What was it like to give the first virtual oral argument in the California Supreme Court? And how did the Orange County District Attorney's office create a new legal precedent in California that effectively allows local district attorneys to pursue statewide enforcement actions?
Kelly Ernby of the Orange County District Attorney's office tells Jeff Lewis and me about her experience litigating Abbott Laboratories v. Superior Court in the California Supreme Court. In this Unfair Competition Law case challenging a pharmaceutical company's conduct inflating prices by delaying the production of low-cost generic drugs, Kelly suggests that defendants should be careful what they wish for: Had the defendant not challenged the DA's allegations about improper statewide practices, the Supreme Court might never have had the opportunity to reach the question whether the courts may fashion statewide remedies.
But now it is clear the DA may seek statewide enforcement, and the courts may grant it.
We also discuss a recent published anti-SLAPP case suggesting limits to the statute: when complaining publicly about a commercial service or product, just siccing a mob on a vendor is not a public issue.
We also discuss the Los Angeles Superior Court's new rule allowing attorneys to appear remotely in "business casual" attire. And just because you can, should you?
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
Cases and other resources mentioned in this episode:
Abbott Laboratories v. Superior Court (2020) 9 Cal.5th 642
Nede Mgmt. v. Aspen Am. Ins. Co. (Sep. 20, 2021, B307470)
Woodhill Ventures, LLC v. Ben Yang (Sep. 3, 2021, B305797)
LASC Press Release on Dress Code
Kelly:
Then the California District Attorneys Association of statewide DA's joined with the Attorney General. They all wrote an amicus brief against ur office saying we think the efense is correct. And so I was oing against everyone.
Announcer:
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis:
Welcome, everyone. I am Jeff Lewis.
Tim Kowal:
And I'm Tim Kowal, all operating under a provisional license from the California Department of podcasting. And Jeff, I, I get some questions about that gag. People asked me if there is such a thing as the California Department of podcasting, and if so, why am I on I was on probation from it, and it's because I keep telling them that the California Department of podcasting doesn't exist so not yet, not yet. I make the joke why the wild still there to be made. In each episode of The California appellate law podcast, we we provide trial attorneys with legal analysis and practice tips from an appellate perspective, both of us our appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. And in this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal. So welcome to Episode 16 of the podcast. And today we welcome Kelly Irby to the show. Kelly is a deputy district attorney in Orange County. She began her career at Gibson, Dunn and Crutcher and joined the Orange County District Attorney's office as a consumer and environmental protection prosecutor in 2011. She has argued and won twice in the California Supreme Court. So welcome to the podcast, Kelly.
Kelly:
Good afternoon. Thanks for having me.
Tim Kowal:
Yeah. Well, we're delighted to have you and great to have a twice victorious oral argument advocate out of out of the California Supreme Court. And I wanted to ask you how much as a deputy district attorney about how much of your work is appellate work?
Kelly:
Well, I've been at the office about 10 years now. And as you know, appellate work takes many years to get through the process to get up to the appeals. So if you want to talk about the number of years I've been doing appeals to get my two cases to the Supreme Courts probably been eight years total, starting from the beginning to the top and all the way back down. So but it's not the normal focus. It's very rare that anybody would go obviously, aren't you in the Supreme Court. So it's not supposed to be my regular practice area. But it's been a big part of what I've done so far, because of the cases I've done. So you're
Tim Kowal:
working your own cases up through through trial, and then on up through appeal? Are there any dedicated appellate attorneys in the district attorney's office?
Kelly
So the district attorney's office is typically built to be the criminal prosecution trial team and Attorney General's Office handles appeals from the criminal cases, generally speaking. So we do have a written appeals and law and motion department that is dedicated to the legal research and writing and arguments. And they handle mostly criminal cases. The work that I do is a specialty vertical unit, we call it and so us vertical days, we'll do our own risks and appeals work. So any number of there's 300 plus of us at the dean's office, we say we're the biggest law firm in Orange County, any number one of us could have had a case that takes us into the appellate courts. And we would argue that ourselves, if it relates to our personal case, so I can't say for sure how many of us there are, but we do have a dedicated unit that does do this type of work. And trial level mostly.
Tim Kowal:
Interesting. Okay. And then do you have the option to farm out some of your appellate work to the to the written appeals attorneys there in the in the office?
Kelly:
I actually have one case right now that that has happened, there was a motion to recuse our office. And so due to potential conflicts, we drew, you know, a line in the sand and said, You know, I won't do that appeal. And so our written appeal department took that over. So we can do that. It doesn't always happen. It really depends on the case.
Tim Kowal:
Yeah. Well, and I, I jumped right into what you're doing today. But if you would take a take a minute or two and tell our audience a little bit about about your legal background.
Kelly:
Yeah, so I started at Gibson done, as you mentioned, and I was a business litigator, specializing mostly in securities fraud for about 10 years, and did a lot of pro bono work, which is what really I always say lit a fire for me for public service and just decided I was wanting to do something more in the public interest. And so I lateral in, took a big pay cut and went to the dean's office because they were looking for somebody with civil experience. And so I came in to this special unit where I do environmental and consumer prosecutions. It's both criminal and civil practice. Very unique. And so now I've been there it'll be my 10 year anniversary at the DHS office in October. So I've been here about 10 years, been a lawyer, almost And I kind of made me feel like I'm like the jack of all trades, I'll do trials, I do civil, I do criminal, I go to the bill, appellate courts. And so whatever it takes to prosecute my case, or when I was a litigator, I would defend and, you know, make sure I'm doing the best to advocate for my clients at every stage of the process.
