder. I wonder, though, if appellate counsel had omitted the omitted issue issue regarding misstatement decision, with the result have been any different. I mean, it seems like if the Court of Appeal wanted to reverse it could have found a way to do so. And he'd want to just affirm, instead of making the trial court do this work, and they could have affirmed It's very odd decision, find really odd decisions in your readings. Tim?
Tim Kowal: 43:40
Well, and here's one other wrinkle. If the if the appellant had not done, done the homework and the trial court and have improperly objected to the missing finding in the statement of decision, then on on appeal, the Court of Appeal would have employed the the implied findings doctrine and assume that the finding was there, and then would have proceeded to determine whether the record contains substantial evidence to support that finding. And then if not, then it would have been reversed on the merits with a new trial order rather than with directions for the trial court to just make up the finding. In other words, it would have it would have eliminated a whole whole additional round in the Court of Appeal, because now what's going to happen is the case is going to go back the trial court is going to say, yeah, here's the finding that I forgot to do last time, you know, so assuming and then you take up the appeal again, and then it's going to be reviewed this time for substantial evidence. Why didn't they just review for substantial evidence the first time? Yeah, yeah. So very odd. Yeah. Yeah, I thought it was a very frustrating opinion.
Jeff Lewis: 44:42
All right. Final tidbit. I noticed from Ben Shotz blog, the Southern Californi appellate news blog at th California Academy of Appellat Attorneys has mad recommendations to the Judicia Council for making appeals mor efficient, and it's not a lon report. They have a number o different recommendations t make To get it to on this show but in general, the recommen shifting record preparation fro overburdened court staff to th parties using memorandu opinions in lieu of ful opinions in simple appeals, an having parties identify case early in the process as bein simple and worthy of memorandum opinion. And the finally, and not surprisingly the attorneys who make up th California Academy of appellat attorneys thought that th ability of attorneys to seek an obtain extensions for briefin that should be retained
Tim Kowal: 45:35
Jeff Lewis: 45:38
Are either of you a member of the California Academy of appellate attorneys?
Frances Campbell: 45:42
Tim Kowal: 45:43
just Oh, okay. No, it's one of my aspirations. Okay,
Jeff Lewis: 45:47
I nominate you. Alright. That's all I had. For tidbits there, Tim. All right, that wraps up this episode.
Tim Kowal: 45:53
Yeah, that wraps it up. Thanks again to Fran Campbell for joining us. If you have suggestions for future episodes, please email us at Cal firstname.lastname@example.org. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis: 46:09
See you next time.
You have just listen 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 a c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
Tim Kowal 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. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at email@example.com or (714) 641-1232.