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.
…unless the appeal is dismissed because it was premature.
If you remember one thing from this post, remember this: When an appeal is dismissed—even if dismissed voluntarily—usually that dismissal is with prejudice.
That is because of a statute, Code of Civil Procedure section 913. If you want the dismissal to be without prejudice, then the dismissal order has to expressly state “without prejudice.”
The order dismissing an earlier appeal of a pretrial sanctions order in Bush v. Cardinale (Sep. 27, 2022) No. A158757 (nonpub. opn.) did not expressly state “without prejudice.” So when the appellant appealed the sanctions order again—this time after a final judgment—the respondent pounced. The respondent filed a motion to dismiss the appeal. And the respondent cited section 913, arguing the prior dismissal of the appeal was with prejudice.
But for every rule, an exception. Here, the prior appeal was from a nonappealable order—i.e., from a sanctions order of under $5,000. That meant the Court of Appeal never had jurisdiction over the prior order, and thus could never have affirmed, which in turn meant that the dismissal could not have been prejudicial.
So the motion to dismiss was denied. But on the merits, the sanctions order was affirmed anyway.
Here is the authority to clip-and-save regarding dismissals of appeals:
“In general, if an order dismissing an appeal does not say it is without prejudice, then by operation of law under section 913 it is with prejudice. (Estate of Sapp (2019) 36 Cal.App.5th 86, 100.) A dismissal with prejudice has the effect of affirming the appealed judgment or order, and the appellant therefore is barred from challenging the judgment or order in a later appeal. (In re Jasmon O. (1994) 8 Cal.4th 398, 413 ["Normally the involuntary dismissal of an appeal leaves the judgment intact."]; Estate of Sapp, supra, at p. 100; Linn v. Weinraub (1948) 8 Cal.App.2d 109, 110 ["As the effect of the 11 order of dismissal herein was affirmance of the judgment, no second appeal from the same judgment can be maintained."].)
“But the statutory bar to a second appeal does not arise from the dismissal of an initial appeal that could not have proceeded on the merits, such as an appeal from a nonappealable order or a premature appeal. (King v. Goldberg (1958) 159 Cal.App.2d 543, 547-548 [predecessor statute to section 913 did not apply where first appeal was taken from a nonappealable order]; 9 Witkin, Cal. Procedure (6th ed. 2022) Appeal, § 790 [general rule that dismissal of appeal operates as affirmance is subject to an exception: "Where the appeal is void, e.g., because taken prematurely, it does not deprive the trial court of jurisdiction over the judgment and does not give the appellate court jurisdiction to affirm it." (Citing Estate of Kennedy (1900) 129 Cal. 384, 385.)].)”
Here, the prior appeal was from a sanctions order of $2,000. Sanctions orders may be independently appealable under the appealability statute, section 904.1. But only if the sanctions are for more than $5,000. The prior appeal was premature from a nonappealable order. So the dismissal of that appeal was not prejudicial.
Comment: Proceed with caution when dismissing an appeal. Even in this case, I am not so sure the prior appeal was premature or taken from a nonappealable order. True, the sanctions order was not more than $5,000, and section 904.1 says only sanctions orders over $5,000 are appealable. But there is also authority saying that sanctions against an attorney are appealable as collateral orders. (Bauguess v. Paine (1978) 22 Cal.3d 626, 634, fn. 3 [ 150 Cal.Rptr. 461 , 586 P.2d 942]; In re Marriage of Gumalbao (1984) 150 Cal.App.3d 572, 574-575, fn. 2 [ 198 Cal.Rptr. 90].)
The only way to really be sure: Take the appeal from the earlier order, and oppose the motion to dismiss. If the Court of Appeal dismisses on grounds it is premature, then you know. But I would not want to risk the Court of Appeal later concluding that the earlier order might have been appealable as a collateral order.
H/T to the California Attorney Fee Blog for mentioning this case.
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.
Earlier this year, the almost $25,000 in sanctions turned heads in Clarity Co. Consulting, LLC v. Gabriel (D2d6 Apr. 12, 2022) 77 Cal.App.5th 454. (We covered Clarity in episode 31 of the California Appellate Law Podcast.) But there are two important lessons about anti-SLAPP motions in the case, involving a garden-variety contract complaint for failing to pay a service agreement. They are worth bookmarking, as they still come up too often in anti-SLAPP motions:
Finally, the Clarity court offers this PSA on behalf of appellate attorneys everywhere:
“[T]rial attorneys who prosecute their own appeals … may have ‘tunnel vision.’ Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice." (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450, 77 Cal.Rptr.2d 463.)”
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.
The California Supreme Court is getting a new chief justice. What does it mean? The author of prominent legal blog At the Lectern, David Ettinger, joins co-hosts Tim Kowal and Jeff Lewis to look back on Chief Justice Tani Cantil-Sakauye’s 11-year tenure, her legacy, her replacement, Justice Patricia Guerrero—and why is the governor “appointing” a new Supreme Court justice when the state constitution says he needs to “nominate”?
David’s critical coverage of Gov. Newsom’s decision to “appoint” rather than “nominate” drew a phone call from the governor’s office, which he discusses.
Other topics discussed include:
David Ettinger’s biography, LinkedIn profile, and At The Lectern blog.
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 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:
David Ettinger 0:03
We may start off with a broad opinion. But as we weigh, as we each weigh in, we start to narrow it because we realize we don't need to speak so broadly.
Announcer 0:13
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 0:27
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:29
And I'm Tim Kowal, the California appellate law podcast as a resource for trial and appellate attorneys. Both Jeff and I are appellate specialists. We split our practices about evenly between trial and appellate courts and we try to make this podcast a resource for trial attorneys and appellate attorneys to give them some perspectives they can use in their practice.
Jeff Lewis 0:47
And a quick announcement the podcast is sponsored by casetext, casetext, a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber of casetext since 2019. And I highly endorse the service listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up at casetext.com/CALP. That's casetext.com/CALP.
Tim Kowal 1:12
Today, we are pleased to welcome David Ed injure to the show, David has briefed and argued many notable appeals including more than a dozen arguments before the California Supreme Court. He is considered by many in the industry as a scholar in appellate law, and he leverages his keen insights to support clients immediate and long term challenges in the appellate courts after many years as a partner at Horvitz and levy David is currently of counsel where which he joined in 1982. His many legal publications include several articles on hospital peer review committee confidentiality, David served two terms on the appellate Advisory Committee for the Judicial Council to California to which he was appointed by Chief Justice Ronald George. David also publishes the venerable appellate blog at at the lectern, which with news about important cases and newsworthy developments out of the California Supreme Court and the California Court of Appeal. So David, welcome to the podcast.
David Ettinger 2:06
Now it's good to be with you.
Tim Kowal 2:07
I also didn't mention that you are an esteemed alumnus of the California appellate law podcast, we were pleased to have you and your your colleague, Dean Buck Bhatia, join us on episode 20 to talk about the no citation rule. But today we're talking about a string of articles that you have been writing on at the lectern talking about the California Supreme Court and our forthcoming new chief justice. So David, we'll get to the big news shortly about about the state getting a new chief justice. But besides that, I wanted to just kind of back up and ask you what sorts of other things coming out of our court system in the past months have struck you as surprising or significant? Are there any big trends or storm clouds on the horizon?
David Ettinger 2:51
Well, the big news is, is the change in personnel at the Supreme Court. You know, if if the election goes as expected, we'll have a new chief justice in in January, the beginning of January, and will also have a new associate justice if her appointment is confirmed in November. So that's, that's a big change. We haven't had a new chief justice in a dozen years.
Tim Kowal 3:17
That's right. That's right. What about there's another the three strikes law in California is is another subject that comes up quite with some regularity in our courts, and therefore on act at the lectern where you write for our listeners, to remind them three strikes is the famous California constitutional amendment that was enacted by voter initiative that enhances sentencing to 25 years to life for three time offenders of violent or serious felonies. So in my my reading, following at the lectern, I keep seeing evidence that the three strikes law could be in some form of trouble. Is there anything to that? Or my overriding things?
David Ettinger 3:55
Well, I don't I don't know about in trouble. But they did take the LA District Attorney gas cones case for review, they granted review just recently, where he is the district attorney is seeking to be able to use his discretion not to file charges to third strike charges against against defendants. And there was a mixed ruling out of the Court of Appeal on that. I think they said that he was obligated to charge three strikes, but he didn't have to go and try to prove it at trial. So that's that's the decision that the Supreme Court is is going to be reviewing. And that's that's in the process of briefing now. It probably will be a number of months before we see any decision on that.
Tim Kowal 4:44
Was that a surprise to you when the California Supreme Court granted review of the Gasco in case
David Ettinger 4:49
that's a pretty important issue. So which is one of the stated grounds for for review by the Supreme Court, so it certainly wasn't a surprised it was big news that they granted review. But it wasn't a big surprise.
Tim Kowal 5:04
Is the do you think the focus will be three strikes? Or is the focus going to be the extent to which district attorneys have prosecutorial discretion to to simply fail to refuse to charge in these cases? Or is it I guess, I guess it's hard to disentangle the two. But what do you think is peak the California Supreme Court's interest there?
David Ettinger 5:27
Well, I have I have to preface my remarks by saying that I am not a criminal law practitioner or expert or anything like that. But it sounds like it's more the extent the scope of District Attorney discretion that that will be before the court. But again, that take that with my disclaimer,
Jeff Lewis 5:47
yes, it says shake that tension there. How much of that discretion is vested in the office of district attorney to make a decision not to charge as opposed to the Deputy District Attorneys who are in the trenches actually doing the work and and prosecuting these cases? I can't wait to read the briefing on that case. Hey, let me ask you, David, you recently you brought to our attention. You recently successfully briefed and argued a pro bono case before the California Supreme Court guardianship of Saul H. And this was a case about migrant children and obtaining findings from the California courts. Can you tell us two things? Can you tell us a little bit about the case? And two, there's an unusual issue regarding the appointment of counsel your your opponent? Could you tell us a little bit about that?
