CEB has published my article, “SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed.”
The article is about a recent appellate opinion, Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), that holds that an order on an anti-SLAPP fee motion is not appealable. But there are conflicting cases on this point, and the Ibbetson opinion, while trying to reconcile to disparate cases, potential added to the confusion.
The important takeways:
Here is a link to the PDF: Kowal_SLAPPFeeAward.pdf
Here is a link to the original blog post. https://bit.ly/3vhlIV7
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Trial judges issue tentative decisions, why don’t appellate justices? Justice Thompson draws from his positive experience as a trial judge enjoying improved oral arguments after issuing tentative decisions, and suggests that the Court of Appeal might enjoy the same improvement. But we might have to wait for a “changing of the guard” as younger justices take the bench before seeing a change in policy.
Watch the clip here.
This is a clip from episode 54 of the California Appellate Law Podcast. The full episode is available here.
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.
Need to catch up on important cases you missed in 2022? This end-of-year episode has you covered. Here’s the list:
Brooke Bove joined us to discuss her winning new trial motion.
(Ep. 57.)
Transcript:
Announcer 0:03
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 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
And I'm Tim Kowal. California appellate law podcast is a resource for trial and appellate attorneys. Both Jeff and I are appellate specialists, but we split our time about evenly between trial and appellate courts. And in each episode, we tried to provide some news and perspectives that our trial attorney and appellate attorney audience can use in their practices.
Jeff Lewis 0:35
And quick announcement. Our podcast is sponsored by the folks at casetext. Casetext a legal research tool that harnesses AI and a lightning fast interface helpful your spine case authority fast. I've been a subscriber since 2019. And I highly endorse the service and listeners of our podcast will receive a 25% lifetime discount available to them if they sign up at casetext.com/CALP. That's casetext.com/calp.
Tim Kowal 0:59
All right, Jeff, it's we're nearing the end of 2022. We thought we would compare notes on what cases and legal news stories struck us as maybe the most significant of the year. Most significant that is to generalist trial and appellate attorneys such as ourselves and our audience were not our criteria does not include significant substantive developments in the law that's beyond our pay grade. So we're looking back on 2022. Now with the hindsight of a statewide court reporter shortage, the changing of the guard and the top judicial seat in the state, which we discussed with David editor in Episode 53, and a number of vacancies waiting to be filled on the Superior Court and the appellate court benches that was covered in Episode 38, not delays in the third district. And we're now watching new judges and justices begin to decide cases. This reminds us of the importance of the continuity and legal training. And that brings us to the legal news and 2022 about law schools beginning to drop standardized testing and ranking criteria. We wanted to talk about some of the interesting cases that we covered on this podcast and beyond. I thought we would we kind of book in Jeff want to break in here?
Jeff Lewis 2:01
Well, I'm just gonna say for people who may not have heard all our episodes from the beginning, I know some people have only recently started listening. A lot of these cases we're about to discuss will reference earlier episodes. It'd be a nice index if you were to go back and catch any cases you missed.
Tim Kowal 2:14
Yeah, that's right. So we will reference what episode we discuss the cases in so log into ca l podcast.com. And you can reference the back catalogue there. I thought we'd start with i My vote is for the most important case for money litigators. Anyway, those of us business litigators who are fighting over money that business litigators need to know about the Civil theft remedies under Penal Code Section 496. And, Jeff, there had been some cases going back and forth on whether you can bring civil actions for under that penal code section. There are some cases that said yes, in some cases that said no. And we had waited in the Supreme Court for ruling on that and we got it this year in Serie investment LP vs to see if I can pronounce his name again Farrakhan to poor that was July 2022. case out of these out of the Supreme Court that held that you may still bring civil fraud actions under Penal Code Section 496. The court does provide some limits to it because they do not want you turning every garden variety business tort case into penal code for 96 case, but it does carry the benefit of treble damages plus attorneys fees. So if it does fit, in your case, business litigators need to have the Siri investment case in their back pocket. All right, let's go to some other top cases of 2022. Here's a list that I started some of my picks, Jeff, but you jump in if some of these cases are among your favorites as well start with a briefing tip. This is out of sync men versus imdb.com. This is this stands for the proposition that if you fail to bookmark or rather if you fail to cite to legal citations in legal propositions in your brief, those legal propositions will be ignored. I believe that's only going to apply to appellants, legal propositions. Respondents legal propositions usually are given the benefit of the doubt or at least the benefit of some additional research by the courts, research attorneys. But if you're the appellant and you don't cite to legal proposition, it will be ignored. We discussed this in Episode 23.
Jeff Lewis 4:09
And a secondary point from this case, if you're thinking about representing yourself and in case you've lost take a look at this case, the improper appellant didn't do so well.
Tim Kowal 4:17
Right. All right. Another case on dismissed appeals we covered Alexei and Ani LLC versus Warren in Episode 23, in which the case allowed an attorney allowing an attorney sanctions appeal to proceed even though the attorney was not listed on the notice of appeal. I thought this was interesting, Jeff, because I had previously gotten appeals dismissed on this very ground. This decision was unpublished, but it is instructive that courts may be looking to excuse appellants who fail to include the proper attorney appellant in the Notice of Appeal, so check out episode 23 For more on Alexei and Ani versus Warren. A couple appeals concerning court reporters Why shatel versus vo involved in dissent over whether a court reporter is really needed at oral argument on a motion to compel arbitration. The majority said it was a question of law. So the lack of a reporters transcript was not fatal to the appeal. But the dissent said that in close questions like this, a court should assume that something might have been said on the record that would have supported affirming. So that's something to be aware of. If you're in doubt whether you should bring a court reporter to a hearing, you probably should bring the court reporter. And again, noting as we said at the top of the episode, there is a court reporter shortage. So make sure you're sending lavish gift baskets to your court reporter vendors holiday season, we covered why shatel In episode 23. And we also covered our M vs. JJ on the question of if you don't have a reporter's transcript, Jeff, there are still provisions in the rules that allow for other forms of creating an oral record like the settled statement, but RM vs. JJ teachers don't even bother. You might not even bother with the settled statement, because the trial court has wide latitude of what not to include. And I've yet to see any limits to this latitude. I put an article on this. So we'll put that in the show notes. We discussed RM vs. JJ in Episode 40. We discussed a couple of criminal cases one of them had to do with let's see this was at a United States versus Olson The question was can the Sixth Amendment right to speedy trial be indefinitely postponed due to COVID? The answer was yes. If the defendant is not incarcerated, that was the Ninth Circuit decision. We've covered that in episode 25. On a related note, we also covered the right to a jury trial can the statutory right to a timely conservatorship jury trial be waived? The answer is yes. Even if the judge kind of pushes you around. So stiffen up that spine we discussed conservatorship of Joanne are in Episode 25. In that case, the Court affirmed the waiver of the right to a speedy jury trial that challenged 12 month conservatorship even though the trial court would not provide a jury until the ninth month,
Jeff Lewis 7:01
we also discussed that a jury trial can't be waived merely for failing to comply with local rules. I know down in Orange County where you and I have some matters bending they have rules regarding assembling a binder and meeting and conferring with counsel regarding joint documents, non compliance with these local rules cannot form the basis binding of a jury waiver. That was the amount of Moto V downs case from May of 2022.
Tim Kowal 7:25
Right and let's keep on a similar vein here right to there's cases dealing with the right to in person appearances, people versus Whitmore held that there was no right to an impersonal appearance it held that limiting a defendant to a virtual appearance, even though it was legally improper, created no harm. So it basically the appellant was not able to get over the prejudicial error, or hurdle. It sounds like we've discussed people versus Whitmore in Episode 34. And then Whitney, if you want to talk about zoom trials are they are
Jeff Lewis 7:57
not as as of the recording of this podcast in December of 2022. Zoom trials are no substitute for real trials. Not unless California legislature says so before July 1 2023. To met a great write up of the rice be super superior court case. And we discussed that in episode 55.
Tim Kowal 8:15
That is a space to watch in the first part of 2023. Whether the California Legislature extends the virtual trial statute and allows virtual trials to continue in place of live trials after July 1 2023. We have to go back to the presumption of the old normal, not the new normal.
Jeff Lewis 8:33
Right, right. And we also had Eric Kingsley on the podcast in Episode 49, discussing the US Supreme Court's holding in Viking river cruises, versus Marianna, and he talked about the future of paga claims. And I think I might need to go back and listen to that two or three times to really understand what he was saying. But if your practice involves pilot claims, it's a must listen to episode.
Tim Kowal 8:54
I have to say that that subject is very dense going but I thought Eric did did a great job in laying it all out. Another important arbitration related opinion was cloche versus California Commerce Club. I think it is that held that the right to arbitrate is not waived. Even after happily litigating for 13 months, the court found that the only prejudice shown was litigation costs and that is not enough to show prejudice. So the right to arbitration was held not waived and rehearing was granted and the opinion was partially published after publication requests from yours truly. Alright, Jeff, there were a few anti slap cases that we cover this being your bailiwick. I'm gonna let you have first crack which one you thought the most important? Choose wisely? Well,
Jeff Lewis 9:40
we had predicted earlier in the year that anti slap denials may not be appealable for much longer than I circuit based on some dissents. But I have to say, that has not come to fruition. I haven't actually seen the Ninth Circuit beginning moves to take on cases and re examine this issue. And so for the time being anti slap denials are appealable But we've covered that in episode 38.
Tim Kowal 10:01
Yeah, yeah. But they're appealable as collateral orders. So they go about it a different way, because they don't have they don't have the Code of Civil Procedure for 25 point 16 That or nine oh 4.1 That makes them appealable by statute. So they're appealable under the collateral order doctrine and judge breasts disagreed that they should be treated as collateral orders, but like you said, we haven't seen any more movement on that space.
Jeff Lewis 10:24
And then you actually got published in a legitimate publication for the proposition that anti sleep slap fee awards might be stayed on appeal. I of course vigorously disagree with that proposition but but congrats on the on the write up guy.
Tim Kowal 10:38
Wait Your sternly worded letter to the editor Jeff.
Jeff Lewis 10:42
Consider this podcast that letter?
Tim Kowal 10:44
Yeah, we've we've revisited that issue. That's an important issue to keep in mind. And it's one of those where there are two published cases on either side of the coin. So whatever position you find yourself in, there is a published decision to cite and under auto equity sales, you may the trial court may select either one that it feels more persuasive. So the Dalling versus Zimmerman is the case that Jeff likes to cite for the proposition that slap fee awards are special, they're super special and they're not stayed on appeal and coils vs. parent is the fourth district more recent case, better reason to case that holds that they are costs like any other costs, and they are automatically stayed on appeal. But either way you find yourself you have a published decision to cite we discussed that dichotomy in Episode 41. Yep, yep.
Jeff Lewis 11:30
And we discussed in Episode 47, that spending money on litigation is not protected activity within the meaning of the anti slap law. HIPAA case is really simply about the misappropriation of the money. And that was the Manland V. Milner case from August 2022 that initially was unpublished and then Tim put in a publication request and got it published.