Tim Kowal:
Yeah, that does seem like a very unique mix of skill sets. And as you mentioned, civil to criminal and trial and appellate work. Are there. Are there many in the dean's office who have that kind of mix of?
Kelly:
No, there are a few of us, though, and people that are crazy enough to leave big law and just have the heart for public service. So there's a few of us big law firm lawyers that have lateral in and do both, and I'm, I'm on a lot of statewide task forces. So up and down the state, there are unique specialized prosecutors like me and the consumer environmental field. So there are it's a handful, it's number but there's
Tim Kowal:
so because, right? And so because you did not start your career in doing doing public law, you started in private practice where Jeff and I are at maybe you can answer this question. A good perspective on this question. I've never been able to wrap my head around the you know, Jeff, and I, whenever we want to do something, we always have to run it by the client, you know, what did the client say about this? What who is the client for you is, is is the county or, you know, how do you Where do you Where do you run things up the flagpole, they just go, they go up to the district attorney, that's your client?
Kelly:
Well, our client is the public. So that's actually part of the issue that we had to take all the way to the Supreme Court, because it's very confusing. People think we represent the county or who do we represent. And, you know, in the statutes, we represent the public, and we represent the people of the state of California. So it's kind of, I think, like being a class action lawyer, right? You have your client, but you're representing a class of people. So we have victims that we know their case, we know what the issues are. And the entire group of the public is who we're fighting for who have that same problem. And a lot of the cases what we're looking at were law enforcement. So we're looking at violations of the law. And that is a public offense. If you violate the law, it violates all of society, essentially. And so we look at the law violation, and we look at doing justice, just like we would do in a criminal case, all criminal prosecutors represent the people of the state, they don't have a client, they are looking to do justice. And and that is, essentially what we're looking towards is always what is the right thing to do justice in the case. In my civil cases, we're looking for injunctive relief, restitution orders, civil penalties and criminal cases, we're looking at incarceration, and we're looking at ways to punish and deter people from committing violations against others. So we don't have a person that we have to go to, per se, we have the law, the Constitution. And we look to the courts, which ultimately are the deciders of what the right you know, punishment remedy would be. So there's a lot of people that we answer to, I think, even more than in a private situation. And we take that very seriously. We have a lot of ethical obligations and trainings. As prosecutors, we say we wear the white hat. And so we work very hard to do the right thing.
Jeff Lewis:
So yeah, so on any given case, if you want to take a read up if a deputy da feels passionate about an issue, and it's ethical, does each deputy da basically have the discretion to take a read up so long as it's serving justice?
Kelly:
Well, we all work in my office for our elected official, Todd Spitzer is our elected DEA. And so we go through our own chain of command, and every case is different I, you know, I wouldn't say each of us has the discretion to just go and you know, file, written appeals, and most days don't want to ever touch that with a 10 foot pole. So there's a process and if it makes sense, we do, but I find in my practice, I end up in appellate courts, because the defense is filing and I go up against big firms, and they are extremely litigious. And they will, you know, get us up into the appellate courts and we fight back in the appellate court. So usually, it's we don't have a choice. We're there and we are opposing and fighting for what I said, justice and, you know, to get our case through to trial, usually,
Tim Kowal:
I would assume the most common appellate work in the district attorney's office is respondents work, is that correct?
Kelly:
Well, I guess you would say that not as many appeals as it is written, like ever, most of the things I've done are writs of mandate because the case is still ongoing. And so they're trying to get into the appellate court before the appellate you know, time frame has come. Most of our cases 99.9% of our civil cases settle before trial. So it's very rare that there's actually an appeal from one of the civil cases and as I mentioned earlier, the appeals from criminal trials go to the attorney general's office. And so the attorney general's office is really the Specialized appellate unit for criminal cases in California, so we don't have we don't do as many of those. Yeah, I'm out of the dean's office.
Tim Kowal:
Well, maybe I'm still operating under the assumption that most of the district attorney's cases are are criminal. But I keep overlooking that there's a fairly substantial a civil practice, what is the what's the rough breakdown,
Kelly
it's actually not substantial. It's very small portion, a very, you know, small group of us do civil prosecutions. A lot of them, though, are big impact cases. When we, you know, choose to go civil, it relates actually to the case, both cases that I argued in the Supreme Court were under the Business and Professions Code, section 17 200 unfair competition. So in private practice, you may be litigating unfair competition cases as well, because, you know, there can be private cases. But as prosecutors, we have the authority to bring unfair competition cases in a civil format. And usually those are against corporations. These are the white collar cases, it doesn't make sense. I mean, we're not throwing a corporation in jail. So you know, we have discretion to decide sometimes there's an option to choose, what makes the most sense to do justice in the case in a civil case, is more appropriate, and an a more appropriate forum to bring a corporation to justice. So in in those situations, we have a small unit of people, where are the we call ourselves the consumer and Environmental Protection Unit. And the unit can be called different things in different offices. So there's consumer protection only units, but we all have that authorization. Some city attorneys have units that do civil prosecutions as well, because they also have that authority, if you look in the Business and Professions Code, and those are mainly civil cases. So I would say a handful of us statewide, there's 1000s and 1000s of prosecutors in the state and you probably less than 100 of us that are trained and do these cases at the various DEA offices in the 58 counties.