David Ettinger 6:27
Sure, I can. I'll try to give you the Reader's Digest version, because it's kind of complicated. Congress established a very unique kind of system where the state courts, the courts have evolved 50 states perform a fact finding function for the federal government on certain immigration matters. Juveniles are entitled to some protected status. It's called Special Immigrant juvenile status. If they can apply, they can only apply to the federal government for that status. If they first get a finding a state court that reunification with one or both of their parents is not viable. That's the term that's used in the statute not viable because of abuse, neglect, abandonment, or similar basis under state law. So that's what this that's why this immigration case was in a state court in the first place, because Congress requires state court findings, and the Superior Court refused to make the necessary findings. The Court of Appeal affirmed that refusal, and then the Supreme Court granted review. And you mentioned the unusual nature of the of our, quote unquote, opponent, there was no opposition to our clients petition for these findings. And there was no opposition to to our appeal, either in the Court of Appeal when the Supreme Court granted review. They obviously didn't want to have one sided briefing, so they enlisted as pro bono counsel, the greenest Martin firm to be what they would the court called amicus curiae AI, but which the Court said they would treat that amicus curiae I brief as the answer brief on the merits, and the grayness firm is really to be commended. For for taking that on, not only did they do it pro bono, but the Supreme Court set a very tight briefing and argument schedule. So they had they had very little time to get up to speed. They were just dropped into this case after review was granted. And they Yeah, they had very little time to get up to speed on it.
Tim Kowal 8:52
Yeah, that seems like a really interesting case. And I think we could probably get bogged in the weeds in it. But I'm curious if there were other states who that have taken this issue up, you mentioned that this is a federal law, that that basically invites or allows state courts to make findings that would be used by by what the immigration authorities to determine path to permanent residence status for minors. And were there other states who were likewise refusing to make these findings and saying, you know, keep me out of this. This is a federal issue, or was California alone was a California Superior Court and Court of Appeal alone in that, at that point?
David Ettinger 9:25
Not Alone? Certainly. And it's not it's not inviting state court findings. It's requiring state court findings. If you don't get those state court findings, the child cannot apply to the federal government period
Tim Kowal 9:42
by requiring the various state courts to do that. Does. Does the federal law risk inviting inconsistent standards in in the making of those findings?
David Ettinger 9:51
i Well, in a way, yes. But I think that's by design. They recognize that I think the I can Congress recognize that do Different states might have different standards for for judging what is abuse, neglect or abandonment or a similar basis? Yes. But but other you asked about other states, the other states, there had been some problems in the lower courts. And there were some good opinions that came out of the High Courts of states like Maryland and Nevada and Vermont, probably missing a couple, you know, so So California is not unique in trying to flush out this this, this issue.
Tim Kowal 10:35
So just in our in our light banter here, David, we've talked about immigration, we've talked about the three strikes law and prosecutorial discretion. And but what we're really here to talk about is the news right from the top, which is the changing of the guard and in the California Supreme Court. The news from the California Supreme Court is that the Chief Justice Tani can tell us soccer UI is retiring. So let's discuss, I want to discuss with you first some big picture questions, including the Chief Justice's legacy. And then maybe we'll talk about some nuts and bolts about how the transition works. And there's been a little bit of controversy, at least for us legal nerds, controversy about about the way the new appointment is happening, or is it an appointment or a nomination or which should it be and what's the difference and doesn't matter? And then we'll talk about who's going to be serving as our new Chief Justice. So So let's first talk about our outgoing Chief Justice. Tani Cottontail Sacco Lea, she's announced her retirement from the California Supreme Court after 11 years as Chief Justice. So let me ask you, David, to at the outset here just to engage in some rank speculation for us by telling us why do you think she's retiring? Well,
David Ettinger 11:45
yeah, it is. It's definitely rank speculation, because I don't know. But the thing is spending, it will be 12 years by the time she retires. And it under just normal times, the Chief Justice job is incredibly taxing one got two very much more than full time jobs that she's handling. So she's not only the leader of the Supreme Court and pulling her weight as one of seven justices on the Supreme Court with the caseload. But she's also leading the she's also head of the largest judiciary, I think, in the entire world. As far as number of judicial officers is concerned, it's larger than the federal says judicial system, you know, and that's, that's under just normal times. But as she mentioned, her tenure, was bookended has been bookended by the Great Recession and drastic budget cuts when she when she came into office. And by the pandemic, when she's when she's leaving office. In fact, the pandemic probably is covering about 20% of her tenure 20 to 25% of her tenure by the time she retires. So given all that, my guess is that it's it's the taxing nature, the very difficult nature of the job as to as to why she's retiring. Now. That's my guess
Tim Kowal 13:17
that seems like a good hunch when you David, when you mentioned to me about how her her tenure has been bookended as you said by that by the recession at the beginning, and all the drastic budget cuts and then the pandemic, I went back and looked at your one of your articles on at the lectern about the pandemic docket on the California Supreme Court. And there have been extraordinary petitions filed in the Supreme Court to reduce for example, youth populations and juvenile detention centers to transfer prison inmates to postpone the bar exam or to make it available remotely. And literally dozens of other extraordinary petitions that you've listed in your in your article that the Supreme Court has has had to take up and decide in the wake of the pandemic. And yeah, I think like I said, I think it's a good hunch on your part that that having to administer the court and our judiciary during this difficult the pandemic Yeah, must have played a role. Do you think that if she had if she was just an Associate Justice and not the Chief Justice, maybe she would have stuck around for another term?
David Ettinger 14:13
That's very possible. That's very possible. I mean, the pandemic was burdensome for the added significant burden to the court in general, all all seven justices not not just the Chief Justice, because besides having to adjust to operating remotely, they had all these additional cases that that came up in petitions for review and an emergency emergency petitions for relief that came up that they wouldn't have otherwise had on top of all the other stuff that they normally deal with.
Tim Kowal 14:49
David, you mentioned that the Chief Justice really has two full time jobs. She is a she's a justice. She writes she has her opinion writing duties like every other associate justice, but she also So has the job of managing the court and the judiciary system, given all of the administrative duties that Chief Justice has, does this mean? Because when you say that two full time jobs, I get your point, but we all have the same 24 hours in a day. So does does does her her commitments and her duties on the administrative side? Does that impact the her ability to write decisions? Does she not get to write as many decisions as maybe she would have liked? Does this mean that the Chief Justice maybe in a certain sense, is less influential than other justices, if if all the administrative duties take away time to to write, write the opinions that they otherwise might like to have taken up?
David Ettinger 15:39
I haven't done a count of, you know, how many opinions she's written versus how many opinions other justices have written. My sense, though, is that she is carrying her weight as a justice and producing, you know, around the same number of opinions as other justices on the court. So I don't think that's an issue. But certainly, you know, the point you make about, there's only 24 hours in her day, just like anybody else's, you know, that she might, she very well may have to rely more on on her staff, than other justices would have to rely to get opinions put together.
Tim Kowal 16:23
Or they're in a most of the time, we talked about changes on a Supreme Court, it's usually the United States Supreme Court, and most of a lot of commentators will note that the United States Supreme Court is tends to be more, shall we say raucous than is maybe the California Supreme Court by comparison, and that the California Supreme Courts tends, and maybe one of the reasons for that is that our Supreme Court tends to be more ideologically homogeneous. And is there any reason to think that this may play a role in the Chief Justice's decision to retire? If if she thinks that there's not going to be a big ideological shake up? If she steps down and is replaced? Does that help assuage concerns when a Chief Justice might decide to retire?
David Ettinger 17:06
I would get again, this is really speculation, because I don't know the chief, you know, but I would think that some thought is given to any justice when, you know, when they kind of contemplating retiring, who might be taking their place on the court. You know, the the Chief Justice may have been made more confident in her decision to retire by Governor Newsom, this appointment of justices Jenkins, and Guerrero, and found out and, you know, after she works, has worked with both of them on the court, she's confident that that they're solid choices for serving on the court and that Governor Newsom would be picking somebody good to fill the vacancies.
Tim Kowal 17:56
Okay, and so, and then to loop back around to the point you made about, about the productivity of the court and the challenges that the Chief Justice has faced. One of the other topics that you've written about recently on at the lectern is, is that the the court has experienced a bit of a decline in productivity in recent years, and I've found these John Eisenberg also has noted and noted down these quotes for Mr. Eisenberg, he says that yearly output of written opinions has plummeted and alarming 61% compared to a decade ago, and I wondered if the cause of this decline in productivity can be traced back to the pandemic or do you think it predates the pandemic and as other causes?
David Ettinger 18:38
Well, I think it does predate the pandemic. I think the pandemic probably exacerbated the problem. Probably having to work remotely exacerbated the problem. Also, there were some lengthy vacancies on on the court, which reduces reduces the productivity, I think, but there there are probably other factors to involve, which I'm not sure, you know, other internal factors as to why why there just hasn't been as many opinions filed and as many petitions for review granted, as in past years.
Tim Kowal 19:14
All right. Well, let's move on to talk about Chief Justice Cottontail Sokka Uwais legacy as the Chief Justice. David, you had mentioned to me offline here a few, a few issues in cases that that may be candidates for, for part of the Chief Justice's legacy, you you mentioned to me, the immigration and that the chief had given harsh criticism of ice arrests at California courthouses, you had mentioned on the on the topic of civics that the chief has promoted civics education in California schools. And and then there are other notable opinions like the dynamex opinion and Vasquez Bristol Myers in Ray Richards. You want to give maybe a little bit of a tour of how do you how you think legal historians will rate the Chief Justice's legacy?