Tim Kowal 11:51
But you co signed
Jeff Lewis 11:53
it. Yeah, it's probably I'm partly to blame. And we also covered in Episode 47, that opposing an anti slap motion outside the 60 day window is possible, but this case, Ray SV Escobar laid out the factors that have to be weighed by a court when you want to go outside that 60 day window. Let's shift gears and talk about Ms. Jays. Anytime a defendant is moving for summary judgment, they will frequently rely on the Union Bank case that discusses factually the void government sponsors to meet their initial burden and shift the burden to the plaintiff in a companion case, now I feel the US Bank, evasive discovery responses that are factual yet evasive, can similarly be used to shift the burden in an MSJ and that we've covered that in episode 42. Yeah, I
Tim Kowal 12:40
think those are always great procedural tips to be aware of for MSJ is another one on MSJ appeals. I know a lot of practitioners were watching the space after the read versus Google decision. The Supreme Court I think that was back in 2010. That cracked the door open and suggested that evidentiary rulings on in the MSJ context may be reviewed for on de novo basis rather than the more deferential abuse of discretion. But most District Courts of Appeal had said now we're going to continue reviewing them for abuse of discretion discretion. And the fourth district Third Division joined that chorus and said, No, we're going to we're just a ream of evidentiary objections lodged by the opposing party and court decided we don't want to have to read and review all that we're going to review it for that we're going to assume that the court did not abuse its discretion. And that decision is now published as well as a result of yours Julie's request for public publication. On the topic of expert witnesses be covered Durham cup Klein versus Zimmer. This was one of the many lawsuits filed by hip replacement patients against the maker of the Durham Cup The case is Klein versus Zimmer in a case out of May 2022. Out of the second district, the Court held that the trial court had committed structural error when it improperly excluded Zimmer's expert to rebut the plaintiff's expert. This was surprising because normally trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic dismissal. This was discussed in Episode 38. All right, let's talk about topics that make your head hurt Jeff mootness doctrine of mootness I hate the torture news, because it seems to me so unevenly applied, if you're the respondent, you can't count on the doctrine of music mootness to reliably win a motion to dismiss because mootness is a discretionary doctrine. But if you're counsel for the appellant, you have to lie awake at night imagining the ways that an ongoing litigation might moot your appeal and get it dismissed.
Jeff Lewis 14:42
And if you're an appellate justice that wants to avoid deciding an issue on the merits, you can certainly use the witness doctrine when suitable
Tim Kowal 14:49
that yeah, it is for any purpose that can be convenient to the court it can be applied or disregarded almost at will do we covered art work studio and classroom versus Leonean. This was a case in which the underlying lawsuit was not stayed. It resulted in the appeal becoming moot. We talked about the artwork studio case in Episode 31. We covered another case, ask the question, can you dismiss your lawsuit while it's on appeal? The answer is no. Under curtain maritime court vs. Pacific dredge and construction, we covered that on episode 31. Now, Jeff, I'll let you cover rock V Newsom, because I know you have an update on that case as well.
Jeff Lewis 15:29
Well, yeah, we'll each keep up with our separate lists of top cases of the year and this is one of my wants. It's on my list, Brock V. Newsom. This was a lawsuit that was filed by a school board member in my neighborhood pals Verdi's and attacked Governor Newsom measures in response to COVID-19. The District Court did something really unusual it granted summary judgment sua sponte dismissed the case, the Ninth Circuit affirmed, but mostly affirmed, I think, on the grounds of mootness, saying this really wasn't an open issue anymore. Given the schools reopened by the time the Ninth Circuit heard the two updates on the cases. First, Matthew Brock has sought reply the United States Supreme Court on whether it's truly moot or should be heard on its merits, and California filed a we're not going to really respond to this petition for certiorari response, and the Supreme Court said California we want to hear from you. So there's now a December 20 deadline for California to respond petition for certiorari, that's one update. And then second update is Matthew Brack is now a former member of the PV school board in losing his bid for re election.
Tim Kowal 16:26
Okay, great update. All right. And here's the final case in the subject of mootness. Here's the prompt. Jeff, have you ever had an appeal dismissed, it hurts Of course, it always hurts when you have an appeal dismissed. But there may be a silver lining. If the underlying if your appeal is dismissed, the underlying judgment may no longer have any preclusive value. And that's what happened in the published decision in park furred owners for a better community versus window showers. And I believe that the appeal in that case was dismissed on mootness grounds and the holding the outcome was that the judgment, the judgment underlying the appeal that had been dismissed as moot, was no longer had any preclusive value. And I thought, what kind of mischief there'd be no end to the kind of mischief that you could request that you just take up the appeal and then have it dismissed for failing to designate the record timely or for any other reasons. And then you sap the preclusive value. I just thought that was enormously surprising result. And
Jeff Lewis 17:19
every lawyer practicing as sequined needs to read that case, it's very counterintuitive.
Tim Kowal 17:24
Yes. We discussed Hartford owners versus winter showers in in Episode 52. All right, we covered some cases dealing with judgment collection. I think this was one of the more under understudied areas of the law, Jeff, and so we brought on a specialist in Episode 46, Joseph chore and we talked about all sorts of sneaky tips and traps in the judgment collection collection
Jeff Lewis 17:46
area. If you ever wanted to know when and how and under what circumstances you can seize a debtors pet in response to collecting on judgment. That episode answers that question.
Tim Kowal 17:56
That's right. Okay, we covered Sylvester versus Nick Parco. In June of 22. That was an unpublished decision. But the case held case involved a plaintiff and defendant who had agreed to use a general verdict form in exchange for a stipulation to limit judgment enforcement to insurance and indemnity. And I picked that case, I just was really surprised that you could do that you could limit your rights to judgment enforcement in exchange for horse trading on verdict forms. We discussed the Sylvester versus reparto case and episode 46. And then, more recently, we discussed wv 23 jumpstart versus my NAR sec. That was a case that held that personal jurisdiction is unnecessary to issue a judgment on an out of state judgment. So basically, if the case involved in a Nevada judgment against a series of judgment, debtors, the plaintiff decided I'm going to domesticate the judgment in California, even though it had no contacts with any of with the defendants. And then when the Nevada judgment expired, the plaintiff went and read domesticated the domesticated California judgment back to the original form in Nevada. And at that point, the debtor was jumping up and down and saying, What are you doing that this is now based on a judgment under which I had no personal, you know, no minimum contacts, there's no personal jurisdiction, the court said now that's okay. And so my two upshots from this case, that now I've been pushing on, anyone who will listen, is that if you have a judgment, then you might as well go in, domesticate it in a stay fresh jurisdiction like Delaware in which jurisdiction in which judgments never expire, go ahead and park your judgment in Delaware that way, in case you forget to renew your judgment, it will stay fresh in Delaware. And then also why not park it in a high yield jurisdiction like Rhode Island or Massachusetts, which gives 12% Post judgment interest, hey, why not let it let it rack up extra interest while you're waiting to find assets. And then once you find them, read them as domesticated wherever the assets are, and then you're off to the races. Right, so that was the wv 23 jumpstart case. We discussed that in episode 62. Or let's talk about sanctions as to trial. court sanctions. We covered a case everyone knows about the 21 day Safe Harbor. If you want to seek sanctions under one, CCP 120 8.5 Or one 20.7, you have to file a nice letter and attach a copy of the motion that you're planning to file and then wait 21 days this plaintiff or this moving party waited and filed on the 21st day. But finally on the 21st day is not waiting 21 days, it's only waiting 20 days and so jurisdictionally it had to be invalid. So that was the trans con financial versus redone. Hell your case. We discussed that in episode 58. And even though it wasn't in one of my asides on that cases, the court didn't get to the prejudicial error prong didn't say why the one day would have mattered. Right, right. All right. You want to discuss these, one of these cases on appellate sanctions? Jeff, I think you had covered one of these for us before.
Jeff Lewis 20:49
Yeah. So there's hayver versus JP Morgan Chase Bank case from July 2022. in which to in which the court advise the attorney think twice about clogging the docket, and we also covered up the pop top court versus Rakuten Kobo Inc. Case from July 14. Those are both covered in Episode 45, in which the dissenter just the majority had imposed over 100 grand and sanctions merely for filing a weak case, as does that warrant, the right of appellate review applies to even weak cases. Interesting reading for anybody who's seeking or opposing sanctions.
Tim Kowal 21:23
Yeah, I haven't looked. I haven't watched this space for a long enough period of time, Jeff, but maybe you have did it seem to you that there were more appellate sanctions awarded in 2022 than prior years?
Jeff Lewis 21:35
Certainly, I noticed them more. Yeah, I see them more. And also in my practice, I've seen them more and more.
Tim Kowal 21:41
Yeah, I thought this was this case, top top Corp versus Rakuten was presented interesting both sides of the coin, it showed majority who was kind of fed up with these with what it deemed to be frivolous or meritless appeals and then arguing for the other side of the equation, the dissent saying, Look, I'll grant you as a weak case, but weak is not the same as frivolous and $7,000. And sanctions for just a case that you find to be to lack merit or to be weak is chills due process rights to the right to appeal. We talk about motions for reconsideration. You know, we've talked about the fact that motions for reconsideration filed after a judgement are a moot point because once a judgment is filed, the matter is final. And your remedy now is an appeal or one of the other statutory remedies like a new trial motion or motion to vacate. There's no trial court no longer has jurisdiction to reconsider a judgment under its own inherent authority or even 1008. But we also talked about a couple of cases involving I remember the other the cases we talked about whether Okay, so compare these two cases banks versus master Arcos. This was a second district case that awarded $960 and sanctions against the plaintiff for bringing a frivolous motion for reconsideration. Basically, there was no new fact or law. So what do you do, and this is just wasting our time, you can't just reconsider an opinion, just decision just because you don't like it. I mean, compare that with brown Winfield and Kansas Cerrone versus Superior Court. This is a 2010 case. But it held that, quote, it should not matter whether the judge had an unprovoked flash of understanding in the middle of the night or acts in response to a party suggestion, which suggests that even if you are filing a motion for reconsideration, not because of any facts, new facts or law, just because you think that the judge, you know, maybe didn't weigh the factors correctly, should have should have granted my motion. And even if it's beyond the 10 day period, then there's no reason that the judge can't act on it in its inherent discretion. So those are two cases to bookmark on either side of the equation that yes, the judge can consider your motion for reconsideration and even act on it or the judge could sanction you for
Jeff Lewis 23:43
it. Right. Right.
Tim Kowal 23:47
Let's move on to payments of decision we talked about a couple of cases dealing with statements of decision this is a very important appellate procedure point. You ever talked to an appellate attorney get ready for a long discussion on statements of decision failure to request a statement of decision changed the outcome of the appeal in marriage of burger we discussed this in Episode 52. So even though the trial judge had issued a written decision, the appellant lost her appeal because she failed to request a statement of decision statement of decisions not just the same thing as the judge giving its thoughts on the record. Even writing a minute order containing those thoughts. A statement of decision is a different statutory animal. And even though the appellant had a statutory right to findings, she still had to formally request the statement of decision. But I noted that this reasoning appeared to contradict a similar circumstance in another 2022 published opinion in Abdelkader versus Abraham, when we discussed that in Episode 52, where there was a statutory right to findings in in a custody circumstance. And just because you fail to request the statement of decision does not abrogate your pre your independently existing statutory right to findings. So it's important I think either way you find yourself doesn't hurt to read request that statement of decision.
Jeff Lewis 25:02
No appeal was ever lost for requesting a statement of decision too many times. That's right. And hey, Tim, have you started adding under penalty of perjury, perjury signature line to all the memo of costs? You've been filing and your trial victories?
Tim Kowal 25:16
That's my suggestion after this case that we discuss Arabian versus triangle trucks. Senator, I haven't filed one yet. But what's your plan? Jeff, are you gonna start adding them?
Jeff Lewis 25:25
If I remember? Sure? Yeah. You bet. Ya know what November I rambled cos was ever rejected for the inclusion of perjury language on
Tim Kowal 25:33
it. Yeah, we covered this in in Episode 52. There was a dissenting justice notes that there is a fatal error in the judicial council cost memorandum form. So Rules of Court, the dissenting justice noted require that a cost memorandum be signed under penalty of perjury and Judicial Council form for appellate costs does contain that penalty of perjury statement, but it's not contained in the what is the MC forget Oh window or whatever it is the memo of cost form for for cost after trial. It's not contained there. So there was a big colloquy in that decision about whether prevailing party was entitled to costs because there was no, it was not it was not supported by an evidentiary showing. You if you want to do I'll cover the Trujillo case.