Tim Kowal:
Right, right. So what are some of the criteria that apply that that you apply to determine whether you're going you're going to take up an appeal or a writ? And let's it sounds like most of his most of your most of your practices out of the Civil Division? Correct. So let's what are some of the criteria? Is it just too advanced? The advanced the case along? Is it too? Is there a determination about you know, the public interest involved? how important this is to, to to push this up? You know, push us up the ladder, so to speak?
Kelly:
I mean, it's the same thing that you'd have to argue to the court, why are we going to be using the Court of Appeals system and the appellate process, there's got to be an issue of first impression and issue of importance to the state. These are resources as a government attorney, we don't have a lot of resources, we don't waste our time. So if and, you know, the cases that I brought are hot, high impact cases, the decisions have impact statewide. And there are issues legal issues that we have been debating or fighting about or litigating for a long time. The first time, I argued was a preemption issue that impacted UCLA, we call them UCL unfair competition law case in a worker safety field. So that's one of my specialties is worker fatalities. And some of those cases are criminal under the labor code, we can bring an involuntary manslaughter type of charge. But many times we can go civil, and we had a preemption issue that all the defense were arguing, and I took it all the way Supreme Court, and it's not an issue anymore, because now we have a decision that is not preempted. And so those cases can move along. And then so it's really, we would be in the courts. And those instances, were driven to the Court of Appeal by the defense who wanted to bring these arguments, and we will fight them. And obviously I had to lose to get to the Supreme Court. So we end up in the appellate courts, because I win at the trial level, they appeal it. And when they win, we can't let that stand because that would be a published decision against what I think is well, first of all, and I was correct, it was not the law. And we petition to the California Supreme Court to have that reviewed. So those are my personal experiences. I'm sure there are other instances. But for the most part, you know, we want the law and the precedent to be correct. And as government prosecutors and precedent matters, because there's going to be a case following mine. And that guidance and precedent is very important to all the rest of the cases to come after this one.
Tim Kowal:
Let's talk about your more recent victory in the California Supreme Court in Abbott Laboratories versus Superior Court of Orange County. You had argued the district attorney argued in that case, it arose over claims that that some pharmaceutical companies were engaging in UCL violations unfair competition law violations. And the twist on this case was that the district attorney was seeking statewide enforcement of these claims. So it was not just limited to the geographical jurisdiction of Orange County. It was that the allegations were statewide, and the defendant pushing back on this and the Court of Appeal actually issued a writ against the district attorney to Strike the statewide allegations I understand. But in June of last year 2020, the California Supreme Court agreed with you that the district attorney could proceed with the statewide claims. Did I summarize that accurately? Yeah, nothing. You
Kelly:
did a good job. Yes.
Tim Kowal:
So how often does the district attorney pick up these kinds of public interest cases enforcing civil statutes?
Kelly:
Well, we have a unit that's all we do. So these are high impact cases. You the this case we're talking about was against Abbott Laboratories. It was an unlawful monopoly case. It's a we call it pay for delay where they paid off the generic drug supplier for a high cholesterol drug not to come on to the market that hurts consumers. It's unlawful. And the case that, you know, we we plead the case, as the statute says, So the issue that gets litigated in this case was a matter of legislative intent. And so we look at the statute, you'll know your trailers and felt lawyers, and but we're looking to interpret the statute and the statute says on its face, that we bring the cases, we are one of many offices that have the authority. We're like a law firm, just bringing the case on behalf of the public. And so it's on behalf of the people of the state of California. So what happened was the defense wanted to strike out any allegation where it said the word California in our complaint, so it was a motion to strike, which is pretty insane that that is the motion that led to this decision. But we were very surprised that the Court of Appeal would even go into this area on a motion to strike at the pleading stage when factually the allegations were factually true. And so a lot of wiggling and argument had to go into this to convince the courts that they should be ruling on this. And so a lot of our early fight was saying you shouldn't be weighing in on this case, at this stage, it's premature. And of course, they decided to take it anyway. And so I went in, and of course, you got to lose big to win big if you're going to the California Supreme Court. So I argued, and we had a great dissenting opinion by Justice dado, and he turned out to be right. And that was part of the reason I think we were able to get it into the Supreme Court to make new law. So it was originally this strange motion to strike procedure that got us into the appellate courts. We didn't choose to go into this. We were fighting against it. But once it once we were there, then I had to almost change my argument, because now I want the Supreme Court to look at it. And I found some case law that said, Well, now that there's a published decision, it's so important in an issue of statewide importance that the California Supreme Court has has to take this and that was the next hurdle. And then they did. And so of course, you know the results after that,
Tim Kowal:
right. Hey, let
Jeff Lewis:
me ask you this, Kelly, in light of this outcome that you achieve there in the California Supreme Court. I know you don't speak for the DHS office, but you yourself personally. Are there other areas, other subject matters beyond the pharmaceutical context where you would expect either Orange County or other jurisdictions to push for statewide consumer protection litigation in light of what Abbott ruled? Well, what
Kelly:
my argument was, is that we've been doing that all along for decades. So really, the law just hasn't changed what the argument that the fence wanted was to limit and somehow say no, and really, it's the court that would be limited, right? So we were already bringing the case on behalf of the people of the state of California. That's what the statute says that's what now the court of Supreme Court has said. And what that means is we're seeking relief on behalf of the public. That's the entire state, it doesn't matter what law firm filed the case, like a class action, right? It's about the relief for that group. And so the court is the one that decides what the proper relief is, what the penalty should be. And it's about the defendants. So section 17 206 of the Business and Professions Code lays out the factors that the court is supposed to consider when deciding what the penalty is, and there's no geographical barrier, you know, in this particular type of unlawful practice, in some cases, it makes sense, but but you can't go beyond the boundaries because of the violation and what the unlawful practice is. But in this case, it wouldn't even have made sense to try and narrow it down or draw the line around Orange County, and it's designed to, you know, primarily our primary relief is an injunction, and the injunction would apply statewide. That was never even disputed in our case. So they said that's fine, but we're gonna say even though the injunction is is statewide, your penalty relief can't be and of course, we won on that because the statutes don't say that that was a creative argument. But I will tell you the most interesting thing about this was the Attorney General got involved. They filed an amicus brief supporting the defense and then the California District Attorneys Association of statewide VA is joined with the Attorney General. They all wrote an amicus briefs against our office, saying we think the defense Correct. And so I was going against everyone and just trying to do my job and reading the law. And of course, we had to argue about what impact the Attorney General's opinion might have how influential that should be. And, you know, we argued it's it's their interpretation of the law is no different than what the courts and all of us can interpret. So that's very interesting from the case you write is
Tim Kowal:
Yeah, I read about the the, the amaka. spree filed by the attorney general's office, I was not aware that the the Association of District Attorneys had also taken the same position against your office. That's very surprising. And I wanted to go back to your your reference that that you were surprised at the defendant Abbott Laboratories position originally to file a motion to strike those allegations. And are you saying that, and I think you went on to say something like these allegations in in the complaint here. We're no different than any other UCL complaint that the DHS office might have filed. But it was Abbott Laboratories here who, who almost stumbled upon this, this new idea that that maybe there is no geographical limit to the court's orders here should the court rule for the district attorney, and it could be a statewide litigation. And that wasn't necessarily in the in in your mind when you filed it. But maybe Abbott laboratory, this is kind of like a cell phone. You know, they brought up the issue. They kind of teed up this issue about the extent of the relief that could be afforded on this complaint. And it turned into a California Supreme Court decision saying yes, the district attorney can file essentially statewide litigation. Yeah,
Kelly:
I think you summarized that pretty well, that the shocking part being and this is for your trial lawyers, right. When you're at the pleading stage, it's very rare, you're talking about, you know, what the amount of damages, and your world is going to be at the pleading stage. And you're going to be litigating how much in damages you can get that is, you know, that is not the what should be happening at the trial court level. And our trial court judge said that she's like this is premature, and there is no basis to strike the word California out of the weight, whether you are right or wrong, it's not time to address that issue at the pleading stage. And so it was just interesting that they pushed it at that level. But statewide, there had been a few other cases where the issue had come up. And of course, there was a dispute the Attorney General was taking a position contrary to our office. And so they believed that it was something that they should push. And obviously, if they would have won on the issue, they would have drastically narrowed down the number of violations and possibly the amount of penalties that they could be subjected to in our case, I could see from their perspective why they were pushing it. What I was just most surprised about is you know, I've worked for justice Huffman actually was one of the Court of Appeal justices in law school, he was on my panel, and he went against me, and I learned from him, you know, the standard of review, are you at the pleading stage, what you're looking at what the standard is, is the most important thing and all the work that we do as lawyers, and we shouldn't be striking out truthful, factual allegations at the pleading stage based on what the remedy should be. And so I was just completely surprised that the Court of Appeal took the case. And once we lost, we knew we had a good chance to get to the California Supreme Court. And now, thankfully, the issue is now resolved. And there are many, many actually pass judgments that would have been affected because our da is statewide have been filing these cases for decades, the UCL is not new. And there would be many, many judgments where da is had gotten relief for the public that would have had to be an overturned, this would have been a massive change in the law. And I always put on my defense how, you know, because I was previously defense litigator, like why would you guys want to face 58 separate lawsuits? Why would the defense really want that? So I thought it was short sighted by the defense to have done this as well, because they're shooting themselves in the foot long term. And they wanted to get an advantage in this one case. And so but now, we know it didn't really change much at all. And we are operating as statewide prosecutors the same way we always have. So I don't see this dramatic increase in cases or any of the things people said were going to happen. I don't see it. I haven't seen it. And we continue on the Supreme Court.
Tim Kowal:
I don't know if you can divulge this for this particular case. But maybe I can ask in general for these kinds of cases that I guess I don't know if it sounds like before at the district attorney would not necessarily intend these kinds of UCL cases as statewide litigation. But now you think that there certainly is that potential angle to a UCL case does the District Attorney's Office communicate with the Attorney General on these types of things because obviously the Attorney General So you think of as conducting statewide, statewide civil enforcement of these statutes? So is there is there collaboration between district attorney's offices and the Attorney General on these kinds of things?