David Ettinger 19:58
Well, the first tooth Actors points you. You mentioned the immigration point and civics point. Those are when Chief Justice was wearing her hat as head of the judiciary. So it really, it had nothing to do with the Supreme Court itself. Then Then there were the opinions that you talked about, which are the Supreme Court, and she was the author of some substantial, significant opinions. I think she might be best known historically, for her administrative duties as head of California judiciary has headed the Judicial Council in headed California's courts. And you know, one of those, one of the things that will be prominent, I think, is the criticism she had of the last administration, the last federal administration and having ice make arrests in California courthouses. And she spoke out often and extremely strongly about then and publicly about how those arrests were causing problems with access to justice in California's courts. And she wrote a letter to I think it was the then Attorney General, and the Head of Department of Homeland Security, criticizing what she called the stalking that was going on at California's courthouses. And she said that California Court should not be used as bait by by the federal government for for immigration arrests. And you know that that letter was just the start. I mean, repeatedly after that she was she was critical of of making arrests at at California courthouses.
Tim Kowal 21:48
Would that be an example of how the judiciary as being the the least political or the non political branch can still have a political impact? Because the Chief Justice, just speaking, basically, as the Chief Justice not not within an opinion of any sort, not within a case, but just saying, just decrying that practice? Did it have an impact in your view?
David Ettinger 22:08
Well, it didn't have an immediate impact. But it was the new administration, the policy changed, and she applauded the policy. You know, I really don't know whether anybody in Washington at the time cared under the previous administration when she thought it didn't, didn't seem like it. But But who knows, but she was definitely staying in her lane. At that point. She was not criticizing immigration policies in general. It was just specifically how they affect California courts. And that's that's her job as has had. She's the Chief Justice of California, not just the Chief Justice of the Supreme Court.
Tim Kowal 22:48
Well, there is a separation of powers issues. There. She is, she's protecting her turf, I guess you could, you could say of what what she was was saying do what do whatever you need to do in your own arenas. But in my court house, we'd ask that you not do this.
David Ettinger 23:03
In a sense. I think that's right. Do you saw harm to the California judicial system from this and she spoke out about it.
Tim Kowal 23:10
Well, and then let's talk about we don't need to talk about specific opinions, because again, that would could lead us down a deep rabbit holes, but but just to name a few of the opinions again, Dynamax Vasquez, Bristol, Bristol Myers inrae Richards. To the extent these these kinds of big cases out of the Supreme Court are part of the Chief Justice's legacy. In what way? Does the Chief Justice owner take credit for these decisions? Is it because of the Chief Justice's role in in in writing the opinions or assigning the job of writing writing the opinions? The Chief Justice still just has one vote in granting review? I take it but so what is what is the role of the Chief Justice there and in those opinions, and how do they factor into the Chief Justice's legacy? Well, I
David Ettinger 23:55
did see her quoted, I think it was a several years ago, saying that she did take for herself, the task of writing some of the bigger the big opinions, the more controversial opinions. And she was quoted as saying that sometimes she will take one for the team, is the way she put it. And I think that's accurate. I mean, there were certainly been some very consequential opinions during her tenure that she did not write, but, you know, the Dynamax and Vasquez on on independent contractor stuff. She wrote a couple of opinions holding a statutory limitations on pensions. You know, it was those were ones she kept for herself.
Tim Kowal 24:39
And so when you say that, or when she said that she would would take one for the team. She was specifically talking about writing the more controversial opinions. Right. That's what she meant. Yeah. I think you've also mentioned or reported that, that the Chief Justice would write opinions in The in a deliberately narrow way. Can you talk a little bit about that?
David Ettinger 25:04
Yeah, she said in after she announced her retirement, she was interviewed by the New York Times. And she said that the Supreme Court tries to keep their opinions narrow. And I'm trying to, I think I wrote down, I wrote down the quote, she said, we may start off with a broad opinion. But as we weigh, as we each weigh in, we start to narrow it because we realize we don't need to speak so broadly. We're more geared toward providing guidance and clarification on California law that I think makes the difference for why we are able to agree that goes to the consensus factor. But yeah, she she talks about, about narrow about keeping it narrow. And in fact, in the case that that I argued, briefed and argued, she wrote a concurring opinion, saying that she thought the majority opinion answered some questions that that didn't need to be answered, for for the resolution of the case I was I was working on.
Tim Kowal 26:09
So her discipline of writing opinions narrowly is not necessarily one that is shared by all of our associate justices.
David Ettinger 26:18
That's probably that's probably accurate. Yeah, I think some of the justices are willing to to speak more broadly, maybe touch on issues that don't need to be decided for that case, or even to make recommendations to the legislature to take new looks at certain statutory schemes or make statutory changes. So that, you know, so that, that that happens, and that's something that was less likely to be seen from the Chief Justice,
Tim Kowal 26:49
as a practitioner. Do you have an opinion about? Do you prefer a Supreme Court to write a holding broadly, or narrowly? Or is it just depend on what side of the argument you're on?
David Ettinger 27:01
That's not the latter? I'm not sure. I'm not really sure what my opinion is on that, you know, it probably is valuable in certain circumstances where where the justices see that a statute is either unclear, or it's plain language is leading to results contrary to probably what the legislature intended to point that out to the legislature and have them take a look and make fixes. I know, Justice Lew, during his tenure, has made suggestions regularly to the legislature and has been followed up on a number of times, I think the Chief Justice even many years ago, and I can't remember what the topic was, but suggested a legislative change that the this legislature did adopt later on. So I think that's a good thing.
Tim Kowal 28:00
One of the topics you talk about on at the lectern with some regularity is about clemency decision. And I have to admit, when I read about those, I sometimes wonder why, why I should care. And, and I, but when I read a little bit deeper into it, I think it's a fascinating question, but because because of how it dovetails into the Chief Justice's legacy here. And also, as you've drawn out on your blog, at the lectern, there's there was a difference in the in the Supreme Court's tendency to deny more of Governor Brown's clemency request compared to Governor Newsom, who seemed to seems to have sailed through with just about all of his clemency requests. And so I wonder if you could first kind of tell our audience a little bit about gubernatorial clemency requests in California, and and what is the court's role there? Why does the court have a role in clemency decisions?
David Ettinger 28:53
Well, they have a role because the Constitution requires that to have a role the state constitution, the the federal clemency power is extremely broad. The President has extremely broad power to grant pardons and commute sentences. And Congress has no oversight over that at all in the Supreme Court has no oversight over that, under the California constitution. However, the governor's power of clemency is still broad, but it is a little more circumscribed in the President's if it the Constitution provides that if the governor wants to grant clemency to someone who has been twice convicted of a felony, they have that Governor has to first get the four justices or more of the Supreme Court to sign off on it. So the governor when when he's wants to pardon or commute a sentence for a twice convicted felon, he has to send a request to the Supreme Court. are asking for the court's permission to go ahead and do it. And you mentioned that the court denied some of Governor Browns that there were 10 times and that right near the end of browns term that the Supreme Court said no. And that has not continued into Governor nuisance. 10 Nuisance tenure he's been except for he withdrew one request. But otherwise he's been 100% successful in getting the Supreme Court to Okay, his his clemency requests, recommendation requests. And in fact, there was even one that the Supreme Court granted when Newsom submitted it when they when the court just a few years earlier denied Governor Browns request for the same guy. It was the same same prisoner. I think it was a commutation of a life without parole sentence. And the the court denied it. When brown submitted the request. And then under Newsom, the Court granted it
Tim Kowal 31:07
right. And you've you've written that the courts denials of clemency requests from the governor are, quote, essentially court determinations that the client clemency grants would have been abuses of gubernatorial powers and quote, and that suggests that a denial is rather significant. And is the court required to provide reasons for its clemency decisions, particularly if you're correct that they amount to a determination that this would be an abuse of the governor's powers,
David Ettinger 31:31
they are not required, there's no requirement to explain their grants or denials. And that abuse of power language comes from a an order that the Supreme Court itself issued before these tonight before any of these denials, they on their own without asking for briefing or anything or without any apparent catalyst, they issued an order published order, I think it was about 10 pages long, where they in detail explained their role as Supreme Court justices in the clemency review process. And they said it was they said, This is a very deferential review, we're going to give to governor's request for clemency recommendations. And the only time we're going to say no, is if we think this is an abuse of gubernatorial power. So the denials that came in I think, I don't know about a year after they issued this order. We're very striking because based on the this order, explaining their role, the denials equate to a finding of abuse of gubernatorial power, but they didn't explain why, which is one of the one of the few things I have criticisms of the of the Supreme Court on is it is their lack of explanation. In fact, I remember seeing a quote of Governor Brown, they asked him, you know, about these denials, these unexplained denials, and he said, well look at some of the grants and look at the denials. And you tell me what the role is. So he was perplexed, he had he has no idea why some get denied, and some got granted. And that's just not a good thing when the governor himself doesn't understand the ground rules for for how these clemency recommendation requests work.
Tim Kowal 33:42
Yeah, when the governor makes the clemency request, as the governor is supported by any kind of statement of reasons or grounds.