Jeff Lewis 26:18
Sure. That was the case of the odd result where a 998 offer which by statute is open 90 Day excuse me open for 30 days. The appellate court held it was cut off when trial court orally announced ruling on a summary judgment motion within those 30 days. So the Pei lawyer here had lost a summary judgment motion, at least verbally on the record had run back to his office sent an email saying I accept the 998 offer. That acceptance was held to be invalid. A very curious result and I just checked before we recorded this episode, and I noticed the losing party in that case, although they filed an unsuccessful petition for rehearing, they have not filed a petition for review and time to do so has expired. It looks like Trujillo is final opinion.
Tim Kowal 27:02
Yeah. And the other interesting thing about Trujillo is that it takes the complete opposite tack as the federal courts on this question under its substantively identical rule under FRCP 68. It's to the offer remains open for I believe it's 21 days under Rule 68. Even if there's been a ruling on a summary judgment motion that would seemingly render the offer futile or moot or otherwise stupid. It's still open under that statute. But California courts did not choose to go that route.
Jeff Lewis 27:34
There's no reason that Trujillo couldn't be applied in the context of dimmers or slabs or other dispositive motions when there's a nine nine offer made and within the 30 days that dispositive motion is verbally granted under trio those nine nine offers the ability to accept them could be cut off.
Tim Kowal 27:50
Yeah, that's right. One of the other oddities we pointed out is that the rule under Trujillo that's specific holding is that the the 998 offer is deemed to expire when the judge issues oral ruling on the MSJ. But what happens when the judge issues a tentative ruling on an MSJ? Then you could still accept the offer? Yeah,
Jeff Lewis 28:08
yeah. All right, Tim, now buckle up here. Here's my list that I came up with, with the seven biggest either stories or cases not necessarily covered on our podcast, the seven biggest stories that I think impact California lawyers in the past year or the year to come. Here we go with apologies to David Letterman. Number seven. Any pre litigation demand crossed the line into extortion and then failed to qualify for protection under Civil Code section 40 sevens litigation privilege? The answer is yes. If the attorney threatens to disclose the allegations to blow up the defendants potential merger, we've covered this in Episode 25. It's the case of Falcon brands eat versus Mousavi and Lee the great quote from that case, his lawyers argue for a living some do more than argue the least their settlement demands with threats. When does such activity cross the line to become professional misconduct? That is the fundamental question presented in this case. It's a great case for anyone who practices anti slap law, and it's another line for settlement demands. Right. Case number a thick is we covered this already Brack V Newsom, we gave that update case number five, or issue number five, the biggest story of the year is the court reporter shortage. You know, they just recently announced they're not going to have them in LA for Family Law probate restraining order courts. It's a growing problem regarding the appellate record. We're going to see more and more attempts to get settled statements. And I think the end of the story, perhaps as early as next year, is we're going to see legislation allowing recordings to be used in in lieu of court reporters and ultimately, AI generated transcripts, at least as a starting point for a transcript. I think that's the direction we're headed.
Tim Kowal 29:44
Yeah, yeah, that could be what do you think about this idea of Do you think that a lot of court reporters are getting snaffled up by private arbitration?
Jeff Lewis 29:52
You know, I don't think so because there's no data of suggest there's a increase in the combined demand for court reporters in terms of litigation and arbit tration The real problem is nobody wants to be a court reporter anymore. That's the problem and money throwing money at court reporters isn't solving the problem. The real problem is I've got technology that could fix the demand and just need the legislature to sign off on it. That's my two cents.
Tim Kowal 30:14
What is that professional just to remunerative and do flexible. The real issue
Jeff Lewis 30:20
is going to be the next year whether or not the reporters lobby will do anything to block legislation, legislative changes in Sacramento. It'll be interesting to see. Yep. All right. Number four on Jeff's list top issues of the year is the fall of Tom jority. Now my law school Loyola law school I used the Step Up Mock Trial courtroom, an entire building named after prom Gerardi and when I was in law school, I had friends that worked at that firm, so huge, prestigious, prestigious firm. And I was at school this year to give an anti slap M CLE lecture earlier this year, the building had been completely renamed, stripped of his name. And although it was late 2020 and early 2021, When news broke about Gerardi and a settlement funds being diverted, really the fallout didn't really start hitting the fan until this year. And just recently they discovered the former CFO for the firm, had a side fraud going on having nothing to do with Gerardi where the CFO is taking $10 million out of the firm and buying homes in the Bahamas. But the most significant part of the story isn't the misdeeds about Tom Gerardi or a CFO but how the State Bar looked away and disregarded numerous state bar complaints about him. The State Bar had received 205 complaints and 120 of those complaints in both client trust account matters. And about half of those complaints came out even before the public report reports about misdeeds about already came to light. And the LA Times recently reported that the same time that Tom jority was not being prosecuted, African American male attorneys had a higher rate of prosecution at the State Bar than white male attorneys. Interesting as and as a result of this mouth misconduct by jority. The State Bar has enacted new enhanced oversight and reporting requirements for California lawyers regarding trust accounts. Tim, I think every January now we have to sign new statements regarding our firm's trust account reporting and our ability in compliance with the rules. I think oversight trust accounts, it's really gonna be tightened in the years to come.
Tim Kowal 32:09
Well, I hate to see the reputation of the state bar being sullied by this this disparate impact. I wonder, what are they going to do? In response? Yeah,
Jeff Lewis 32:19
yeah. Well, I'm sure there'll be committees and commissions and reports. Yeah, I think for years, we'll be feeling this for years to come. Yeah. All right. Story number three on my list, National Pork Producers Council versus Ross. Now, Tim, it's not too often that state court appellate attorneys like you and me get an opportunity to discuss the Dormant Commerce Clause doctrine. I don't think those words have come out of my mouth since the 1990s when I was in law school, the Dormant Commerce Clause as a refresher legal doctrine that says states should not be able to pass laws that burden interstate commerce or discriminate against out of state businesses in subject matters where Congress has the power to regulate commerce, and the National Pork Producers Council case. The US Supreme Court has been asked to weigh in on California proposition 12, which is initiative that our state passed in 2018 impose conditions on how pigs and other animals are housed and cared for before they're slaughtered and sold in California for food. The law basically prohibits the sale pork in California if the pig was housed in a small cage. The case was argued in October of this year, and no opinions come out yet. repercussions in this case, we felt beyond food products will impact whether one state could pass laws that constrain the economics and policies of other states. One example that came up during oral argument over this case in the Supreme Court is that if Proposition 12, were allowed to stand, California could pass a law prohibiting the sale of pork, unless union labor was used in the process of slaughtering the pig. And at the same time at Texas legislature could pass a law prohibiting the sale of pork if union labor was used to slaughter the pig. And there could be a spillover to abortion rights, gun rights and other topics less divisive than how pigs are housed. I expect the Supreme Court will overturn Proposition 12. It'll be interesting to see what the court does.
Tim Kowal 34:05
Yeah, I have to say my gut reaction is that that would be an instance where I would like to see the Dormant Commerce Clause power use that would that would be a mess. That scenario your painting was Yeah, create a Federalist mess.
Jeff Lewis 34:16
Yeah. On both sides, it's just crazy. All right. Number two on my list, not a case. So much as it is a story about a defamation trial, Virginia, and the explosion of law tubers. It's the case of course Johnny Depp and Amber Heard for a few months. Everybody wanted to talk about topics such as actual malice, public figures and reckless disregard of the truth. Normally when I tell people at cocktail parties about the importance of requiring actual malice in a public figure defamation case, I'm usually met with blank stares. Occasionally people fall asleep. But this past year, everyone had an opinion one discuss Johnny Depp and Amber Heard. I have not seen this level of coverage and widespread interest since the OJ Simpson trial, the case launched a noose subspecies of social influence known as social influencers known as law, tubers, lawyers who sit on YouTube and explain the law on YouTube, and other social media, and I imagine this is an area of social media that will only only grow over time. Yep. Yep. All right, number one on my list. I know we try to stay away from politics and substance here on the show. We're mostly about procedure, but number one on my list has to be the Dobbs case. We're not going to get into the nitty gritty of the merits of the decision here, how it may have impacted the midterm elections. But the big story was the leak of the Dobbs decision, who did it and why still unknown how the Supreme Court reacted, how they investigated. So clerks how the leak came further erode trust in the High Court as an institution, the impact of jobs inside and outside the judicial system will be felt for years to come. For me, it's the number one biggest legal story of the year.
Tim Kowal 35:50
Yeah, yeah. It'll be interesting to to get one of those tell all books by someone at some insider in the court. Yeah. Yeah. Well, okay, let's circle back here to a couple of couple more stories that we covered on the podcast in 2022. These are a couple of cases or topics that I put under the subject of Tim's hobby horses. So one of my hobby horses or my soapbox, because I like to get on is about the no citation rule and unpublished decisions. Generally, we elevated this to a Full Episode and Episode 22 When we brought on guest, David Ed injure and Dean Bochner from the Horvitz and levy firm and I use the insight that they offered in their article about rule eight point 1115 In writing a request for publication in the dough versus software one opinion that we talked about earlier the case in which MSJ evidentiary rulings are deemed still to be discretionary. And it wasn't originally an unpublished case. But I took the insight that David and Dean made in their in their article from earlier this year that pointed out that under Rule point, limb 15 litigants are not allowed to cite and unpublished cases for any reason, including in petitions for review. And even though that's an accepted practice, it's still against the text of the statute. So I pointed that out in my request for publication that someone might like to raise your nice summation of the cases post read versus Google, but we wouldn't be able to under consistent with rule point eight point 1115. And that request was granted. So my other hobby horse is about the rule of jurisdiction concerning notices of appeal, what types of orders are appealable and the timeline to appeal, I wrote up a recent California Supreme Court decision and court of appeal cases that had forgiven untimely appeals. This was in re AR, this is a 2021 case. And in array b p a January 2022. Case and in 2021, the Supreme Court had issued a surprising opinion, the Court had held that an untimely appeal is not an absolute bar to appellate jurisdiction, at least in juvenile dependency cases. And the reason this seems surprising to me was that until that point, a uniformity of California cases had held that an untimely appeal was an absolute bar to appellate jurisdiction. But the court found I think, in that case, ineffective assistance of counsel provided a loophole to excuse the untimely appeal in that case, we also talked about in episode 42, the reed versus Aviva USA Corp case, an order granting summary judgment, although not normally appealable was held appealable in that case. So that's just one of those cases that we've talked about, Jeff, that, you know, it's not for nothing that otherwise non appealable cases or orders are sometimes deemed appealable. Because as an appellate attorney, when you look at this at a at a non appealable ruling, you tell the client no sit tight, don't appeal it. You can't appeal it. So just wait until the final judgment. But if but certain kinds of rulings, you have to put an asterisk next to it that well don't appeal it yet. But when you get today, you know, 5758 59 and if there still hasn't been a judgment, enter, give me a call. Maybe we'll have to take up a precautionary appeal anyway and see if the court wants to deem it appealable. Right. Let's see. And then we talked about that cynics have suggested that the jurisdictional deadline to file an appeal is quote only as jurisdictional as the courts want it to be that comes straight out of a Supreme Court dissenting opinion in Hollister convalescent hospital versus Rico. The Court recently recently acknowledged that this supposedly ironclad rule is in fact riddled with exceptions and the guard versus guard opinion from September 2020 to involve problems related to electronic filing. So if you have a problem filing a notice of appeal timely because of some snafu with the electronic filing system, you may be able to get your neck out of that news. So if you attempt to timely e file a notice of appeal, but something goes wrong. Here's what you do under the guards decision. First, you file the notice of appeal as soon as possible as soon thereafter as practicable as the Supreme Court puts it and at the same time. Second, file a motion in the Court of Appeal explaining what happened and showing good cause why the notice of appeal should be deemed filed as of the date of your timely attempt but don't wait 29 days is how long I think the appeal waited in the guard case, the Court held that that was not as soon as practicable through your appeal is still untimely. But that's an important case to bookmark in case everyone files these things by E filing these days and every now and then something goes wrong. All right, Jeff, that concludes my list. We've got some other topics we wanted to talk about. We amassed a lot of great legal writing and oral argument tips and other types of tip that we decided we're going to aggregate and put into standalone episode, we had some guests like Myron Moskovitz, we had MC Sungai lab, we had Ross Guberman, we had Ryan McCarl, just a lot of great Legal and General advocacy tips that I thought we would comprise into a single episode. Okay, and then should we do and then I'm going to go ahead and close with my vote for the top case of 2022. And, and maybe this I factor in that the soap opera value, and also the fact that Jeff, you and I kind of got a scoop in this case, but this is the victory bell case. This was the the case that involves the law firm social media cautionary tale. This was the case in which successful counsel had bragged about their defense in a medical malpractice case and describe the case as involving a guy that was probably negligently killed, but we kind of made it look like other people did it. And you know, Beckett, their law firm, they have a victory bell and they rang the victory bell while making that announcement, someone improvidently put that video clip and quote on the law firms website took it down promptly thereafter, but not soon enough for social media to make it viral. We had we were pleased to invite the attorney who wrote the successful motion for new trial. In that case Brooke Bove explained why her motion was successful. And it gives an inside scoop because a lot of commentators Jeff, if you recall, we're talking about oh, that out of you know, that's the judgment to be vacated. And a lot of attorneys especially good appellate attorneys would say that happened outside it's not a it's not a court irregularity. I don't see any grounds for a new trial. And I was among them. I didn't see any reason for a new trial. But after speaking with Brooke both, I understand it now. So take a listen to episode 57.