Kelly:
Yes, absolutely. That was heavily litigated illegally, you know, the Government Code makes the DA is the public prosecutors, we had to brief that you'll see a little bit of that in the decision. It's not the Attorney General's job to litigate all the cases, they're to supervise and only intervene when a DA is not following the law or enforcing the law. So there's an interesting, you know, perception that the attorney general is this, you know, overarching prosecutor, they do the appellate work, they do very important work for the state. But the the code and you know, your prosecutors are really public prosecutor for all actions, generally speaking. But we do work together. That was all in the advocates briefing, we've worked together on statewide teams. So sometimes offices will collaborate and file cases together. And like I said, this has been happening for decades, this is not new, that we file it, we don't call it a statewide case, we call it the people of the state of California versus whoever. And, you know, technically, you could make that argument and any kind of a criminal case, you know, we filed that case on behalf of the public, not the people of Orange County, not the people of a certain city. It's on behalf of the public, because there's a violation of state law. So we are state prosecutors, and there's just many offices. So one of the big arguments also, that the court of you know, the Supreme Court was being flooded with, with advocates briefing is, you know, the, the reason that we have a decentralized system of prosecutors that can bring these cases is so that there's more enforcement actions are you can look through the legislative history. So on an appeal that deals with legislative intent, you get very bogged down with years of trying to read through the history and every amendment. And so we had to do that in this case. And you can see how the law developed and expanded the number of types of prosecutors that could bring these cases to enhance the ability to bring public cases. And you know, proposition 64. You guys probably remember that a few years ago, you as private attorneys used to have more ability to bring these cases and they wiped it out because it was abused by the private sector. And so US government, prosecutors are really the last line of defense for those people and the public and consumers when there can't be an expensive case or litigation, we are there to bring these cases on behalf of the public, right and protect them. And so, you know, let me Yeah, area,
Tim Kowal:
what would be the asset counterfactual question, what would the result have been if the Supreme Court had gone the other way and said, Yes, the DA has to strike all those allegations of statewide misconduct, you can only proceed within your geographical limits. I think the allegations of the UCL claim claim against Abbott was something to do with price fixing, I think, correct me if I'm wrong, it was it a generic drug, and it it should have been made a generic drug. But instead they kept it a name brand drug for longer than it should have been. So with the with the price have been different, lower in Orange County and higher in the red in every other county in California, if the Supreme Court had gone the other way?
Kelly
Well, I, I think what would happen is we would just have all 58 counties would file a separate lawsuit, and the defendants would faces a lawsuit in every county. And so then what would they do, you'd end up with a little mini MDL in California, or what we do is we go out and get all the prosecutors or we do have sometimes bring the Attorney General in with us. And then the Attorney General would either in the past sign off on that. And that was another thing that the trial court had mentioned. And we said, we are welcoming the Attorney General to come in here at the appropriate time and be part of whatever the resolution would be in this case and make any argument, you know, if there needs to be one, for the impact statewide, and our trial judge recognize that, and that was on that was litigated as part of the case too, that said, the Attorney General is free to come in here anytime they want, in any of these statewide cases, and we do work together with them there, you know, and we have an important, you know, partnership. So I think that it we would have worked it out where we're still getting statewide relief in a case that that needs statewide relief. And, you know, I think it would have been worse for the defendants. I my clients, I'd rather have one case, one resolution, and that's only one set of lawyers that I need to hire. And so another thing that I thought what are they? What do they think they're trying to achieve in the big picture? And I didn't think they were thinking straight for for the defense bar at large. So
Jeff Lewis:
just a thought, can I ask, can I ask what is the current procedural posture of the abbot case? Is it still pending?
Kelly:
It is yes, we are in discovery phase right now. So there's no trial date set, but the case is marching along and you know, takes takes a long time to get these cases. So
Jeff Lewis:
yeah. Yeah, not having jurors show up for jury service because a COVID doesn't speed things up. On the civil side, we're constantly being told the criminal cases take priority and all the germs are that do show up are being used up by the criminal cases.
Kelly:
Well, these 17 do hundreds this another issue went to the California Supreme Court during the same period was about whether or not there is a right to a jury trial in these UCL cases. And of course, there's not so Right, right, that issue on appeal as well. So yeah, there's been a lot of litigation, I think, over the UCL in the last many years. And I've been in part of at the forefront of a lot of them. So
Tim Kowal:
yeah, well, there was another important first in the Abbott Laboratories case, and that was that if I understand correctly, you gave the very first virtual oral argument in the California Supreme Court when you argue the Abbott Laboratories case, is that right? Lucky me. Yeah. No roadmap, nothing, nothing to go off of. So what was that like?
Kelly:
Well, I think I was more nervous about technology and issues dealing with the computer. And what were I was I going to be able to be heard all of these things that was also very early on in the pandemic. So we weren't a skilled at using zoom or what technologies but the supreme court clerks were very nice. They had a training for us, they helped us send us, you know, a guide. And there was one time during the argument that my computer froze, and I panicked, and it came back on right when I needed to do my rebuttal. So I got through it, but that was very extra nerve racking, I guess. And then, you know, we learned some lessons by you know, watching because you don't realize that everybody's watching you the entire time. And so you really can't put your head down or make faces, people are taking snapshots. So that I think there was a lot of learning, you know, a learning curve. And it was so early on, I had my kitchen in the background. So my dog was there was just not the same experience. You know, the first time I got to go to Sacramento to the oldest, you know, courthouse for the Supreme Court argument, and you just don't have that feeling of how important it is. But maybe that took the nerves off a little bit. So I'm in my kitchens. There's a lot of I think the pros and cons. I knew I was going to make it on time. I wasn't stressed to get there. And luckily, they had trained us and the technology works. So I actually think it was a positive experience. I couldn't really see the judges faces as much while I was arguing. So that's something that you miss, if you're virtual trying to argue,
Tim Kowal:
were they were they not on a individual feed? Were they all just kind of lumped together or Howard, how did they appear?