David Ettinger 33:48
Well, that's a separate issue at the file that he submits is is submitted, he submits it, the governor submits it with a request that it be filed under seal, and it is, and the Supreme Court has automatically filed an under seal, and they will entertain motions from third parties to open up the files, in which case they will then send the court the file back to the governor and say, okay, justify, you know, keeping all of this or parts of it secret, and but without without those third party motions, the file stay secret,
Tim Kowal 34:29
right? Well, so. So the Chief Justice's legacy on clemency request is, is in the black box, so to speak, because we don't have the reasons for why they're granted or denied. So let's, let's just end our discussion about the legacy. Chief Justice Cottontail Soccerway by asking you a counter historical question, what would California jurisprudence have looked like if Governor Schwarzenegger had not nominated Tane Santiago Saku a as Chief Justice back in 2011
David Ettinger 34:59
Wow. That's a great, that's that's a hard one to answer without knowing who he was appointed to replace that bet. I mean, the California Supreme Court during her tenure has been, at least outwardly very collegial, most often consensus driven, most of their opinions are unanimous, far more unanimous opinions than the US Supreme Court. It's It's unusual to have to have any notable dissents there. There are occasionally four three decisions, but not very often, a different Chief Justice might not have handled the the drastic budget cuts, as well as the chief did, might not have handled the pandemic as well as the chief did. You know, it's it's really hard to say but though, those were the major challenges for Chief Justice in her role as the as the head of the judiciary, as far as California Supreme Court decisions themselves, I don't know that there would have been that much difference if someone else had been chief.
Tim Kowal 36:09
Okay. All right. So we've wrapped up with the legacy of the Chief Justice. Now let's talk about some nuts and bolts about how how the new Chief Justice is going to be appointed. And perhaps more, more interestingly, how the new Chief Justice's old seat old associate justice seat is going to be filled. So Governor Newsom has selected justice Patricia Guerrero as the new Chief Justice, and to replace Guerrero Governor Newsom has selected judge Kelly Evans, but there's some uncertainty and speculation about whether the governor is nominating Evans for this for the seat or appointing her to the seat. And in fact, just before we started taping this episode on September 21 2022, David, you posted an article on at the lectern stating that quote on November 10, the three member commission on judicial appointments will consider Governor Gavin Newsom, his appointment of Judge Kelly Evans to the Supreme Court and quote, and you note that because Evans was appointed and not nominated, she will not face the voters for four years. And I wonder if you could unpack that a little bit and explain what is the difference between appointment and nomination and why it matters?
David Ettinger 37:21
Well, let me do why why it matters first, because that's the easy but the in this situation why it matters is that Justice Guerrero being nominated for for the Chief Justice position means she's the nominee nominated as a candidate for election at this November's election. So she will stand for election as chief justice in November, but the appointment because it will not take effect until after the election. Justices only stand for election at gubernatorial elections. So she said judge Evans, or justice Evans, when she's confirmed, would not be on the ballot until 2026.
Tim Kowal 38:06
Now, David, you wrote a blog post at the lectern urging that the governor should nominate judge Evans now rather than appoint her later. And then in that post, you said that the governor has opted for an appointment, you said, quote, I think he should nominate judge Evans instead, because that's what the State Constitution mandates and quote and you also point out that under the state constitution, the governor before September 16, shall nominate a candidate. Do you have any information about what the governor's office makes of this constitutional provision and why it opted for the for the route it chose?
David Ettinger 38:43
Well, the governor's office definitely does not agree with with my position. I thought that and I think that the the governor had the constitutional obligation to nominate a candidate for for Guerreros seat, and so that that candidate, Judge Evans would have been would stand for election this November, and the governor's office I after that post was was published. I got a call from the governor's office where they were, you know, not not happy with with that post, I guess, and explaining the governor's office was explaining what their position is. And, you know, it's I certainly understand their position. It's it's, it's certainly not frivolous. And I don't think there's anything nefarious about their, their position. I just, I just happen to disagree with that. Is that
Tim Kowal 39:41
something that the governor's office is hoping that you'll relate in at the lectern to your readers?
David Ettinger 39:47
Well, I think in that post would very long post I think I explained what the governor's position was as to why why a nomination wasn't necessary and why an appointment was The right way to go which has the way he is is going with Judge Evans. Right.
Tim Kowal 40:05
Now this story about, you know, this many drama over nomination or appointment ensuing from the Chief Justice's announcement of her retirement in in an election year. It reminded me of an anecdote about in 1968, when the Chief Justice of the US Supreme Court or a Warren Warren announced his retirement 1968 was a presidential election year and a debacle ensued. After President Lyndon Johnson announced that aid, Fortis would replace Warren and Fortis thereafter, wound up lying to the judiciary committee about not having given policy advice to LBJ that led to LBJ ordering his staff to destroy all the four test papers. And all this led to the first and only SCOTUS nominee blocked by filibuster and it also led to a norm that a justice a prudent justice should not retire during a presidential election year. And obviously, you know, I'm not drawing a comparison. We don't have anything like less such a scandal here. But I wonder if these nice legal questions that we've been talking about conference nomination versus appointment, maybe they wouldn't have occurred if the Chief Justice did not retire or announcer retirement in an election year, you think there would be some value in a norm that justices shouldn't shouldn't retire in an election year?
David Ettinger 41:20
Well, under the Constitution, Supreme Court justices terms, necessarily and in in a gubernatorial election year. So, you know, unless unless they retire or resign before their term is ending, then you're going to have that situation like, like we have this year where where a justice retires, and just before just before an election, gubernatorial election.
Tim Kowal 41:51
Now, yeah, that is a big difference. The federal bench obviously does not have retention elections, like we do here in in California for for judges, but an 11 year term is a is a long term. And certainly if she had, if our Chief Justice had run for another retention election, she she could have retired sometime into her term. Could she not have?
David Ettinger 42:13
Yeah, she she certainly could have it's a 12 year term, by the way. So even longer, even longer term, but yeah, all the Court of Appeal and Supreme Court justices have 12 year terms. But yeah, she could she could have retired before her term expired. Justice. Just that's the way more often happens. Justice quedar. Justice chin justice worker, I believe they all retired before their terms were up. Chief Justice, George let his term retire. expire. And so so that's the way he retired, just the way that the current chief is, is retiring. So it can it can go either way.
Jeff Lewis 42:56
Well, let's shift gears here looking forward with the appointment of Chief Justice Guerrero or nomination I should say, What do you think we should keep an eye on in terms of changes to the court? Or what do you think will stay the same looking forward to a Guerrero court?
David Ettinger 43:12
It's really hard to say because she has been on the Supreme Court for such a short time, I think just since March, I think is when her appointment was confirmed. She hasn't written any opinions yet, which is not on the Supreme Court. And she's written lots as a Court of Appeal, which is justice, not unusual for the there to be that long gap between joining the court and writing your first opinion. That's it's common. So it's kind of hard to tell on that. But you know, I have a feeling there won't be much difference as far as how cases are decided, you know, the bottom line as to how cases are decided there might be a difference in the productivity of the court, we mentioned that the number of opinions would have had been going down. And number of review grants have been going down that that could conceivably change under Chief Justice Guerrero. It's all speculation I I just I just don't know. But as far as the consensus and collegiality of the court that I would expect to be continuing. She I don't know her at all. But from the little I've seen and read about her, it seems like she would she's a very good candidate to continue the collegiality that that seems to reign at the court.
Tim Kowal 44:37
All right, David. Well, we appreciate your you're coming on the show and sharing your your thoughts about the Chief Justice, the her legacy, what's coming up next. Any other aspects of this transition that that our listeners should be aware of?
David Ettinger 44:53
I don't think so. I you know, there's there's the election justice Guerrero has to win she has to get it Yes vote from the voters a majority us vote to become Chief Justice on January 2. And the only other thing that that I guess we didn't get into is is the timing of Judge Evans appointment. You know, the governor has appointed in the Commission on Judicial Appointments, will vote, almost certainly to confirm her before there's a vacancy to fill in the vacancy that she is filling is is justice Guerreros Associate Justice position. But that's that's not going to be vacant until January 2. So there there is a question. Can a governor appoint somebody to fill a vacancy? That's an impending vacancy vacancy? That hasn't happened yet? I think that I found one court of appeal case that dealt with a municipal court judge. I think that that suggests that. Yeah, this is fine for the governor to to do that. And yeah,
Tim Kowal 46:00
and so the issue is that we have a governor who is about to stand for reelection, who is appointing justice to the California Supreme Court, but but to be taking her seat only after the election.
David Ettinger 46:13
That's right. That's right. And I think I think he can do that. I think he probably has to win reelection in November for it to be an effective appointment. But I think it's a good thing that he's doing this advance so that there's not a vacancy. There's there's no gap where the Court of Appeal has I mean, the Supreme Court has to deal with bringing up Court of Appeal justices as Pro tems to fill to fill temporarily fill a vacancy. And that that has been a definite problem for the court. In the past, there were some very long vacancies, unfilled vacancies, that that hampered the courts ability to function to decide some cases,
Tim Kowal 47:02
right? Well, if our listeners are interested in much more in depth coverage of the California Supreme Court and Courts of Appeal, they should visit at the lectern.com. That's where David Ed injure writes prolifically about all things California judiciary, and that's going to wrap up our episode for today. Again, we want to thank casetext for sponsoring the podcast and each week we include links to the cases we discussed using case text and listeners of the podcast can find a 25% lifetime discount available to them if they sign up at casetext.com/CALP.
Jeff Lewis 47:36
And if you have suggestions for future episodes, please email us at info at Cal podcast.com. For upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 47:46
All right. See you next time.
Announcer 47:48
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 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.
In a bizarre ruling earlier this year, the Court of Appeal held that bumble bees are fish, at least for purposes of the California Endangered Species Act. (Jeff Lewis and I covered this in episode 38 of the California Appellate Law Podcast, and Prof. Shaun Martin’s writeup is here.) The California Supreme Court was asked to review the result, and the Supreme Court denied review.