Jeff Lewis 41:59
Well, it's got my vote as the top yet are our podcast of interesting cases of people involved in cases on our on our podcast.
Tim Kowal 42:06
That's right. That's right. All right. Well, I think this is gonna be our next to last episode of 2022. We want to wish everyone merry Christmas, happy Hanukkah, happy holidays, happy Festivus whatever, however you celebrate, we help you do it in style this year.
Jeff Lewis 42:20
And before we let our audience go, I've got a Christmas edition legal tidbit that will warm your heart about the industry we all have chosen to work in this story comes out of North Dakota. It's about a law firm that decided to sue to former associates for a refund of their salary for not making their billable hours. Again, this happened in North Dakota. They these associates had a contract with a clawback provision. And if you don't make your billable hour requirements the firm's going to clawback the salary and some interesting facts about this case, the firm received $800,000 In PPP loans. The firm sent a bill to these former associates, the bill wasn't paid lawsuits were filed against these two associates. In summary judgment motions were granted against these two associates and the cases are up on appeal in North Dakota. So my Christmas message to all of you in our audience is Thank God we're not partners at or associates at that law. That's Bob buck.
Tim Kowal 43:21
All right. With that,
Jeff Lewis 43:21
we want to thank our key our sponsor casetext for sponsoring the podcast each week, we include links to the cases we discuss these in casetext and listeners of our podcasts can find a 25% discount available to them if they sign up at casetext/calp. That's casetextt.com/CALP.
Tim Kowal 43:37
And we want to thank those of our listeners who have already reached out to us with some excellent suggestions for future episodes. If you have a suggestion for another guest or topic for a future episode that we should cover, please email us at info at cow podcast.com. Or if you have either Jeff's or my email addresses, feel free to email us directly and in our upcoming episodes in 2023. As always, be sure to look for more tips on how to lay the groundwork for an appeal and preparing for trial. See you next time. And Bob.
Announcer 44:04
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a 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 Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Many years ago, I kept a blog that ran a short series called “A Plague on Words,” in which I criticized certain expressions I thought confusing or unhelpful. My entry on the expression “yeoman’s work” became a top Google search result, and earned me a lot of hate mail. But 12 years later, I pretty much stand by what I wrote. I reproduce the entry here.
“Yeoman’s work” is a term at the outer limits of usefulness in our lexicon. The term commonly refers to some manner of simple, honest work. So we must ask, why say “yeoman’s work” instead of just “simple, honest work,” or “hard work,” or whatever words express the actual meaning one intends to convey? For the reasons I explain below, “yeoman’s work” is probably not a clear or helpful expression and should thus be avoided.
First, most people don’t know what a yeoman is. Indeed, its use appears to be limited to forming half of the term “yeoman’s work.” And a Google search of “yeoman’s work” only returns 144,000 results, suggesting the term is hardly in common use. For these reasons alone, the term is probably a poor aid in conveying meaning.
Making matters worse, Merriam-Webster does not even have a definition for “yeoman’s work.” Instead, we have to search for clues to its meaning in its definition of “yeoman,” as follows:
1 a : an attendant or officer in a royal or noble household b : a person attending or assisting another : retainer c : yeoman of the guard d : a naval petty officer who performs clerical duties
2 a : a person who owns and cultivates a small farm; specifically : one belonging to a class of English freeholders below the gentry b : a person of the social rank of yeoman
3 : one that performs great and loyal service <did a yeoman’s job in seeing the program through>
The reference to “a yeoman’s job” in entry no. 3 above is offered in support of an already vague definition: “one that performs great and loyal service.” Adding to the ambiguity is the definition of “yeomanly” as “in a manner befitting a yeoman: BRAVELY.” This, and “yeoman of the guard,” suggest the primary meaning of “yeoman” is a ceremonial royal attendant rather than a peasant farm laborer, tending to further obscure what is meant by “yeoman’s work.”
It seems fairly obvious that the prevalent usage of the term “yeoman’s work” is meant to describe some manner of hard work. But it is less clear whether the correct image to be conjured is that of a yeoman official or a yeoman farmer. That is, it is unclear whether “yeoman’s work” is meant to describe loyal, fastidious, and regular service as by an official, or simple, repetitive, and laborious work, as by a unskilled laborer.
The relatively few court opinions that have employed the term—14 published opinions across all state and federal jurisdictions—apparently mean to simply convey “hard work.” In these examples, calling to mind an actual yeoman, whether a royal official or a peasant laborer, would not only fail to add more precision to the idea, it would actually confuse the author’s message.
For example, appellate courts have used the term in reference to the diligent hard work done by lower courts or attorneys:
The court did yeoman’s work in holding a prompt hearing, mastering the complexity of the issues and the physical shortcomings of the site, deciding the motion in a timeous fashion, and writing a thoughtful rescript that explained its findings and its rationale. Dealing with the record as it stands, the temporal constraints under which the district court labored, and the deferential standard of review, we have no principled choice but to uphold the challenged order.
Bl(a)ck Tea Soc’y v. City Of Boston, 378 F.3d 8, 15 (1st Cir. 2004).
The yeoman’s work of our judicial system is done by a single judge and a jury. Twelve ordinary citizens of Alabama are asked to sit through long days of often tedious and obscure testimony and pore over countless documents to decide what happened, and, having done so, to apply to these facts the law as the judge has explained it to them. And they do. Often at great personal sacrifice.
United States v. Siegelman, 561 F.3d 1215, 1219 (11th Cir. 2009) cert. granted, judgment vacated sub nom. Scrushy v. United States, 130 S. Ct. 3541 (U.S. 2010) and cert. granted, judgment vacated, 130 S. Ct. 3542 (U.S. 2010).
The appellant has done yeoman’s work in authoritatively arguing that warrantless electronic surveillance is a violation of a person’s Fourth Amendment rights.
State v. Armann, 554, 1982 WL 6176 (Ohio Ct. App. Aug. 18, 1982).
These examples seem to place the emphasis on the laboriousness of their work. Thus, as to the basic question of what sort of “yeoman” is probably meant by the term “yeoman’s work,” it would appear the mental image that better captures the meaning of the propositions is that of a peasant farmer and not a royal official. Describing something as “yeoman’s work,” then, carries the suggestion the work could have been done by anyone, and that the work is valuable only in a quantitative and not a qualitative sense.
In this respect, the term could be considered to be a somewhat backhanded compliment if it is taken to depreciate the merits of the work. For example, describing a researcher’s labor in the investigation of sources as “yeoman’s work” might suggest that the work was limited to the compilation of references and citations, and not to any high-level analysis of those sources to the proposition to be supported.
If this is true, then the only useful application of the term is probably in an ironic sense, as in a recent Seventh Circuit Court of Appeals opinion in United States v. Bailey, 510 F.3d 726, 730 (7th Cir. 2007):
All three defendants are members of gangs, though not the same one. Shane Williams is a member of the Black Disciples, a gang that began in Chicago and was eventually overseen by a man named Sylvester “Star” Mickle. Beginning in 1989, with Mickle at the helm, the Black Disciples developed a far-reaching drug-distribution scheme that ran from their headquarters in Chicago down to Peoria, Illinois. Eventually, Williams joined the operation in Peoria and, after a few years of yeoman’s work selling crack, he came to head his own distribution network in 1996.
Other than scoring some points for employing obscure language to convey simple ideas, “yeoman’s work” is not a useful term. In the aim of clearly conveying meaning, the term should probably be avoided altogether.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Have you ever felt the frustration of getting a stipulation from opposing counsel, only for the court to reject it? Well, when it comes to a briefing extension, the Supreme Court just ordered the Court of Appeal to give the full 60-day stipulated extension, and vacated the appellate court’s 46-day extension.
In Aaronoff v. Olson, the Second District, Division Two, apparently felt that briefing had gone on long enough. Due to a number of extensions and a consolidation motion after the record was completed, by the time the respondent’s brief was filed an alarming 11 months had passed.
So when the parties stipulated to a 60-day extension for the reply brief—which, combined with the 20-day period for that brief, would give the appellant 80 days to file that limited brief—the court pumped the brakes. the court “exercises[d] its discretion under rule 8.68, California Rules of Court” to partially grant the 60-day request, granting 46 days instead.
That was October 11.
On October 20, the plaintiff filed an original writ petition in the Supreme Court, Aaronoff v. Court of Appeal (Olson).
On December 9 (seven days after the reply brief was due, and was filed), the Supreme Court issued an alternative writ directing Division Two “(i) to vacate its . . . order, which partially granted the parties’ stipulated extension for petitioner to file a reply brief, and to issue a new order giving effect to the parties’ stipulated extension as filed, under California Rules of Court, rule 8.212(b)(2), providing petitioner until December 16, 2022 to file an amended reply brief, or (ii) in the alternative, to show cause before this court why it has not done so.”
The same day, the Court of Appeal changed the reply brief due date to December 16.
When the parties to an appeal stipulate to a briefing extension provided under California Rules of Court, rule 8.212, “[t]he reviewing court may not shorten a stipulated extension.”
Thanks to David Ettinger for reporting on this case. See his post for a more detailed legal analysis of extensions under rule 8.212.
Disclaimer: I joined an amici curiae brief filed with the Supreme Court on December 5, urging the Court to grant the requested relief.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Evidentiary rulings on MSJ are reviewed under the same deferential standard as given evidentiary rulings at trial—i.e., for abuse of discretion—but the Supreme Court cracked the door open on the possibility of de novo review in its 2010 Reid v. Google decision. Those hopeful for more the rigorous standard will be disappointed by a new recent published case.
We also discuss a recent case involving attachment orders in elder abuse suits. Namely, can you get an attachment in an elder abuse case? Maybe, but not based on statutory penalties, so the attachment order had to be reversed.
Cases discussed:
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Use this link to get a 25% lifetime discount on Casetext.