Kelly
They had him socially distant. And so I know one of the justice was like in an office and I think a couple were on the bench I can't remember exactly now, but they were not all together. And it was just hard to see. And they weren't able to do their normal interruptions where I wasn't sure if they were wanting to ask a question or not. So they had to kind of wait to the end and say, Does anybody else have any other questions? I know at one time, I thought one of the justices was raising their hand and they weren't. So that was a little awkward. I think in that respect, I'd prefer to be in person so I can see their face and they can you know, not try and interrupt me, I guess a little bit easier. Right. But I do think they got their questions answered. I hope so.
Tim Kowal:
Yeah. So you did have a hot bench, correct? Yeah. There was at least a few justices who had some concerns about statewide litigation. And so they had some questions and you were able to that they were they were decipherable over over zoom. What was the Supreme Court's platform at the time Did they? Are they using zoom? I forget.
Kelly:
It was blue jeans, blue jeans? Yes, cuz I think that's the only time I use blue jeans and now these Microsoft Teams and zoom and all kinds of different ones. So they they did a good job, I think, I don't know if they're going to still do it. Do you guys know if they're still? I haven't heard
Jeff Lewis:
any change to it. Yeah, the Court of Appeals still using blue jeans. And even though you know, many of the superior courts are kind of resuming business as usual, still have oral argument by video in the court of appeal.
Tim Kowal:
All right. Well, Kelly, our audience is mostly trial attorneys. So we'd like to try to share as many trial and appellate tips or war stories as we can do you have any any tips or war stories so you can share with our audience?
Kelly:
I think good tips are don't wave arguments at the lowest level, you got to be considering what might happen on appeal and be thinking about that your whole time when you're at the trial court level. A lot of times people try and make new arguments at the Court of Appeal level and you can't do that. And I see that all the time. And so I'm always thinking what is this going to look like if we have to appeal this issue? So I think that's you know, even when I work For the appellate courts in law school, that was one of their big tips and to always think about what the standard of review is. I also see in my practice, a lot of wasted time and resources. I know my clients would have fired me if I spent this much time and resources, filing useless writs on things that are not timely, they're not and they're, you know, postcard and and thrown away. And I think you should use your writ procedures wisely. I think, you know, that can help you during litigation, if it needs to resolve an issue that's going to impact the trial or your settlement you know, but just doing it to harass the other side I think it it's not effective, you're wasting your clients resources, litigate your case and leave the appellate work for the end of the case if it needs to are very important issues. And I think the Court of Appeal would appreciate that too. When there's there's just so much wasted rip practice, in my experience.
Tim Kowal:
Very good tips. I concur entirely. So now I think it's time Jeff for the lightning round.
Jeff Lewis:
Kelly, Have you listened to our podcast before?
Kelly:
I only listen once but I don't think I remember the lightning round.
Jeff Lewis:
It goes by very fast. We're gonna ask you a series of the most important vexing questions that concern appellate nerds around the world. And we'd like your short, short response, we get through these very important questions. Font preference, century schoolbook. garamond or something else?
Kelly
Oh, is use Times New Roman. Wow.
Jeff Lewis:
Okay. Your big
Tim Kowal:
long your barbarians there in the office.
Kelly:
I don't know what everyone else uses. But I stick I'm like a creature of habit. Right?
Jeff Lewis:
When you when you have some spare time, go on Twitter. And this will be called the pellet Twitter and search, search this question about Bob print prints and come back to us a week later, when he finished reading you'll see there's a wide ranging debate there.
Tim Kowal:
Okay, related note, if you could call it that
Jeff Lewis:
to space or one space after a period to Okay,
Tim Kowal:
do spaces? And are these district attorney office conventions? Or does every attorney do whatever they've been born and raised?
Kelly:
There's been always a debate about that. And personally, I just think it's easier to read with two spaces in between. And so I do what's easier for the court to read and easier for me to read and also find even my own notes, it's helpful to be able to see it that way for my own argument to see it with two spaces. So I just I'm used to that. And I'm not stopping No matter if they tell me it's right to use one or not. I'm always gonna have to. Well, you're
Tim Kowal:
in an illustrious minority on the position, at least at least in terms of California appellate law podcast guests, thus far
Jeff Lewis:
clad or pleaded. That's the correct answer.
Tim Kowal:
Jeff agrees with you. I disagree with you. This is what
Jeff Lewis:
I see violated all the time. And I just I don't understand why. When you have headings in your appellate briefs, argument, headings, all caps, initial caps or sentence case,
Kelly
depends which heading. So if it's the Roman numeral one, I wouldn't be all caps than the sub headers, I would use a sentence every word. Got it. capitalized. That makes sense.
Jeff Lewis:
All right. And the final and the most important question left justify or full justify, what's your preference?