But the Supreme Court does not want you to think that that means it agrees that bees are fish. Or vice versa. The Chief Justice specially concurred in the denial of review to explain that denials of review are perfectly enigmatic: it could mean the Court thinks the result was bosh, or that it was brilliant, or that it has no opinion whatsoever.
You are not alone. The Chief Justice knows that many will look at the Supreme Court’s denial of review and interpret it as “an affirmative determination by this court that under the law, bumble bees are fish.” But that would “misconstrue” the denial of review, the CJ said, because a denial of review means nothing at all.
In case you are wondering how to interpret the Supreme Court’s denials of review, here is what the Chief Justice has to say about them:
“Our denial of a petition for review does not communicate any particular view regarding the merits of the issues presented in the petition. Thus, all should understand that our decision to deny review in this case is not an endorsement (nor is it a rejection) of the statutory analysis undertaken by the Court of Appeal….”
But why would the Court pass up a golden opportunity of an interesting, and bizarre, issue of statutory interpretation, which seems to amount to “an important question of law” under Rules of Court, rule 8.500(b)(1), governing Supreme Court review? Again, the CJ anticipates your puzzlement. She collects several cases that remind us that of something important. The CJ is too gentle to say so, but recalling cases in which judges have held that “less” means “more,” that “unlawful” means “lawful,” that “seas” don’t necessarily mean water, that fish are intangible (and if I may append to this list, that wheat grown and consumed on your own property is interstate commerce), reminds us that judges have a high tolerance for the absurd. They are interpreting the enactments of politicians, after all.
As the CJ puts it, “These kinds of seemingly illogical outcomes can in fact best capture the enacting legislature’s intent in a variety of circumstances.” So “Even if the Court of Appeal arrived at what might superficially seem like a counterintuitive result, that alone does not establish that it erred.”
Not to worry, the Court can still weigh in later: “our decision not to order review here does not prevent us from considering the CESA’s reach in some future case, at which time we may agree or disagree with the Court of Appeal’s analysis.” Until then, if the Legislature does think that lumping bees and fish together is stretching things a bit, it now is its chance to do something about it: “such decisions also can provide notice to legislators that some clarification may be in order.”
As for your cases, now you know not to read anything in to the fact the Supreme Court has denied review of an opinion.
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.
Lawyers and judges have, by now in late 2022, gotten quite comfortable using remote trial to conduct legal proceedings. Depositions, mediations, arbitrations, even whole trials may be conducted via Zoom.
But Zoom trials are not the new normal. Not until the Legislature says otherwise, anyway. That’s what the Court of Appeal held in Rycz v. Superior Court (D1d5 Jul. 28, 2022) 81 Cal.App.5th 824.
Yes, the Legislature enacted a statute for remote proceedings. But that statute is only temporary, scheduled to sunset on July 1, 2023. After that point, trial judges and litigants are not to assume remote testimony will remain a valid substitute for live testimony.
In Rycz, a 19-year-old girl was killed while walking on a freeway late at night. There is some mystery as to how the girl, a student at University of San Diego, came to be at the spot where she died, but what is known is that she had become extremely intoxicated (0.21 BAC), took an Uber, and, after “forcefully vomiting” on the dashboard and windshield, was dropped off short of her destination. The girl called another Uber but, upon its arrival, panicked and ran onto the freeway. This was a half-hour and four to five miles from where she would die.
Although the incident occurred in San Diego, the girl’s mother sued Uber and the drivers in San Francisco, where Uber is headquartered. The defendants moved to transfer venue to San Diego, but the trial court denied the motion. The trial court noted there has been a “sea change in litigation” since Covid, and given the widespread use of Zoom for depositions and testimony, the trial court reasoned that “it matters little, if at all, where a witness resides at the time of trial as travel is unnecessary.”
The Court of Appeal granted a writ ordering the trial court to transfer venue to San Diego where the drivers and witnesses reside. While remote proceedings are available today, the statute that allows for them is scheduled to sunset on July 1, 2023.
A motion to transfer venue under Code of Civil Procedure section 397 should be granted, in the trial court’s discretion, “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change,” even if the complaint was filed in a “proper” county.
True, until July 1, 2023, section 367.75 (implemented by rule 3.672), “effectively establishes a presumption in favor of remote proceedings, including remote trial testimony….” But here, the trial likely would occur after that date.
The court also pointed to a second reason that a venue-transfer motion under section 397 should not assume the availability of remote testimony: “More fundamentally, there is no basis to conclude the enactment of section 367.75 reflects a legislative direction that courts should assume all testimony will be taken remotely when adjudicating motions to transfer under section 397, subdivision (c).”
Instead, section 367.75 and rule 3.672 require the trial court to make an individualized, informed inquiry to determine whether an “in-person appearance would materially assist in the … effective management or resolution” of the case. The court held that a “blanket determination that in-person testimony is unnecessary” does not satisfy this requirement of an individualized analysis.
So at least for purposes of venue-transfer motions, trial courts must exercise discretion whether an “in-person appearance would materially assist in the ... effective management or resolution of the” case. (§ 367.75, subd. (b); rule 3.672(d)(1).) And that determination must be made for each hearing, proceeding, or witness. The trial court may not issue a blanket ruling that the entire action will be conducted remotely.
The Court of Appeal rejected the suggestion that the Legislature has determined remote testimony is always an adequate substitute. While remote testimony can be adequate, it is not always so. “[O]ne operating assumption of our system of justice has long been that the opportunity to observe witnesses “upon the stand and the manner in which they gave their testimony ... in no small degree aid[s] in the determination of the truth and correctness of testimony.” [Citation.]”
For example, the court noted that in-person proceedings allow witnesses to more easily see physical evidence and to engage with demonstrative exhibits, and allow judges to monitor and maintain the attention and engagement of jurors.
But a blanket determination that all trial testimony will be done remotely, the court held, “entirely undermines the discretion and flexibility built into the statutory scheme.”
The Upshot: Rycz is an important holding for two reasons. First, it reminds litigants and trial judges that remote proceedings will not be available for much longer unless the Legislature acts. And second, even if the Legislature does extend section 367.75, Rycz holds that trial courts may not make blanket determinations in favor of remote proceedings for all purposes. Instead, trial courts must make individualized, informed inquiries before ordering a particular proceeding or testimony may go forward remotely rather than in-person.
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.
What happens when the court fails to make required findings? Probably not, because the California Supreme Court says you still have to demonstrate prejudice. But in this episode of the California Appellate Law Podcast, Jeff Lewis and Tim Kowal talk about how, in certain kinds of cases, the prejudice analysis may give a very light touch, and so your chances of reversal are much higher.
Some recent cases suggest the courts may be pointing in different directions in appeals involving missing findings.
Jeff and Tim also cover some other recent cases that you may want to have in your toolkit:
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 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:
Tim Kowal 0:03
deeming an untimely appeal to be timely for no reason at all, just seems to me like random violence to appellate procedure.
Announcer 0:11
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 0:25
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:27
And I'm Tim Kowal California Department of podcasting. pending review. The California appellate law podcast is a resource for trial and appellate attorneys Jeff and I are appellate specialists we split our time about evenly between trial and appellate courts. In each episode, we try to bring our listeners some legal news and tips they can use in their practice.
Jeff Lewis 0:44
Welcome to Episode 35 of the podcast and a quick announcement. This podcast is sponsored by case Tech's case Tex is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority quickly. I've been a subscriber since 2019, and I highly endorse the service and listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at case text.com/kelp. That's case text.com/ca LP.
Tim Kowal 1:17
Yeah, I've been a longtime user of case texts as well. The parallel search search function is amazing. And I highly recommend using it. And all of the cases that we cite in our show notes are through case text. So this this week, we were going to share some recent cases and news. And the first pair of cases that I wanted to share Jeff are about dealing with untimely appeals. And when I first started doing a lot of appellate law blogging, and we did this podcast, I mostly wanted to try to find, you know, scary cases and be able to jump out from around the corner and scare poor trial attorneys into this is why you need to worry about appellate procedure because this is how easily your appeals can get dismissed. But I found a pair of cases this week where clearly untimely appeals did not get get dismissed and I was just gobsmacked by it. The first case I wanted to share is Peltor versus one 800 get thin inside of the second district. It's a May 2022 case it's unpublished. And there the court and appeal filed a full 10 months after the judgment was entered. The deadline could not have been more than 180 days after the rule. So at a minimum, this appeal was filed more than four months late. But the court found the appeal was timely. How can an appeal filed 10 months after an appeal after a judgement possibly be timely? Jeff? Well, the answer you see is that there was an amended judgment that were the the word of the plaintiff costs in month eight. So are the defendant I guess here so it was timely as to the amended judgment. But wait a minute, the respondent argued the arguments on appeal had nothing to do with the cost Award and the amended judgment. The entire appeal was attacking the 10 month old judgment and an amendment judgment.
Jeff Lewis 2:58
Yeah, my gut would tell me that. Okay. If you want to file that later notice of appeal to the later judgment, then sure you're welcome to attack the costs, but you're out of luck for arguing the merits? No, my gut tells me
Tim Kowal 3:10
Yeah, yeah. The rule is that an amended judgment that merely orders cost does not restart the time to appeal from the underlying judgment. But the court disagreed it said, quote, no principle or authority supports that argument that the rule I just said that, that an amended judgment unless it substantially changes. The underlying judgment does not resurrect the time to appeal from the underlying judgment. But the Court of Appeal held that the appeal here was timely. Now, Jeff, I think I know that the court is mistaken here. There are in fact that at least and certainly it's mistaken that there is no principle or authority that says the holds for that rule that I just stated. There are several cases, in fact, including out of the second district that hold that an amended judgment does not restart the time to appeal unless it changes the substantive underlying judgment. But again, the court went on to affirm I guess you could chalk this up to the no harm, no foul principle, but I'm not so sure, deeming an untimely appeal, to be timely in order to do justice is at least something that's an intelligible, I can understand the impulse. But here, the court didn't reverse it still went on to affirm and so deeming an untimely appeal to be timely for no reason at all, just seems to me like random violence to appellate procedure. What do you think, Jeff?