TRANSCRIPT:
Announcer 0:03
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 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
And I'm Tim Kowal both Jeff and I are certified appellate specialists and uncertified podcast co hosts, we tried to bring our audience of trial attorneys and appellate attorneys some news and insights they can use in their practice. If you find this podcast helpful, please recommend it to a colleague. Yes.
Jeff Lewis 0:34
And a quick thank you to our podcast sponsor casetext keys Tex is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a casetext subscribers since 2019. And I highly endorse their service listeners of our podcasts or receive a 25% lifetime discount available to them. If they sign up at casetext.com slash scalp. That's casetext.com/CALP.
Tim Kowal 0:57
Okay, and we're back with another episode of new cases for your attorney toolkit. We're going to talk about a couple of cases today one involving the topic of motions for summary judgments are evidentiary rulings in deciding a motion for summary judgment reviewed under the same deferential abuse of discretion standard as evidentiary rulings at the trial stage, or might they be reviewed under the more under the de novo standard of review? Well, a recent published case lays out the split of authority on that subject following the Supreme Court's opening up the can of worms in its read versus Google decision back in 2010. But it kind of closes the door on the possibility and suggests that that it's going to be abuse of discretion, but it is an issue teed up for a Supreme Court review. We'll talk about that decision. And we'll also discuss a recent case involving attachment orders in elder abuse suits. Namely, can you get an attachment in an elder abuse case? The answer is maybe but not based on statutory penalties. So the attachment order in this case we'll talk about had to be reversed. Alright, so the first case we're going to talk about dough versus software one. The question is, can you get a reversal on appeal based on the trial court's improper rulings on evidence ever since the Supreme Court's holding in read versus Google Inc. in 2010, practitioners have been waiting and watching carefully to see if a trend of more rigorous review of evidentiary rulings might emerge, at least in the context of motions for summary judgment read had applied de novo review rather than abuse of discretion where there were evidentiary objections made at summary judgment and where the trial court had failed to rule on them, as the Supreme Court in read had noted, it is hard to know if the trial court abused its discretion if it didn't exercise any. So that's how it came to the conclusion of reviewing them de novo. So supporters of that more rigorous standard of review have been disappointed in subsequent years that despite read every Appellate District seems to have been issuing published opinions distinguishing read for one reason or another and applying the abuse of discretion standard instead to evidentiary rulings on at the MSJ stage. In fact, there are only two published cases since read that have applied the de novo standard they are pipitone versus Williams 2016. case we'll put links to all cases referenced in the podcast in the show notes. And the other case, applying the de novo standard of review since read is Alexander versus Scripps Memorial Hospital, La Jolla, a 2018 case and that is an abuse of discretion standard is the standard that was applied in the recent case of dough vs. Software one, Inc. It's a fourth district division three case October 2022. It is a published opinion, the court decided to publish it after Gernon party requested publication that a nonparty happened to be yours truly, the court distinguished read and apply the abuse of discretion standard to evidentiary rulings connected with the motion for summary judgment. The fourth district noted that, quote, the weight of authority since read supports application of the abuse of discretion standard. And the court specifically pointed to the volume of objections raised there were nearly 100 pages worth of objections, the court noted this quantity. Well, this quantity is not unusual for a motion for summary judgment. And the court noted that we recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections without focusing on those that are critical. My comment on this, Jeff was that that's a completely valid observation that the court made, but I still had misgivings about treating hearsay objections as discretionary. Now, I don't know about you and when I was in law school, my evidentiary exam was multiple choice in the bar exam had evidentiary had multiple choice questions on hearsay. It's either hearsay or it's not it's not subject to good lawyering, the better approach in my view would be for the appellate courts to treat this issue as one of waiver. If you bombard the court with 100 pages of objections, and you don't follow up with them at the hearing and say, Your Honor, I need to know how the court rules on my objections as to this critical material fact, then I think it's fair for the Court of Appeal and the trial court to deem those objections as having been waived or 7437 C. In fact, Act requires that the objections be raised orally at the hearing. And so if the trial attorney fails to do that, and I think rather than de escalating the standard of review from de novo to abuse of discretion, couldn't the court get the same result by finding that the objections were waived?
Jeff Lewis 5:15
Yeah, interesting. Once again, let me say I agree and disagree with you on the issue of waiver. Yeah. If you only have 20 minutes to argue a case and you feel like an evidentiary issue is important. You could spend some of your 20 minutes arguing specific evidentiary objections as to specific evidence as a way of preserving that issue, and helping your assistance in terms of appellate review. But I have to say, on a practical level been doing this over 20 years, I don't recall ever succeeding on an appeal involving an evidentiary objection that was wrongly decided and change the outcome of an appeal. So that's kind of interesting, in terms of which standard of review applies, but they're both big hills that are impossible to overcome, in my experience.
Tim Kowal 5:55
Well, you may be right. But even if I grant that point, that it may not make a difference, if even if the Court were to find Yes, the court found that this was hearsay, when it was really not hearsay or vice versa. You know, we go to the second question of whether this was prejudicial to the case. Why not just decide on that second prong rather than turning evidentiary calls on black and white evidentiary issues into factor based or discretionary calls?
Jeff Lewis 6:18
Yeah, yeah, that's a fair point. You know, I think in the times that I've had appellate courts rule on the propriety of evidentiary objections, the ultimate outcome has been either it was harmless or not necessary for the court's determination.
Tim Kowal 6:30
Yeah, yeah. It's sometimes evidentiary calls are hard to make. But you always wind up having to do that second step. Was this evidence really that important that it really turned the tables? And usually the answer is no. And then you have to move on to preponderance of the evidence. There were so many wrong evidentiary calls that would have changed the whole.
Jeff Lewis 6:50
Yeah, I mean, let me say with the exception of maybe the parol evidence rule, which I've dealt with quite a bit on appeals, with exception of that which is more substantive and evidentiary. If you're an appellate lawyer, and you're drafting an opening brief around evidentiary objections, you should be having a long conversation with the client about the odds of winning or losing that appeal. Well, that's
Tim Kowal 7:08
right. Okay, let's go to the next case. This is Royals vs Lu, this the case where that talks about attachment orders in the context of an elder abuse case. So in the case of royals versus Lou at July 2022, published opinion, a nonagenarians new 35 years Jr. wife started liquidating his assets. And when she got wind of this, the daughter Lisa Royals intervened, and in her resulting lawsuit, not only did she allege almost $1.1 million in financial elder abuse, she also sought a writ of attachment for statutory penalties and attorneys fees three times that amount. And despite the requirement that attachments be based on retrospective relief, rather than prospective debts, the trial court granted the motion and issued a $3.4 million attachment order in that case, the First District Court of Appeal reversed Royals. His pleadings and affidavit were quote, unclear about what justified an attachment amount of more than three times the actual damages that Royals pleaded on information and belief and quote, and after the appellate courts request for supplemental briefing on that point, the court found that Royals elusiveness was troubling, the Court held that seeking damages based on penalties and punitive damages or in an open ended way to justify an inflated damages award cannot satisfy the attachment statutes. There was also an interesting procedural quirk in this case, because the trial court had actually ordered the attachment vacated, purportedly rendering the appeal moot. This was after the Appeal had been filed. And after there, there were some noises about the Court of Appeal, probably not going to affirm that attachment order. The Royals had gone back to the trial court and asked for it to be vacated. And the trial court granted that request and vacated the attachment order. And then Royals tried to go go and get the appeal dismissed as moot court said no way a trial court cannot vacate an order once it's been appealed. So that was I thought that was interesting. Yeah,
Jeff Lewis 9:10
that is interesting. As was your use of the word nonagenarian? I haven't heard that term before. What does that mean?
Tim Kowal 9:16
90 Something person?
Jeff Lewis 9:18
A 90. Okay. Got it. Great. Yeah, you know, attachment is kind of like preliminary injunctions. Attachments are a quick way to end a lawsuit before it starts by tying up and starving the other side of funds, they need to litigate the case. So it's not surprising to me that Court of Appeal kind of puts the brakes on overly aggressive speculative damages calculations, the right result from my point of view.
Tim Kowal 9:39
Yeah, yeah, I thought so. Okay, one last case. Jeff, you reminded me of this. I had I had seen this. This is let them choose versus San Diego Unified School District issued just just the week before Thanksgiving, November 2022. It's a published opinion out of the fourth district of San Diego. We talked about this case actual The after it was after the appeal was first filed back in January of this year. We talked about this with Rick Jaffe, in Episode 21 of the podcast. The trial court there enjoined the school district from imposing a vaccine a COVID vaccine mandate on preclusion grounds. The trial court enjoined it on preclusion grounds reasoning that the state's Vaccine Program preempted the field. And so if there was going to be any vaccine mandates, they had to come from the state who had already kind of inserted itself into this area. And we see this, we've seen this frequently in the federal context, but I hadn't personally seen it very much in the state context, the Court of Appeal did affirm the trial court's injunction of the order. So if there's going to be COVID Rule mandates, it has to come from state policy, not district by district currently seems to be the upshot of let them choose. Yeah,
Jeff Lewis 10:49
you know, it's interesting, I saw this, it came up with my Twitter feel feed Twitter still up and running, by the way. And I was surprised because a lot of people who are let's just say against vaccines, I had touted this somehow, as a court striking down vaccine mandates when it was really just striking down the idea of having a patchwork of different rules applying in different districts across the state wanting uniformity of approaches to the vaccines. And so that's what caught my eye.
Tim Kowal 11:14
Yeah, I haven't had a chance to read the opinion yet. It would be an interesting question. Generally, you'd like the idea of there, there being some flexibility based on region, if there's a region that doesn't have a lot of danger, or a lot of cases of COVID or any particular disease going around. You might like some flexibility, but I wonder if the state can provide for that flexibility, specifically, maybe
Jeff Lewis 11:34
a lot, a lot of cases were filed one in particular that I'm aware of BRAC V Newsom, that's still pending, I think before the Supreme Court is trying to decide whether to take review on that made that very argument that districts are not fungible, and some districts should have more flexibility and attacked Governor Newsom for trying to overly mandate a one size fits all approach to COVID. And ironically, this case says, yeah, leave it up to the states.
Tim Kowal 12:00
Yeah, yeah. It is a little bit each side trying on the others hat right. Beside you usually says let it go jurisdiction by jurisdiction is now saying it has to be one size fits all.
Jeff Lewis 12:10
Now let them choose the November 22. Decision. It'd be interesting to see if somebody takes that up to the California Supreme Court or let's that's that's be the final word.
Tim Kowal 12:20
Right. There was another interesting procedural tidbit in the let them choose case the Court of Appeal had granted the district's petition for supersedeas staying the injunction pending the appeal. So at least early on in the appeal, the Court of Appeal felt that the district's position was strong enough presented substantial issues warranting a stay of that injunction, and I don't think it in the interim there was I believe, don't quote me on this, but I believe that the district had not was not requiring the vaccine during that time that maybe it had stayed its own order. Its or its own injunction. But I did think that was interesting. Sometimes when you see a court grant super Sidious tends it may suggest that it's leaning with the appellate but that wasn't the case here. Yeah, yeah. Interesting. All right. And then we had just a couple of other tidbits. First one has to do with the San Diego District Attorney's office that was disqualified in a Black Lives Matter prosecution for having made public remarks that suggested bias the case is People vs. lastra that was issued in September of 2022. And there the Court of Appeal affirmed the trial court's recusal of the entire DHS office. Oh, sorry. I had been saying San Diego this looks like this was San Luis Obispo from prosecuting some Black Lives Matters protesters holding that the extra judicial comments of the district attorney might suggest that he might not prosecute the matter in a neutral fashion given his demonstrated antipathy to the BLM Movement. Instead, the California Attorney General's office will be the ones prosecuting the cases the DA is comment that got the office in trouble was made to a Facebook group and explaining the DHS decision to prosecute in the opinions description. The DEA is Facebook post stated that the DEA claimed indicated that the DEA claimed that the BLM Movement quote is domestic terrorism, quote downright evil, no brains or souls and quote and it posted pictures of a BLM billboard burning in flames. The other statement that was cited in the opinion was by Candace Owens and one Tony Perkins, two people with whom the DA had appeared at certain events. But I had noted that the opinion did not make it clear why these statements would be imputed to the entire da 's office. The Court of Appeal noted that in affirming it was deferring to the trial court's factual determinations.