Kelly:
It depends I change depending on if I'm worried about a certain page and keeping an argument together, I kind of will switch it and look at what it looks like. Just don't do the same. I don't use the same every time on that.
Tim Kowal:
Just for pagination purposes. Trying to get keep paragraphs together. You'll do whatever it takes.
Kelly:
Yeah, I try. And yeah, if I can you have an argument all together on one page, I'm very conscious about page breaks and where my arguments break and and so I look at that and try and make sure that I present my argument is presented the best way it can, because in the court of appeal, it's about word count. It's not about page count. True. So you can spread out the pages and you can make your argument more persuasive. I think if it's not broken up in pieces, and have it start, you know, fresh on a new page. I'm more concerned about that. Then the justification and I don't like when things you know, look weird on a page, so I might just change it to make it look better.
Tim Kowal:
Yeah, yeah, that's a good point. One of our guests who practices out of state he uses Times New Roman in his appellate briefs because they have a a page limit rather than, than a word limit. And he said, if it was a word limit, I would I would, I might change the font but because it's a page limit, Times New Roman is a little bit more of a condensed type typeface, so he uses times.
Kelly
That makes sense that, you know, it's trial lawyers. That's, you know, definitely important because you are on a page limit, right?
Kelly
Oh, and every now and then, I mean, don't don't tell my trial judges, but I'll kind of mess with the character spacing. I'm sure I do a very subtly only like a like a 10th of a point a no
Kelly:
more in here take me longer to read this brief. Why is this? Right?
Tim Kowal:
All right. Well, I think that's that concludes the lightning round. Kelly, I want to thank you for joining us today we're going to we're going to move on to some news and tidbits. So you're welcome to pipe in with any comments as we as we go along some some recent cases that Jeff and I have looked at and thought we'd share with our listeners.
Jeff Lewis:
Sounds good. Yeah. Okay. So this this first case that caught my eye this past month was Woodhill ventures versus Ben gay. And this is an opinion issued by division eight, the second district regarding anti slaps and social media. And the decision is of interest to me because it represents a very narrow application of the public interest requirement for defendants to prove in an anti slap proceeding. Now, let me just read from the introduction. I'll do this too often. I'll generally read to our audience, but I want it it's a good well written introductions. Let me just read from the beginning of the case. This case is about a birthday cake. self proclaimed celebrity jeweler jeweler and the baller Yang threw a birthday party for a seven year old son. His wife, Nicolette Yang, ordered a themed cake from big sugar bake shop, that she sent a picture showing her idea. Oh, when the cake arrived, the Yang's to their dismay, sod had realistic looking pills made a fun dawn, an edible icing. And the Yang's thought these cake decorations look too much like real medications. Yang called the bakery to complain and dissatisfied with the bakeries response, he aired his grievance to his 1.5 million social media followers. He also discussed his experience on his podcast Two years later, big sugar began receiving death threats. In negative reviews from gains followers. Big sugar demanded that Yang correct what it said were false statements. Yang refused big sugar filed a lawsuit alleging libel, slander and violation of the unfair competition law. And Yang responded with a special motion to strike the trial court denied Yang's motion. And the Court of Appeal affirmed because per the Court of Appeal, Yang statements about a bakery order did not involve the public interest. Tim, I do a lot of slap work. And I worry about how narrow the court to find the anti slap statute here. Why? Why do not agree with Yang's position? That because he's a celebrity, everything he says isn't necessarily in the public interest. There's a consumer protection element here that is lost in the courts analysis. Isn't the public entitled to know about a bakery that bakes cake decorations that look like medicine and pills on the cake? What do you think, Tim?
Tim Kowal:
I think the defendant Yang tried to make that argument he tried to make that public interest argument. And I guess the the phenomenon, the public interest phenomenon that he tried to tap into was this idea of candy confusion, that there's some phenomena of children mistaking drugs for candy. And and the court took that up and said, You know that that might be a public issue, but that's not the issue Yang raised he's the court said that Yang statements did not seek public discussion of anything, they aim to whip up a crowd for vengeful retribution. And I also thought the Court made a good point about how easy it could be for any attorney to take a client's witless comments and turn them into an issue of public interest. And
Jeff Lewis:
the courts quote was agile thinkers always can create some kind of link between a statement and an issue of public concern. All you need is a fondness for abstraction, and a knowledge of pop culture. So I wondered what you thought about that, Jeff? Well, I'm agile in abstraction, and I know something about popular culture. And I frequently represent Yelp reviewers regarding the anti slap like this, I'm concerned about this decision eroding some of the protections that have been established by earlier decisions that say, hey, Yelp is a public forum. When you talk about consumer protection issues, you qualify for anti slap protection, and therefore you proceed to prong two. I would like to see the courts err on the side of a broader reading of prong one. So that these cases are resolved on prong two, not on Prop one. That's just my two cents.
Tim Kowal:
Yeah, no, I think it's certainly both sides can be argued here. I wonder if the outcome might have been different if Yang the defendant here had not led into his tweets by I think there were tweets there on social media somewhere. I think he introduced his calendly calumny by saying let's have this cake Baker feel it y'all something like that. And it was he was obviously bringing on the mob. And I think maybe that that evidence of pretty obvious subject of intent of his of his statements, you know, were to work to cause a some sort of some sort of harassment rather than to initiate a public discussion about a matter of public interest. You know, that might have been what really turned the case against the the anti slap movement here.