Jeff Lewis 4:29
Well, I have a few thoughts. First of all, you know, it's unpublished and it goes, you know, we've talked for a few episodes about our thoughts about why more opinions should be published in by unpublished decisions, certain things kind of fall under the radar, and this is clearly bad. And let me say this, you know, the bottom line rule is to be safe, you should always file a notice of appeal from the original judgment, as well as the amended judgment just to make sure covering your bases No, no appeal ever got dismissed from filing too many notices of appeal, but I was thinking back About a tweet you recently sent on Twitter, where you said you ascribe a theory of the Jeff Lewis law hypothesis for the utility of complicated appellate rules, relaxing the machinery of our connahs How appellate judges show sympathy to deserving litigants without changing the actual outcome. And here, in this case, the one 800 gift in case the lead appeal was allowed at the trial courts really ultimately was affirmed the appellant lost and the young woman who died on the operating table rather than having her case thrown out on a timing issue for an untimely appeal, the case was thrown out more or less on the merits. So I guess this result in in this one 800 get thin case would offer further evidence in support of support of my hypothesis,
Tim Kowal 5:43
it may support your hypothesis, as I said, it didn't the court went on to affirm so you could say it's no harm, no foul. But I wonder why did the court bother to even take up the issue? Maybe the court could have just swept it under the rug not even said a word about the appeal ability or timeliness issue. And, in fact, that is what that's what happened in the next case that I'll talk about. It's heard versus heard. And I should disclose I'm I represented the respondent in this in the appeal in this matter. So I'll be a little circumstance circumspect about the facts. So this, you honest, yeah, there's another non published opinion here. And and I'll back up because it relates to another case. Also, which I consulted on, it was cast versus Kelly. And so both are heard case in the cast case are both out of the second district. I was brought in, in the cast case to consult on an appeal, after the court had requested briefing, why the appeal was not untimely, because because it had been filed more than 60 days after the Notice of Entry. And the best argument that I could come up with was that the Notice of Entry did not attach the judgment. And the court concluded Nah, that's not a good reason. The rules state that the that what starts the 60 day clock is either a file stamped copy of the judgment or a Notice of Entry. It doesn't say that the Notice of Entry has to attach the judgment. But here's what happened in the Hurd case, the shoe was on the other foot, I was the respondent there and the Appeal had been filed more than 60 days after a Notice of Entry. And the Notice of Entry there did not attach the order that was appealed from so the same reasoning came up as in the cast versus Kelly case. I, I argued that, hey, the rules of court do not require that the Notice of Entry attach the judgment and the court concluded. No, it's it's timely. And then it went on to reverse the judgment. Now Chase, the but there the court didn't even make a whisper about the appealability or the timeliness issue. It just acted as if it never it never was raised. And so I took I took up a petition for review to Supreme Court there on grounds that the Court of Appeal lacked jurisdiction, because as we know, or as least as we're told, appealability and timeliness of the Notice of Appeal are fundamental jurisdictional issues with the court summarily denied my petition.
Jeff Lewis 7:57
Yeah, well, it doesn't surprise me Supreme Court doesn't exist to cure legal error. They scream Supreme Court was more concerned with published opinions. And these were both unpublished disastrous results rather than affecting what a prior guests called the tapestry of our case law. Right.
Tim Kowal 8:11
It could be but if we start to see a lot of these cases come up that that run roughshod over the jurisdictional rules that ignore the gatekeeping function to ensure that our courts of appeal only hear appeals from from appealable issues and that are filed timely, then, how long can we continue to maintain the belief that the court is on the level when it says that these are jurisdictional rules? Recall that there was the Supreme Court not like I guess it's a little while ago back in 1975. And the Hollister convalescent hospital versus Rico case that involved an appeal that was dismissed because it was filed one day late. And why was it filed one day late? Because the clerk told the appellant the wrong date that the order had been entered. So completely innocent appellant upon a miss mistaken report from the clerk wound up filing an appeal one day late and could not get relief from the Supreme Court there. But now we have the way to get relief. If the court ever asked how can we possibly entertain this appeal when it was filed late? You could just say, Well, I have seen courts just simply ignore the issue, Your Honor, and that seems to work just fine.
Jeff Lewis 9:19
Yeah, that might not be my argument.
Tim Kowal 9:23
It's only one that exists and it seems to work. All right. Another another topic moving on from timeliness and untimely appeals. Another perennial topic of interest to appellate attorneys and to trial attorneys. Are is the record on appeal. And, you know, Jeff, as appellate attorneys are number one, and the most common advice to trial attorneys is get a court reporter for your hearing. If you don't have a court reporter What do you do the only other game in town are settled statements. Now personally, I've never done a settled statement. But there is it is a it is provided in the rules that you can put together. are a proposed settled statement explaining what had happened at the at the hearing or the trial. And the court is supposed to review it and sign off on it and maybe make edits as necessary. And that becomes the record of the oral proceedings for purposes of appeal.
Jeff Lewis 10:13
Now, I have to say, you know, I understand the theory behind this, and I've been involved in a lot of appeals with settled statements. I've never actually prepared one, but I've been involved where I've had to read them. The respondent In theory, it aids the Court of Appeal, figure out what happened at the trial level, but in practice, the settled statements don't really add much they're not a replacement for reporters transcript in any meaningful sense. They will say, you know, a person one argued ABCD, person two argued 123, and the judge ruled ABC, and that's about it doesn't really give you much flavor. So I've never really understood why a party that provides a settled statement as to what happened, receives preferential treatment in the Court of Appeal over a party who had no court reporter and didn't go through the hoops of a settled statement. I've never understood. I've never understood that. Go ahead. That was a tangent. I'm sorry. Go.
Tim Kowal 11:04
Yeah, that that raises a good point. But here's what the here's what the appellant tried to get into a settled statement in the recent unpublished case of RM versus JJ out of the Third District. This was a an April 2022 case, the appellant there had a pretty solid issue on appeal. She argued that her ex husband had made frequent angry, angry outbursts and hostile gesticulations. Throughout the day long hearing, the mother thought that this display of her ex husband's rather obvious need of anger management confirmed that giving him custody of a young child was not in the child's best interest. But the trial court refused to consider the ex husband's outbursts at trial and the appellant thought I'm gonna get this reversed because you you refuse to consider probative evidence at trial and making this discretionary ruling. That can be an abuse of discretion all by itself. And the Court of Appeal basically said, I don't see any outbursts in the record. So we can't consider this issue because there's no record of these suppose it outright outburst, the order was affirmed. Because what happened is that on appeal, you have to show the Court of Appeal what happened during the trial court proceedings. And normally you will get a court reporter the appellant didn't have a court reporter here, whether because it was expensive or some other reason. And so the appellant tried to use the settled statement process. But the the settled statement itself became a heavily litigated affair and resulted in a version that was expurgated of all the matters relating to these outbursts, which the mother had wanted to raise in the appeal. So she got the worst of both worlds, you wound up spending more money litigating over the settled statement. And and also she didn't get in any of the evidence of the of the outbursts that she wanted the court of appeals to consider. Yeah, it's
Jeff Lewis 12:44
interesting, because I think in an earlier episode that we taped, I bought you for suggesting that either either a trial court or an appellate court would ever be interested in eye rolling, hand waving or other gesticulating, but I guess
Tim Kowal 12:56
I was wrong. Yeah, well, we, we can't know if it was going to if it was going to get anywhere because it didn't make it into the the mother filed a writ petition to try to get it into the record arguing that the trial court abused its discretion by refusing to settle the statement that was proposed that was denied. And then on appeal when she raised the issue, again, the Court of Appeal said, Well, maybe but you you cite, you didn't cite to your proposed settled statement. Instead, you use cited to your declaration in support of your settled statement. And that's not good enough. And I know of no rule that says that you have to cite to one and not the other. But it left me with the upshot that if you want a settled statement, basically you have no right to it. It's in the rules. But the court of appeals, the trial court doesn't like given them and the Court of Appeal has no inclination in enforcing or forcing the court of the trial court to give you one. Yeah.