Jeff Lewis 14:36
Yeah, you know, interesting, I had a few thoughts about this. One is could future members of the BLM were being prosecuted not necessarily for being involved in a BLM protests, but just They're well known BLM members? Could they also seek to recuse the entire DHS office in a future criminal prosecution? I wonder that and then I also, you know, I wonder how much of the outcome of this was due to just the deference of the Court of Appeal he'll say we're gonna defer to the trial court. Is it a better position to look at these issues and also this week there was news out of Florida, it kind of reminded me of this case that the Florida Governor, you know, had fired an attorney general who had publicly proclaimed he was not going to properly enforce anti abortion laws that AG has now filed lawsuit against Governor DeSantis. You know, this weird, blurred line between statements made by prosecutors and how they come back and bite you in terms of lawsuits or in this case, having a whole office recused?
Tim Kowal 15:29
Yeah. Yeah, tha tis interesting. It's a matter of the personnel becoming political vice versa. How much? You know, obviously, a lot of these actors, you do have opinions on these matters. Sometimes you'd like to think well, I'd like to know what their opinions are, rather than being quiet about it. And I just we never get to find out their motivations. Sometimes it's it may seem refreshing that they say what they feel they know there's, you know, sometimes we like to have the words out in the open so we don't find out find out about them
on the slide.
Jeff Lewis 15:57
Yeah, yeah, absolutely. Absolutely.
Tim Kowal 15:59
Okay. Yeah, Ithink that's all we had to cover. Jeff this week. Yeah,
Jeff Lewis 16:03
another quick thank you to our podcast sponsor casetext or listeners of our podcast, they get a 25% lifetime discount if they go to casetext.com/CALP, that's casetext.com/calp, you'll get a 25% lifetime discount.
Tim Kowal 16:17
And if you have suggestions for future episodes, we are coming up on the 2023 season of The California appellate law podcast. If you have suggestions for what we should be covering what guests we should have what topics we should be talking about on the podcast, please email us at info at Cal podcast.com. But as always, our upcoming episodes will be talking about more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis 16:39
All right, see you next time.
Announcer 16:41
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a 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 Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Isn’t it frustrating to find just the right case that supports your argument, only to notice that the case is unpublished? And lawyers are forbidden from citing to unpublished cases.
Don’t despair too much. Justice James Lambden (Ret.) notes that there are a number of published cases out there that lift the language or reasoning from unpublished cases. Remember that, in California, there is no horizontal stare decisis—which means the reasoning of unpublished cases has exactly as much binding authority on appellate courts as the reasoning of published cases. That is to say, neither published nor unpublished cases are binding on appellate courts.
So don’t fret: Make the best arguments available. If they’re supported by published authority, cite them. If not, don’t. If the arguments are any good, the appellate court will probably adopt them, even if there are no published cases on point. And if the arguments stink, the court will probably reject them, regardless of the citations to sister appellate courts.
And in arbitrations, the arbitrator can look at anything, says Justice Lambden, pointing to the Moncharsh v. Heily Blase decision. You can always find a way to get the reasoning into the case.
“The right answer,” Justice Lambden says, “is where you find it.”
Watch the clip here.
This is a clip from episode 51 of the California Appellate Law Podcast. Listen to the full episode here.
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.
Need to get attorney fees after winning your case? The deadline to file your motion is the same as the deadline to appeal, and here’s an example of the strange mysteries of the “triggering document” rules that trigger the 60-day deadline.
After a trust beneficiary won her first appeal, on remand in Karamooz v. Karamooz (D4d3 Nov. 14, 2022) no. G060515, 2022 WL 16918764 (nonpub. opn.) the probate court held a further hearing. Then the court issued a couple of rulings that are the pieces of the puzzle of the 60-day deadline:
First, in June, the court issued a tentative decision.
Then in July, the court issued a modified statement of decision and order. The clerk served a filed-stamped copy of the modification.
Finally, in August, the respondent served a notice of entry of the tentative—but not the modification.
The appellant filed her fee motion in October—within 60 days after service of the notice of entry of the tentative, but more than 60 days after service of the file-stamped copy of the tentative.
So was the fee motion timely?
Held: The fee motion was timely. Whether the 60-day period started running from service the notice of entry of the tentative or the file-stamped copy of the modification is a trick question: neither one was complete in itself, and so neither was effective to trigger the 60-day deadline.
Here is the black-letter law about the 60-day triggering documents to clip-and-save:
For the deadline to begin running under California Rules of Court, rule 8.104(a)(1), complete judgment must be served by the clerk or one of the parties. “[R]ule 8.104(a)(1) ... require[s] a single document—either a ‘Notice of Entry’ so entitled or a file-stamped copy of the judgment or appealable order—that is sufficient in itself to satisfy all of the rule's conditions .... [T]he rule does not require litigants to glean the required information from multiple documents or to guess, at their peril, whether such documents in combination trigger the duty to file a notice of appeal. ‘Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.’ ” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 905, italics added.)
Here, the tentative was not a complete document, because it was later modified. And the modification was not complete either, because it stated that the tentative “remains the judgment of the ... case” other than the modifications.
So the 60-day deadline was never triggered. So the 180-day deadline applied (Cal. Rules of Court, rule 8.104(a)(1).)
In fact, to the extent this was a tentative decision under California Rules of Court rule 3.1590, it was not appealable at all. A tentative is not binding unless the tentative contains a provision that it will become the statement of decision. (Cal. Rules of Ct., rule 3.1590(c)(1), (4).) And a statement of decision is not appealable. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) So in the absence of an appealable order, the fee motion arguably was not ripe.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
CEB has published my article, “Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds.”
The article is about a surprising recent appellate opinion, WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046, that allowed a Nevada judgment debtor to domesticate a judgment in California—even though the debtor had no contacts with California. And even more surprising, after the Nevada judgment expired, the court allowed the creditor to re-domesticate the judgment back to Nevada.
There are two reasons you should take strong notice of this case, particularly if other states follow this approach:
(1) Judgments accrue interest at different rates depending on state law, so consider domesticating all your judgments in a high-yield jurisdiction—the highest yields are in Massachusetts, Rhode Island, Vermont, and Washington, at 12%.
(2) Judgments lapse after a certain time depending on state law, so consider domesticating all your judgments in a “stay-fresh” jurisdiction—judgments in Delaware, for instance, never expire.
Here is a link to the PDF: Kowal_PersonalJurisdiction.pdf
Here is a link to the original blog post.
This case was covered on the California Appellate Law Podcast here.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
If you have a judgment against a debtor and you want to do some judgment collection in another state, is personal jurisdiction an obstacle? Do you have to show the debtor has minimum contacts with the other state? No, says a new published case. We’ll consider the possible effects of this — they are surprising.
On the perennial topic of deadlines for posttrial motions and appeals, we found yet another exception — if you file a DQ motion, that tolls the posttrial deadlines. Jurisdictional my left foot.
And finally, a new anti-SLAPP case with an expansive application of the litigation privilege.
Cases discussed:
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Use this link to get a 25% lifetime discount on Casetext.
TRANSCRIPT:
Announcer 0:03
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 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
And I'm Tim Kowal both Jeff and I are certified appellate specialists and uncertified podcast co hosts, we try to bring our audience of trial and appellate attorney some news and insights they can use in their practice. If you find this podcast helpful, please recommend it to a colleague
Jeff Lewis 0:32
and find it unhelpful. Please send it on to your opposing counsel. And a quick thank you to our sponsor case. Tech's casetext is a legal research tool that harnesses AI and a lightning fast interface help lawyers find keys authority fast, I've been a subscriber of casetext since 2018. And I highly endorse their service listeners of our podcast will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's casetext.com/CALP. And a quick thank you to our listeners. We're nearing the end of November, and we've had another record breaking month of downloads. So please continue to recommend podcast to others. All right, Jeff.
Tim Kowal 1:07
So it's that time of month where we catch up ourselves and our listeners on some recent cases that might be of use in our practices. So the cases we're going to cover the first one, if you have a judgment against a debtor and you want to do some judgment collection in another state is personal jurisdiction and obstacle. Do you have to show that the debtor has minimum contacts with the other state? Well, the first case we're going to cover says no, we'll cover the possible effects of this. They are surprising, I think, right. And then we're going to move on to another case. On the perennial topic of deadlines for post trial motions and appeals, we find yet another exception if you file a disqualification motion that will told the post trial deadlines, jurisdictional deadlines, my left foot Jeff, and then finally, Jeff, you found a new anti slap case with an expansive application of the litigation privilege. Those are always important to have in your toolkit. All right, so let's first talk about w v. 23. Jumpstart LLC versus my Narsing. That's a November 2022 case there are there are momentous post judgment opportunities suggested in a published case, the court there held that an out of state money judgment may be domesticated in California, even though California lacks personal jurisdiction over the defendant. There are two reasons you should take strong notice of this case, if other states follow this approach. First, judgments accrue interest at different rates depending on state law, so you should domesticate all your judgments in a high yield jurisdiction. The highest yield dates are Massachusetts, Rhode Island, Vermont, and Washington, all of which give post judgment interest rates at 12%. The other reason you should take notice of this case as a factor you should consider is that judgments lapse after a certain amount of time, depending on state laws in California judgment will lapse after 10 years unless you renew it. So you need to domesticate all your judgment or consider renewing or domesticating your judgments in a what I call stay fresh jurisdiction such that his judgments states where judgments expire only after a very long time. In Delaware, for example, Jeff, I learned that they never expire. So that a heck of a stay fresh jurisdiction. So you might consider whenever you have a judgment against a judgment debtor go ahead and domesticated in Delaware, because what will happen is it'll never expire. And if for some reason you forget to renew your judgment in California, you can just domesticate that domesticated Delaware judgment back in California today. All right. So here's just for background. Here's what happened in the Jumpstart case, Nevada had issued a one and a half million dollar judgment against some loan guarantors. The lenders then got the judgment domesticated in California. The Nevada judgment then expired a few years later in 2016. But the domesticated California judgment was still kicking around the Nevada based defendant mine arcic had no context or assets in California, as it turned out, jumpstart, then who became the assignee of the judgment wanted to resume enforcement efforts of the judgment against mine arcic Back in Nevada, but hey, the Nevada judgment had expired. It had been expired for several years by that time. So jumpstarted had this bright idea, why don't we just take the domesticated California judgment and then re domesticate it right back to its original form in Nevada, I thought that was a little bit like standing in a bucket and pulling yourself up by the handle but hey, it's worth a shot jumpstart figured and by now arcic, you know, I think reasonably raised a personal jurisdiction challenge to the California judgment and said, Hey, this judgment is no good against me. I don't have any person. I don't have any minimum contacts in California International Shoe International Shoe and all that the Sacramento Superior Court agreed with mine are sick. But the Court of Appeal reversed finding that a court does not need personal jurisdiction in order to domesticate a sister state judgment. And so that domesticated California judgment being valid plaintiff creditor was able to just take it right back to Nevada and domesticated as if that Nevada judgment had never expired in the first place. So I was curious to know what our listeners and what you Jeff think about this case and you think other states would follow this reasoning. This seems surprising to me because it seems surprising to you.