Jeff Lewis:
Well, let me say this, and I'd love to get the final word. I'm not going to let you in this particular case, maybe that's the way this case should have turned out for this case, but they didn't have to publish it by publishing it and making this decision. sizable. It's going to cause problems for Yelp reviewers in the future. So
Tim Kowal:
that's my two cents. Yeah. All right, let's
Jeff Lewis:
let's move on to the next subject. La Superior Court just recently issued a press release announcing they're gonna relax their dress from the press release. They're saying that for non trials and less formal proceedings, they're going to lad allow relaxed business attire, which means, quote, a style of dressing for white collar employees that is still professional and appropriate for a both in person court and remote appearances, but less formal than traditional courtroom business attire. So for ask your opinion, Tim, let me ask you, Kelly in Orange County, are they relaxing the dress code at all for when you go to court?
Kelly:
No, they're not. And in fact, they are judges got upset that people when we were working all remote that they would show up on a zoom without looking professional. So I think we're sticking to the professional dress code in Orange County. As far as I can tell, our civil courts really haven't gone back live yet. So. But I think most of us dress professionally, even when we come on zoom.
Jeff Lewis:
Yeah, I've seen a wide variety of folks on zoom, the whole gamut. Let me say, I gotta say, I have concerns about this new policy that I think even if it's the policy of La spirit court, each judge is going to have their own internal policy and what they think is important. And just show up in relaxed business attire is a real gamble. What do you think? Oh, I
Tim Kowal:
think that's a good point. I had not thought about that. But But you're right, if a litigant, an attorney is looking at the LA Superior Court court rules and says, Oh, I guess I can show up and just just a collared shirt without a tie, and doesn't realize that that the judge is you know, a little bit more conservative than that, then you may be putting yourself and your client at a disadvantage. So yeah, I agree I, I just don't see myself ever showing up to court, whether in person or on zoom without the without a tie and jacket.
Jeff Lewis:
All right, final case I want to discuss here on the podcast. And that is one of my favorite tactics. To avoid getting bogged down in dimmers, you know, like big firms that gets done. They like to file dimmers, and he gets stuck in a battle of the pleadings. For years, one of my favorite tactics to avoid that is sometimes not appropriate case, I'll do a single cause of action for declaratory relief. And there's a lot of cases out there that say an action for declaratory relief is essentially demur proof. Because if you've pled facts, saying you're going to lose on a certain issue, you're still entitled ultimately, to have a judge tell you, hey, you lose on this issue. You're entitled to your judicial declaration. I bring this up because on September 20, the second District Court of Appeal issued an opinion it's a published opinion on this practice of using demur challenged declaratory relief actions, and the cases need management versus aspirin American insurance company, and we'll put a link to this case in the show notes. This case confirmed the usual rule that a demurrer is not the correct vehicle to challenge declaratory relief actions. But in this particular case, because the issues were all strictly legal in nature, the court appeals that no harm no foul, we're going to affirm the result below the defendants win. But you really shouldn't have used a dimmer to challenge this matter. It's interesting case for anyone who wants to learn up on this tactic of making a dimmer proof
Tim Kowal:
complaint. That's fascinating. Jeff, this is a this is something that I'll chalk up to having learned from doing this podcast with you. I was not aware of that rule. And I'm going to be thinking about that next time. Next time worried about drawing a demur on a complaint, see if I can add in some some debt relief actions.
Jeff Lewis:
Or let me add it if you're worried about a jury, if you're worried about the criminal cases, hogging up all the jurors, and you want to get to trial, having a cause of action for debt relief, rather than breach of contract or real property claim can help you get to a bench trial faster, just
Tim Kowal:
right, right. For those of you practicing and in federal courts of appeals Take note that the rules about the notices of appeals are changing in under the Federal Rules of appellate procedure effective December 1 2021. There's an amendment to rule three that eliminates some traps that litigants have been subjected to and now imposes a more liberal construction on interpretation of the notice of appeal. So specifically the notice of appeal in in federal courts now, we'll assume that they automatically encompass all of the prior interlocutory orders. Previously, there had been there'd been a risk of a waiver if you identify some prior interlocutory orders, but not all of them, you would be deemed to have waived the others that were not specified. And then also, if there is a reference to a final order rather than a final judgment, it will be construed to be an appeal from the final judgment and you won't be you won't be dinged for using the word order rather than judgment. So it makes the federal notice of appeal a little bit more akin to California notices of appeal in terms of the liberality standard in interpreting what you're appealing from. Alright.
Jeff Lewis:
I'm okay with that approach anything that opens up the doors to the Court of Appeal? I'm okay with.
Tim Kowal:
Yeah, it takes away a little bit of the heartburn from drafting the notice of appeal. All right. Well,
Jeff Lewis:
I think that wraps up this episode.
Tim Kowal:
Yeah, I want to thank again, Kelly Irby as our guest on today's episode of the podcast. Thank you for sharing your experience from the from the district attorney of Orange County's office and some of your successes in the California Supreme Court and the Abbott Laboratories case. And if you have suggestions for future episodes are California appellate law podcast, please email us at pal podcast@gmail.com. That's c a l podcast@gmail.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis:
See you next time.
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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 tkowal@tvalaw.com or (714) 641-1232.