Jeff Lewis 13:46
Get a court reporter. All right. I want to talk next about a case that's now pending before the California Supreme Court oral argument scheduled for next week and late May. And the case is sarova vs Sony Music involves the intersection of anti slap law class actions and First Amendment work. And let me just set the table for some of our listeners. You know, California law has declared this certain lawsuits that arise from either free speech or government petitioning activity, which have no evidentiary or legal value are considered slap lawsuits. Those are strategic lawsuits against public participation. And California's anti slap law provides that any defendant sued as a result of free speech, speech or government petitioning activity to bring a motion to dismiss the case at the very beginning of the lawsuit. If a plaintiff can't prove up that the case has merit with evidence cases dismissed. This is known as an anti slap motion. And the first issue whether a lawsuit arises from protected activities. Notice the problem, one question, and the second issue, whether the plaintiff can provide evidence that the case has a minimal merit. That's known as prong two. And that brings us to this case involving Sony Music. So this is a case it's been to the California Supreme Court twice the second visit and after Michael Jackson's death An album of Jackson songs or songs that were reported to be sung by Michael Jackson was published after his death. There was controversy about whether the songs were actually sung by Jackson in a lawsuit was filed under the California unfair competition laws and Consumer Legal Remedies Act against Sony Music and others responsible for publishing the album. Sony filed an anti slap motion arguing that as to promote one statements made about the album or protected activity and as the prompt to the statements were not commercial and then not reachable reachable under the unfair competition law. So the procedural history of this case is a mess. And you'd have to draw a diagram to really diagram out all the issues but two decisions by the California Court of Appeal and two petitions for review granted the California Supreme Court, and most recently, the Supreme Court said it's going to address whether statements made about a creative product, including music on the packaging, and advertisements constitute an issue of public interest under prong one. The second the Supreme Court is going to consider whether representations made about a creative product can constitute commercial speech or non commercial speech whether or not it's actionable under California's unfair competition law or Consumer Legal Remedies Act. I get to this case caught my eye because of well, two trips up to the Supreme Court, I always find interesting, and also cases that are at the edge of anti slap protection in this case, certainly is a very close one. You know, the Sony defendants in one brief, argued that allowing the case to survive an anti slap motion proceed to trial with, quote, chill or ticks artistic expression to its core. And I'm always concerned about case law that has the potential to narrow the application of the anti slap law. On the other hand, I don't think the legislature had big businesses like Sony Music in mind when they imagine enacting the anti slap law to protect helpless defendants. And I wonder if this case with two trips to the Supreme Court and two decisions by the Court of Appeal might be best, best described as a smack strategic motion against credible claims this case concerning an album released in 2010, which has been ping pong, back and forth in the courts of appeal for years. I watch it closely. And I'll be listening closely with oral arguments on May 24. And maybe we'll talk about the decision in a future episode. And we'll have links to the case and the some of the really excellent briefing in AR in our show notes.
Tim Kowal 17:22
You see any indication in any of the cases, Jeff, whether the courts treat litigants differently, who raised the anti the protections of the anti slap statute who are well heeled versus those who raise the protections who are who are the poor, put upon defendants? No, were intended by the legislature.
Jeff Lewis 17:40
I haven't, both in personal experience in cases I've litigated. And just by observation of cases I've read I have not I have not seen that.
Tim Kowal 17:48
Well, I guess that's a good thing. I mean, that's what the law is meant to do. Right. The rich in the in the poor are supposed to get the same result.
Jeff Lewis 17:56
Yeah, yeah. Although if the idea of the anti slap law is to prevent big companies from or big entities are well to do plaintiffs from silencing critics or silencing chilling petitioning activity, I think inherent in that idea is that there's an inequitable finances between the plaintiff and the defendant. In here where you have presumably, plaintiff of modest mean, like it's a big corporation that runs counter to what I suspect was the legislature's intentions, but we'll see how the case turns out
Tim Kowal 18:26
well, do you want to hazard a prediction about how this one comes down?
Jeff Lewis 18:29
i It is my prediction that under prong A it will be considered with the anti slap law. And under prong two, all the communications on the album cover and the videos were all non commercial in nature and not actionable. And under prong two, Sony wins. That's my prediction. All right. But do me favor hold this recording until after all argument is done. All right. Next, I want to talk about one other case that came down yesterday, we've been talking a bit about some cases that you brought to my attention about witnesses, observing witnesses with masks on and not having masks on and whether that can impact confrontation, rights and the ability to assess the credibility of a witness. This next case involves a Ninth Circuit case regarding the conduct of criminal trials during the height of the pandemic in US versus Allen, there was a criminal conviction and the district court in Northern California closed a criminal courtroom to members of the public. And that's not a big surprise that happened in courtrooms across the country, but also only allowed members of the public to listen to an audio stream, but not a video string. So I remember one of the public wanting to watch or observe this criminal trial. The only way they could do it is by listening and audio stream. And the trial counsel made an objection that this violated the Sixth Amendment rights to a public trial. And they went out the defendant appealed to the ninth circuit and the Ninth Circuit has held that the district court's order was not narrowly tailored. Third, because courts throughout the country facing the same need balance public health issues that can defend its public rights trial, other courts developed COVID protocols that allowed for video observation. And the court went on to say that video observation of a trial as opposed to just audio observation of a trial is qualitatively different terms of the proceedings to the conviction was vacated and a new trial was ordered. I interviewed him one more time.
Tim Kowal 20:26
Sorry about that. Did the opinion still say why the court decided not to stream the video and only to stream the audio?
Jeff Lewis 20:35
Now, only that it was meaning out of step from other courts, but didn't really have a justification?
Tim Kowal 20:40
Yeah. And did the court I'm actually not aware of the policy reasons. Obviously, I know that, that there's a constitutional requirement to the to the public trial, but what is the what's the historical justification in need for having the public trial? And why was it not served well enough by an audio stream? Well,
Jeff Lewis 20:58
I think about it with a video stream. You can look at witnesses, you can look at a judge, you can look at a defendant and through facial expressions, better assess credibility and get a better sense of what's happening in the courtroom, as opposed to just hearing words. It's different. You can radio on TV.
Tim Kowal 21:14
Yeah, I agree with that outcome. I'm surprised that the court that the trial court was resistant to the video stream.
Jeff Lewis 21:23
Yeah, me too. Hey, Oh, one other thing I want to bring up to our audience. You know, an earlier episode we talked about a lawsuit filed by the LA and San Francisco DBAs office jointly won lawsuit against the potter and the law firm. And you know, Palmer Handy was accused of clogging the courts with frivolous ADA lawsuits, and a newspaper up in San Mateo open link to the newspaper article in our in our show notes. This newspaper up in San Mateo did a examination of the stats that for the year 2021. Potter handy file 2076 EDA lawsuit in the United States District Court for the Northern District. And this accounted for 85% of all ADA lawsuits filed in that district for that year, and 23% of all filings of any type in the Northern District. And it's that's a remarkable stat especially it's a San Diego law firm after the DA is filed their joint lawsuit of the newspaper did a study and found that Potter handy filed three ATA lawsuit after the filing of this lawsuit. So I wonder if other ADEA filings not by just this firm but by other firms have dropped in this and other districts have been shocked to see the volume of these cases. Drop.
Tim Kowal 22:35
That's That's a staggering number 2076 lawsuits that if you're filing if you're if you're filing lawsuits that represent nearly a quarter of all of the filing seen in that court that's making that would be making myself rather more conspicuous than I'd be comfortable with.
Jeff Lewis 22:51
Yeah, I guess the only surprising thing about this joint la San Francisco da lawsuit is why didn't happen sooner given that volume?
Tim Kowal 22:59
Yeah. But yeah, that is it's very, that is interesting to think that the stark downtick and the number of their filings Yeah, I think the DEA is out to be looking at themselves saying, and we've already done a public one other
Jeff Lewis 23:10
case I want to talk about a case ruling came down on last week in the Superior Court, but sure I expect it to go up to the Court of Appeal a California it was the one of the first states in the country to enact a law requiring corporations that are Hort headquartered in California, to have a minimum number of female members of the Board of Directors, the law was known as Senate Bill, two, six. And I say it was known as Senate Bill eight to six because last week, the law was struck down on equal protection grounds by an LA Superior Court Judge. And so it'd be interesting to see how how that proceeds up the Court of Appeal maybe to the California Supreme Court and see if somebody steps in to try to defend that law.
Tim Kowal 23:49
Yep. Yeah. And we have a, I think we don't do one more announcement, or can I make the final announcement?
Jeff Lewis 23:57
I'll do one, one more. And that is, you know, we're very familiar as appellate lawyers with amicus briefs, and this usually occurs when a case when a courts considering whether to accept discretionary review of a matter or in the Court of Appeal, regarding cases that will definitely be decided, with the leaked draft brief in the Roe v. Wade matter before the United States Supreme Court. It's the first time I've ever seen this. And I learned about it from the Howard bashment how appealing blog an amicus party has sought leave to file a late elite brief attacking the draft opinion that was Lee, kind of a first it's the first in terms of the leak and it's the first in terms of a post amicus brief looking to attack it a draft opinion. It's kind of an interesting issue, and I suspect many more any more briefs will follow.
Tim Kowal 24:44
Yeah. Well, yeah, I think the we've seen some fallout from that leak and the fallout will continue, I'm afraid. All right. Well, our final announcement today, one of our CO hosts who is not myself, is celebrating a birthday today, Jeff Lewis we We all want to ask him his age, but we're recording this on May 17 2022. It's Jeff Lewis's birthday. And I know that because I can see the sign in his office and in the Zoom screen there that says it is your birthday. And in true appellate fashion, there is no overhype. It's, there's there's no exclamation mark after that it is your birthday period. Nice stuff do we don't need to needless adjectives or punctuation?
Jeff Lewis 25:24
Yes, it's very, very cleaned up and short. Well, I think that I appreciate the birthday wish. And that wraps up this episode. And again, we want to thank keys text for sponsoring the podcast and each week we will include links to the cases we discussed using case texts, and listeners of the podcast can find a 25% discount if they sign up for casetext at casetext.com/CALP. That's casetext.com/CALP,
Tim Kowal 25:50
and we always welcome suggestions for topics or guests from our listeners, please email us at info at cow podcast.com. And we'll be back next time with more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis 26:05
All right, see you next time.
Announcer 26:06
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cal 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 a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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So you are going to take an appeal, but you are going to take a run at a motion for new trial first? Here is another case that demonstrates how many things can go wrong when relying on posttrial motions to extend the time to appeal.
Sharma lost her auto-defect case after a jury trial. Instead of immediately appealing, Sharma timely file a notice of intent to move for new trial.
For some reason, Sharma did not file the memorandum and supporting papers. And Sharma did not show up at the hearing. But instead of denying the motion, the trial court took the motion off calendar, and the defendant served notice that the motion was off calendar.