Jeff Lewis 5:04
Honestly, I'd say it's not all that surprising to me. You know, minimum contacts are due process considerations to make sure before you're held liable in a court that you have sufficient contacts with the state, the same concerns aren't really present for judgment enforcement. By the time you get to a judgment enforcement phase. Some trier of fact is already adjudicated you do processes already happen. The real question is, are there assets and should they be attached? And so I'm not surprised by this result, I do wonder, I always gotta look at the anti slap angle. Lots of people avoid filing lawsuits in California to avoid it's powerful anti slap law. And so I wonder if someone could go after defendant who lives in California in a different court for defamation, avoid anti slap laws, get a judgment and then waltz it back into California when it comes time for judgment enforcement?
Tim Kowal 5:50
Yeah, yeah. Well, that kind of neck kind of strategizing is came to mind when when I read this case, and I thought, well, if you got a judgment in California against the debtor, why not just take it? I mean, California has pretty generous post judgment interest rate at 10%. But if what's stopping you from from going ahead and getting a couple extra points on that and domesticating it in another state like Massachusetts, or Rhode Island, Vermont, or Washington, get it to 12%. And then once you find the cash, hoard, or civil assets, just can read domesticate that judgment back in California after it's been accruing interest at 12%. And then you've maximized your benefit.
Jeff Lewis 6:23
I guess that strategy works for hypothetical client with infinite patience. I haven't met such a client before.
Tim Kowal 6:29
Yeah. Okay. Let's move on to the next case about disqualification motions while post trial motions are pending. This is a little bit of a wonky issue, Jeff, so buckle up. You have to be a little bit nerdy to define this interesting, but simple. Yeah, I think we qualify, and a lot of our listeners qualify. There have been some cynics, Jeff that have suggested that the jurisdictional deadline were jurisdictional, be put in scare, quote, because the jurisdictional deadlines are only as jurisdictional, as the courts want it to be Court recently acknowledged that this supposedly ironclad rule is in fact riddled with exceptions. And here is yet another exception. We already knew that when a motion for new trial is filed, that extends the time to appeal by 30 days after the motion is denied. We already knew that the trial court's deadline to deny the motion is 75 days after service of the Notice of Entry of Judgment. That's all laid out pretty clearly in the rules of court 8.1 await and Code of Civil Procedure section 660. And these rules are treated as jurisdictional.
Jeff Lewis 7:26
Absolutely cannot be changed under any circumstance. Next story.
Tim Kowal 7:30
Yep. But But wait, Jeff, but if a party files a motion to disqualify the trial judge before the judge gets around to denying the motion for new trial, that tolls that 75 day period. So that's what happened in the Fourth District Court of Appeal case of gearing versus Garfield beach CVS, it's a November 2022. Case. It's an unpublished opinion after the trial court there had Nan suited the plaintiffs case the plaintiff moved for a new trial. But then three weeks later, and before the court had had a chance to rule on the new trial motion, the plaintiff moved to disqualify the trial judge. The opinion doesn't lay out the grounds for the disqualification motion, but apparently it was timely and well formed because it was sent over to another Superior Court Judge of a different county who ruled on it on the merits. But
Jeff Lewis 8:14
I wonder if somebody could use sham patently frivolous peremptory challenge to the judge or a for cause challenge of the judge to toll the statute? Toll the timing here. And if during the pendency before a judge rules on the timeliness of that challenge, whether or not these jurisdictional deadlines were told, but I'm sorry, go ahead.
Tim Kowal 8:34
Yeah, well, those untimely or malformed one 70.6, is if anything, the courts are pretty good at disposing of them pretty timely. But if it's a one 70.1, for example, and it has to be, you know, the allegations have to be evaluated on their substance. So under the normal rule, the motion for new trial would have been deemed denied automatically after the 75th day, but at that time, in this case, the disqualification motion was still pending. So even though the plaintiff filed her appeal within 30 days after the exonerated trial judge denied the new trial motion. The defendant argued that this was too late tried to get the appeal dismissed. But the Court of Appeal disagreed and said that the appeal was timely the disqualified because the disqualification motion had told the judges time to act on that post trial motion. So even though the rules of court at section 660 of the Code of Civil Procedure provide in case law provide the timeline is jurisdictional. We found another way that we can extend those jurisdictional deadlines and that's by filing a disqualification motion while a post trial motion is pending. Right? Right. One would expect one would hope that it's doesn't come up all the time, but it's these little unthought of exceptions that do tend to undermine the jurisdictional pneus of these rules.
Jeff Lewis 9:45
Yeah, and attention State Bar. This would make a great question for the appellate specialization exam.
Tim Kowal 9:51
Well, you really want to create a barrier to entry, don't you Jeff? Okay, and let's see what was The third case we're going to talk about today. Jeff, do you want to talk about this new anti slap case and the expansive new litigation privilege?
Jeff Lewis 10:08
Yeah, it's an interesting case arising from Orange County ruling by Judge Gregory Lewis No relation. The case is Timothy W vs. Julie W. It came out in October but it was ordered published in late November. And here's the setup. In a divorce proceeding, a wife hired a private investigator to do some digging around her soon to be ex husband's finances and some of his legal troubles some interactions he had with the FBI. And in the course of hiring this private investigator, the wife tells the private investigator an embarrassing fact that she learned from her husband during the course of their marriage, and the PII the private investigator in the course of this investigation discloses that embarrassing fact to other people that he's speaking to in the course of his investigation, and it gets back to the husband this PI's out there spreading information about the Husband Husband filed a lawsuit including 12 causes of action against his soon to be ex wife and the private investigator. And the life in the private investigator filed an anti slap motion arguing this is all covered by litigation privilege, private investigations part of the dissolution proceeding, trial court judge Louis granted the anti slap motion part grand like 10 out of the 12 cause of actions were dismissed granted six figures and attorneys fees and on appeal, everybody appealed. Everybody appealed the fees, everybody appealed partial victory on the slap. Enough, exactly. On appeal, the Court of Appeal found that the anti slap motion should have been granted in their entirety. And here are the things that I found interesting about the opinion, the Court held that all the husband's claims against his wife and her private investigator were barred by the litigation privilege, because the private investigator was hired to investigate the husband and the husband's finances and his legal troubles in connection with the pending divorce. And the court held that the act of hiring a private investigator is protected activity. I buy that and well I also buy that communications by the wife to the PII Hey, this is what my husband is or does I buy that that's protected? Yeah. The court went a little further and said that when the private investigator is out in the field, speaking with third parties weren't party to the case that those communications by the private investigator, it's not an attorney to a third party about husband that those were protected by the litigation privilege. I found that interesting and expensive.
Tim Kowal 12:21
I find that interesting and expansive as well. I don't understand the jurors the justification for why the litigation privilege needs to expand so far as to it expands to gossip by the professional. I mean, that seems unethical, doesn't it?
Jeff Lewis 12:33
Well, so. So here's the interesting thing. But the next thing about the opinion is the Court of Appeal never discloses to the dear reader what the actual embarrassing information is, what it is that the wife learn from husband and what the wife shared of the pie and the pie ultimately shared with third parties. And I wonder how the court can conduct a proper analysis of whether the lawsuit arises from protected activity without disclosing that fact? How can you decide that, for example, when the pie is speaking to a third party about blah, blah, blah? Yeah, what, blah, blah, blah, is is very important to determine this nexus between the litigation and the PII surfaces. Yeah, the whole
Tim Kowal 13:09
point of the litigation privilege is we need to be able to talk freely about this information to adjudicate these things. But we don't want to talk about this, because it's not relevant to the case. And it's just purely embarrassing isn't a kind of it seems like a tacit admission that he shouldn't have been talking about this stuff. This was just doing dirt on the on the husband, I will
Jeff Lewis 13:25
say this, there are lots of motions to seal the trial court and the court of appeals level. It perhaps the Court of Appeal did this analysis, but just didn't discuss it in its opinion, but they did the analysis. But I do note the case was published why publish a case that doesn't disclose the secret, the value or the use of the case in terms of precedent is a little bit limited if you don't know what the PII was exactly talking about. And the state of the law is right now with this case that communications either to or by a private investigator are subjected to the litigation privilege without too much resort to what he was saying.
Tim Kowal 13:58
Yeah, again, Jeff, I find myself I think it's the second case in a row we talked about on the podcast where we talked about a case where again, I'm philosophically opposed to unpublishing cases, but I kind of wish someone would file a motion to de publish this case.
Jeff Lewis 14:11
Well, you know, I always like to bring up slap cases. And then I secondarily always like to bring up cases where I can pin you to the corner and find cases that need to be republished.
Tim Kowal 14:21
You found two recently. All right, well, that's an interesting one. That's definitely one to go and your lawyers toolkit concerning the newly expanded version of the litigation privilege. It includes information disclosed to a professional who goes off and then squawks to third parties merely apparently, was there any rationale for the PII to talk to these third parties, and it was just gossip.
Jeff Lewis 14:41
Well, that's the thing. I mean, the discussion of the opinion suggests that it was necessary the Court of Appeal clearly assumed it was necessary, but unless you know what it is the big secret, do we really know if it was necessary,
Tim Kowal 14:54
talking about the identity of the third parties or their roles whether they had a role in the case? If
Jeff Lewis 15:00
Third parties did not have a role in the case, but they were really they had relationships with the players here. And, you know, it could have been a fact that was revealed in order to coerce a witness to speak to a private investigator. God. Okay. I don't know. And when such coercion be subject to litigation privilege, I
Tim Kowal 15:15
don't know. Yeah. Okay. Well, very interesting. Okay. Let's talk about a few tidbits here. Let's see, Jeff, you want to get us rolling with some recent news and tidbits?
Jeff Lewis 15:25
Sure. Let's talk about Judge Kelly Evans, who Governor Newsom appointed or nominated, I should say to the Supreme Court, the Commission on Judicial Nominees Evaluation, also known as the genii commission rated judge now justice Evans as well qualified for service on the California Supreme Court, and well qualified is good, but it's second to be exceptionally well qualified on the Jenny Commission's rating scales. Jenny report had a long narrative report about justice Evans his career and gave her great accolades doesn't really explain why an exceptionally well qualified rating was withheld from Judge Evans. It's interesting.
Tim Kowal 16:02
Yeah, yeah. And, you know, I thought this was of a piece with some other news we've been seeing. Here's another another tidbit. Judge Rawlinson says that schools law schools should ask themselves if the LSAT should be given less weight in their admissions processes. Her comments come as the ABA considers a proposal that would give law schools the choice of whether to require LSAT scores in admissions. And proponents of the change say that the LSAT can exclude a more diverse applicant pool from the law schools. And this is of a piece with another story. Jeff, do you want to share about law schools and the US News and World Report ranking system?
Jeff Lewis 16:40
Yeah, well, let me just say getting back to the LSAT, I would not be a lawyer. If the LSAT were not considered as part of the law school admission process. I had a fantastic LSAT score and less than fantastic college grades. So I'm personally biased. As to that story. All right, let's talk about UCLA has announced that it's going to join a number of other colleges or law schools that are withdrawing their cooperation with US News, the ranking system for ranking all law schools, Cornell and University of Chicago have also announced that they're staying in but a number of high profile schools have said that they're not going to cooperate any more with the ranking systems. But US News has announced that it will continue to rank schools even if they don't cooperate.
Tim Kowal 17:24
Yeah, that's right. You may not be interested in US News and World Report, but US News and World Report is interested in you.
Jeff Lewis 17:31
Right, right. And then we want to talk about a piece by Myron Moscowitz, where he called on justices to include more dissents in their pieces. Justice Moscowitz had a piece arguing that justices should dissent rather than simply sign on to decisions that they don't agree with the justice remains unconvinced on a significant issue. A judge should say so and tell the public about it to send work concurrence. What did you think about Myron Moskowitz piece?
Tim Kowal 17:57
Yeah, I liked his piece, I thought if there's an upside to having a body of non published opinions, and Jeff, you know that I've gone on record as being as having misgivings about the non published opinion protocol. But if there's an upside, it's that these non published opinions should be a safe space for justices to speak their minds freely. If there is no need to shape binding decisional law in a published decision or to mold a consensus, then why not just let her rip until the public what the Justice really thinks?
Jeff Lewis 18:23
Well, yeah, you know, some retired justices have let us know and appellate practice judges and let us know that dissents is a great way to attract the attention of the California Supreme Court in terms of getting review. And so having more dissents is a way for a dissenting justice to signal to the Supreme Court that change is needed.
Tim Kowal 18:40
That's right. All right. Well, that wraps up this episode, we want to again, thank casetext for sponsoring the podcast each week, we include links to the cases that we discussed using casetext and listeners of the podcast can find a 25% lifetime discount available to them if they sign up at casetext.com/c A L P.
Jeff Lewis 19:00
And we are cooperating with us news in terms of podcast ranking, so I just wanted to let you know about that. And if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal
Tim Kowal 19:13
when preparing for trial. All right, see you next time.
Announcer 19:16
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Having a court reporter can be critically important to create an oral record for an appeal, but it is not always necessary. Anti-SLAPP motions, for example, involve questions of law which are reviewed de novo on appeal, so a reporter's transcript is not strictly necessary. But what about on an appeal of an order of anti-SLAPP fees? The answer given in Beck v. Yozura (D4d2 Nov. 7, 2022) No. B313689 (nonpub. opn.) is: Yes, you need a reporter's transcript.
Even if it really seems kind of silly to require a reporter's transcript, like in Beck.
Cynthia Beck sued alleging that Josh Yorzura broke into her house, filmed the inside of her house as well as financial information personal identifying information about her Beck’s minor children, stole property, started a fire, and encouraged others to do the same. Beck sued for trespass, nuisance, conversion, arson, harassment, negligence, and injunctive relief.
Obviously, breaking and entering, theft, arson, etc. are not protected activity. But because the complaint also alleged he had published video doing it and asked the court to order him to knock it off, Yorzura sought refuge for his tortious conduct in the anti-SLAPP statute.
The judge agreed that the allegation that Yorzura’s videos “caused others to commit wrongful acts” involved protected conduct and did not have minimal merit, so struck it from the complaint. But the rest of the allegations—and every single cause of action—remained.
After this rather trifling anti-SLAPP success, Yorzura filed a motion seeking over $25,000 in anti-SLAPP fees. In opposition, Beck noted that, under Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, Yozura was not entitled to fees his success in striking the video allegations so insignificant that he could not be deemed a "prevailing" defendant. Beck also argued the fees requested were excessive given his limited success.
The trial court granted Yorzura’s motion in its entirety, reasoning there was “no practicable way to apportion fees.” Beck appealed.
The Court of Appeal affirmed. As to entitlement to fees, the court held that Yorzura’s limited victory did yield a practical benefit because striking the video allegations meant Beck would not be able to seek injunctive relief on grounds of likelihood of copycats. (But the court did not address the fact that Beck may still seek injunctive relief to prevent further dissemination of her financial information and her children’s identifying information.)
The hearing on the SLAPP fee motion was not reported. But Beck argued that this did not preclude relief on appeal, for two reasons.
First, Beck argued that the narrow exception she was arguing—i.e., that an anti-SLAPP movant that achieved no practical benefit is not entitled to fees—is a question of law. And on questions of law, a reporter's transcript is not really necessary.
The court rejected this. The court reasoned: “The court's determination that Yozura achieved a practical benefit was necessarily grounded in the factual context of the litigation, which that court was better equipped to assess than we are.”
(Comment: This seems spurious to me. All the evidence the trial and appellate courts considered on this point was the same evidence present in the anti-SLAPP motion itself, which is reviewed de novo. And more to the point, the right to SLAPP fees is defined by statute, which does not suggest it is subject to discretion. The “no practical benefit” exception established by Mann depends on a factual finding, i.e., a finding that there is no practical benefit. The court stated that “the parties disputed facts concerning the scope of the remaining litigation.” But whether there is a benefit of the SLAPP ruling at the pleading stage is defined by the pleadings. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211 [the pleadings in a plaintiff’s complaint frame and limit the issues of the case].) So to this extent, the facts—i.e., what the pleadings says—were undisputed, and so the trial court’s ruling on these undisputed facts should have been reviewed de novo.)
Second, Beck argued the trial court erred by granting Yorzura’s fees in their entirety, when he had only prevailed on a small sliver of his motion. Beck acknowledged that this challenge normally would fail without a reporter's transcript of the fee hearing. (See, e.g., Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1228-1229.) But here, the trial court had impliedly admitted in its written order that it did not consider the limited nature of Yorzura’s success by stating the court “sees no practicable way to apportion fees.”
The Court of Appeal disagreed that the trial court failed to consider the limited nature of Yorzura’s success. The court noted that the parties’ briefing addressed this issue, and its order cited Mann for the “no practicable benefit” exception.
And even if that were not enough, the court went on to state that “we would presume the court did so at the hearing, in light of Beck's failure to provide a reporter's transcript or authorized substitute.”
(Comment: It is true that a reviewing court reviews the trial court’s ruling, not its reasoning. For this reason, it seems immaterial whether there is a reporter's transcript: the Court of Appeal must affirmed on any available ground, whether or not stated by the trial court. But that rule does not apply where the record affirmatively indicates the trial court did not consider something. That is what Beck argued here. So it seems off the mark for the Court of Appeal to fault Beck for the lack of a transcript. And given the statewide court-reporter shortage, it seems imprudent to force litigants to bring precautionary reporters to hearings involving only questions of law and no testimony.)
As an aside, the court stated that Beck was not entitled to a more detailed discussion of the Mann factors “because she did not request a statement of decision.” Quoting Mann at page 342, note 6, "a trial court is not required to issue a statement of decision with regard to a fee award, unless a party timely requests one.”
Is a statement of decision available on a motion for attorney fees? Courts have been less clear on this subject in other cases. (Compare Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294 [“[W]e have discovered no case requiring a statement of decision for an order on a motion for attorney fees.”] and Abdelqader v. Abraham (2022) 76 Cal.App.5th 186 [absence of findings required by statute held reversible per se despite lack of request for statement of decision].)
(Disclosure: The appellant’s attorney, Jeff Lewis, is co-host of the California Appellate Law Podcast with the author.)
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
We know that anti-SLAPP orders are appealable—it says so right in the anti-SLAPP statute. But what about orders on anti-SLAPP fees? Appealability of fee awards are not mentioned in the statute. So the courts have been all over the place, with some finding anti-SLAPP fee awards appealable, some finding them nonappealable, and some finding them appealable in some situations but not in others.
The latest entry in the milieux is Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), where the trial court granted an anti-SLAPP motion to a cross-complaint—but only partially, so the case was not dismissed—and then the aggrieved cross-complainant appealed the resulting fee award. The Court of Appeal held that the fee award was not an appealable order, and so dismissed the appeal.
The court’s reasoning is straight to the point: The anti-SLAPP statute, Code of Civil Procedure section 425.16, says that orders granting or denying anti-SLAPP motions are appealable, but the statute says nothing about the appealability of fee awards. Without statutory authority making an order appealable, that’s the end of the analysis: anti-SLAPP fee orders are not appealable.
The court was persuaded by the reasoning in the published case of Doe v. Luster (2006) 145 Cal.App.4th 139 (Doe), which also held that SLAPP fee awards are not independently appealable. The Doe case involved both a denial of an anti-SLAPP motion and a denial of fees. Doe emphatically stated that “no plausible argument can be made that such an order [the fee order] is immediately appealable under section 425.16, subdivision (i).” (Id. at p. 150.)
The Doe court—and the Ibbetson court—relied heavily on the fact that when the Legislature amended the statute in 1999 to allow for an immediate appeal from an order granting or denying an anti-SLAPP motion, it made no such provision for orders granting or denying anti-SLAPP attorney fees. (Id. at pp. 144-148.)
Ironically, the same Fourth District, Third Division Court of Appeal that followed Doe here had found some wiggle room in the case of Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265 (Baharian-Mehr) (covered previously here). There, a defendant had appealed an order denying an anti-SLAPP motion (which is appealable under the statute), as well as the order denying anti-SLAPP fees (which is not made appealable by the statute). So did the 4/3 there agree with Doe’s boast that the appealability of the order denying SLAPP fees was supported by “no plausible argument”?
Not at all. Baharian-Mehr held that, so long as it has to review the denial of the anti-SLAPP, it might as well review the denial of the anti-SLAPP fees. After all, to defer the latter issue “artificially separates two intertwined issues” and potentially wastes judicial resources. (Id. at p. 274.) This “would result in absurd consequences the Legislature never contemplated.” (Id. at p. 275.)
So Doe thinks the result in Baharian-Mehr is supported by “no plausible argument,” and Baharian-Mehr thinks the consequence of Doe is “absurd.” How does Ibbetson square this?
The way the 4/3 addressed this stand-off in Ibbetson was to point out that, here—and unlike both Doe and Baharian-Mehr—the appellant was challenging only the fee award, and did not appeal the underlying anti-SLAPP order itself. Ibbetson noted that, in Baharian-Mehr, “[w]e agreed with Doe that ‘a separate attorney fee order should not be heard on interlocutory appeal[.]’” (Baharian-Mehr, supra, 189 Cal.App.4th at p. 274.)
That makes good practical sense. But this pragmatism on appealability undermines the formalism of Ibbetson’s ******************core holding. Ibbetson’s conclusion that SLAPP fee orders are not appealable is based on the simple fact that the statute does not authorize such appeals—the end. But Ibbetson does not disavow its holding in Baharian-Mehr, which does authorize appeals of a SLAPP fee order if it would be “absurd” not to, i.e, when the fee order is appealed along with the underlying SLAPP order.
Ibbetson also acknowledges that there exists support for the appealability of SLAPP fee orders under the collateral-order doctrine. City of Colton v. Singletary (2012) 206 Cal.App.4th 751 (Colton) held that the fee order was separately appealable as falling under the collateral order exception to the one final judgment rule. (Id. at pp. 781-782.) “When a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, direct appeal may be taken.” (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.)
So how did Ibbetson address Colton? Anti-SLAPP proceedings are collateral to the main issues, and they are dispositive, and it resulted here in an order for the payment of money. That’s the definition of a collateral order. The SLAPP fee award is an appealable collateral order, right?
Wrong, said Ibbetson. The Legislature specifically amended section 425.16 in 1999 to make SLAPP orders appealable, and the fact the Legislature did not take the opportunity to make SLAPP fees appealable ends the matter. “The Legislature having specifically provided one exception to the general rule, it cannot be presumed that any other was intended.” (People ex rel. Downey v. Downey County Water Dist. (1962) 202 Cal.App.2d 786, 799; see also City of Coronado v. California Coastal Zone Conservation Com. (1977) 69 Cal.App.3d 570, 580.) Ibbetson thus refused to follow Colton.
This reasoning seems faulty. True, the Legislature did amend the anti-SLAPP statute in 1999, and did not choose to make fee awards appealable. But following the same reasoning, the Legislature amended the appealability statute, section 904.1, in 2017, and did not take the opportunity to include the whole hatful of orders that cases have held to be appealable as collateral orders. Does the Ibbetson court mean to suggest that all those collateral order cases are undermined because "it cannot be presumed that any other [exception to appealability] was intended" to the appealability statute?
But although the Fourth District, Division Three declined to apply the collateral-order doctrine to anti-SLAPP fee awards, that approach is supported by published authority in the Colton case. Despite the conflict in authority, trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.