Shama filed her notice of appeal. She filed it more than 60 days after the notice of entry of the judgment. But she filed it within 30 days after the motion for new trial would have been deemed denied, i.e., 75 days after the notice of entry. (Code Civ. Proc., § 663a(b).)
So whether her appeal was timely depended on whether her motion for new trial was valid, and when it was denied.
When the appellant files a “valid” motion for new trial, rule 8.108(b) provides for an extension of the time to appeal. Rule 8.108(b) states:
“If any party serves and files a valid notice of intention to move for a new trial, the following extensions of time apply: ”(1) If the motion for a new trial is denied, the time to appeal from the judgment is extended for all parties until the earliest of: ”(A) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; ”(B) 30 days after denial of the motion by operation of law; or ”(C) 180 days after entry of judgment.”
Here, Sharma never filed the actual motion and did not appear at the hearing. The Court of Appeal opined that “In our view, her failure to pursue the motion reasonably supports a conclusion that her notice of intention to move for new trial was not valid.”
But the court stopped short of holding as much. Instead, the court went on to conclude that, even if the new trial motion was valid, the appeal was still untimely.
Comment: The motion seems valid to me, despite the missing supporting papers and the nonappearance at oral argument. Rule 8.108 is triggered when a party “serves and files a valid notice of intention to move for a new trial….” A memorandum or appearance at the hearing are not mentioned in the rule. Under Code of Civil Procedure section 659, a memorandum and supporting papers do not have to be filed until 10 days after the notice of intent. Thus, in this commentator’s view, when Shama filed and served the notice of intent, it was valid. That cannot be undone by anything Shama later did, or failed to do.
Unfortunately for Shama, she did not argue in her brief that rule 8.108 applied to extend her time to appeal. Instead, she waited until oral argument. There, she argued that the trial court’s order taking the motion for new trial off calendar was not a denial of the motion. Thus, the 180-day provision applied under rule 8.108(b)(1)(C).
This seemed a decent argument. But the court held that “Sharma forfeited this argument by failing to raise it in her briefs.”
[Comment: This is not right. The deadline to appeal is jurisdiction, and jurisdiction arguments are never waived and may be raised at any time. (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 721; Keiffer v. Bechtel Corp. (1998) 65 Cal.App.4th 893, 896 ["adequacy of the court's subject matter jurisdiction must be addressed whenever that issue comes to the court's attention"].)]
The court went on to state that Sharma’s argument failed on its merits, because the trial court’s order taking the motion for new trial off calendar was, in effect, an order denying the motion:
“The “formal disposition” of the order is irrelevant, and Sharma's focus on the absence of the word “denied” in the judge's order is misplaced. (Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019, 1024, fn. 4.) Where, as here, the “legal effect” of an order taking a motion off calendar is to deny the motion—as opposed to postpone its resolution for a later hearing—we treat it as just that, a denial. (Ibid.) Given Sharma's failure to pursue the new trial motion, the judge's decision to take it off calendar “in legal effect ... constituted a denial of the motion.” (Ibid.; accord, American Advertising & Sales Co. v. Mid-Western Transport (1984) 152 Cal.App.3d 875, 877, fn. 1.)”
Thus, the 30-day period under rule 8.108(b)(1)(A) began running as soon as the defendant served that order on the same day, and the appeal filed more than 30 days later was untimely.
Comment: I don’t think this is sound reasoning. An order taking a motion off calendar may eventually prove to be, “in effect,” a denial, as happened here. But not necessarily. It is just as likely, for instance, that Sharma might have appeared ex parte to explain why she failed to appear, and to reset the hearing on the motion. And the trial court certainly was empowered to grant that request. (Had the trial court actually denied the motion for new trial, the trial court’s power over that collateral proceeding would have been at an end. People v. Wisely (1990) 224 Cal.App.3d 939, 948 ("'[O]nce a trial court has decided a new trial motion, it may not reconsider its ruling or entertain subsequent requests for new trial,' … 'otherwise, proceedings on new trial motions might `become interminable.'"].)
At any rate, courts and litigants are not meant to speculate about such possibilities. That is why the Legislature provided at section 663a that “the power of the court to rule on a motion for a new trial shall expire 75 days after” the notice of entry or the filing of the notice of intent. Until that statutory period actually expires, or the trial court actually denies the motion, the motion is not actually denied.
In this commentator’s view, the appeal was timely. Still, it is hard to feel sympathy for this appellant, who failed to file papers supporting the new trial motion, failed to appear at the hearing, and apparently took no action to explain or remedy these omissions.
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.
You know that the deadline to appeal may be extended if you file a posttrial motion. But beware: the extension does not apply if your posttrial motion turns out to be “invalid.” That very nearly happened in Arega v. Bay Area Rapid Transit Dist. (D1d3 Sep. 14, 2022 no. A163266) -- Cal.Rptr.3d --- (2022 WL 4232631) after the filed a motion to vacate under Code of Civil Procedure section 473(b) on grounds of inadvertence, surprise, mistake, or excusable neglect.
Fortunately for the appellants, the Court of Appeal held that a section 473 motion to vacate is still “valid” to extend the time to appeal, so long as it is filed within section 473’s outer six-month deadline. And that is the case even if the trial court denies the section 473 motion for not being filed sooner.
The plaintiffs in Arega lost their workplace discrimination case on summary judgment. A little over 60 days later, the plaintiffs brought a motion to vacate. The motion was brought under Code of Civil Procedure section 473(b) based on plaintiffs’ counsel inadvertence in failing to contest the tentative ruling and request oral argument. Counsel declared he had been suffering “flu-like” symptoms that day. The trial court ruled this was too little, too late, and denied the motion as untimely.
The district moved to dismiss the appeal. By the time the appeal was filed, it was more than 60 days after the notice of entry of judgment had been served. The plaintiffs argued their time to appeal was extended because of their motion to vacate. But the district argued that the extension of time, under California Rules of Court, rule 8.108, only applies where a “valid” motion is filed. Here, the trial court ruled the motion to vacate was untimely. Thus, the district argued, it was invalid, and could not extend the deadline to appeal.
The district had authority to support its position. Rule 8.108 provides that the time to appeal may be extended when a party files a “valid” motion to vacate. And a “valid” motion means two things: (1) it must be based on a recognized ground; and (2) it must be timely.
A “valid” motion to vacate, for purposes of extending the time for filing a notice of appeal, means “a motion based on some recognized grounds for vacation; it cannot be stretched to include any motion, regardless of the basis for it.” (Lamb v. Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1010.)
Here, the First District Court of Appeal concluded that the plaintiffs’ motion to set aside the judgment, although unsuccessful, was a “valid” motion to vacate judgment under rule 8.108(c). “There is no dispute that Plaintiffs’ motion was based on a recognized ground for vacation as it was based on “[i]nadvertence, surprise, mistake, or excusable neglect” pursuant to section 473(b).”
The closer call was whether the motion was timely. The difficulty here was that the statute has two clauses governing the time of filing. Section 473(b) states that a motion to vacate a judgment or an order “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)
Here, the plaintiffs filed the motion to vacate a little more than two months after the summary judgment. This was within the six-month outer limit. But, according to the trial court, it was not a “reasonable time,” so the motion was untimely.
So does this mean the motion was “invalid” under California Rules of Court, rule 8.108?
No, the motion was still valid to extend the time to appeal, the Court of Appeal held. The problem here is that the motion deadline here is discretionary, and yet this discretionary deadline to file the motion affects the jurisdictional deadline to file the appeal. So the court held that the shorter, discretionary deadline does not impact that jurisdictional analysis. “Given that what constitutes a reasonable time requires a case-by-case determination and depends on the discretion of the trial court, we do not accept that this requirement is a prerequisite to a motion under section 473(b) being ‘valid’ for purposes of Rule 8.108(c).”
(The court went on to note that, here, there was no evidence the delay in filing the motion to vacate as the result of bad faith or gamesmanship. So look for that possible distinction in future cases.)
Posttrial procedure gets confusing, and dangerous. If this were a motion for new trial, my advice would be: file the appeal now. That is because you get the best of both worlds: you have safely preserved your right to appeal, and because the motion for new trial is a collateral proceeding, the trial court may hear and decide it despite the pending appeal. (Neff v. Ernst (1957) 48 Cal.2d 628, 634.) Win-win.
But the same is not necessarily true with all posttrial motions.
There is a split of authority whether a JNOV motion is treated the same way as a new trial motion. (compare Foggy v. Ralph F. Clark & Assocs., Inc. (1st Dist. Div. 2 1987) 192 Cal.App.3d 1204, 1212-1213 [trial court retains jurisdiction], with Weisenburg v. Molina (1976) 58 Cal.App.3d 478, 486 [4th Dist. Div. Two, holding that trial court is divested of jurisdiction].)
And when it comes to a motion to vacate, taking an appeal divests the trial court’s authority to rule. (Takahashi v. Fish & Game Commission (1947) 30 Cal.2d 719, 725 [motion to vacate under CCP 663], rev’d on other grounds, (1948) 334 U.S. 410; Lippman v. City of Los Angeles (1991) 234 Cal.App.3d 1630, 1634; Weisenburg, supra, 58 Cal.App.3d at p. 486.]
So it is very important to carefully and timely prepare and file posttrial motions if you are relying on them to extend the time to appeal. This is an important time to consider consulting an appellate specialist.
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.
As a consensus-maker, Justice James Lambden never published a dissent in his 17 years on the Court of Appeal for the First District, despite sitting between two indomitable personalities in Justice J. Anthony Kline (Gov. Jerry Brown’s legal affairs secretary) and Justice Paul Hearle (Gov. Ronald Reagan’s appointments secretary). Justice Lambden explains why attorneys should direct their briefs to the justice “in the catbird seat,” and what it was like sitting in the catbird seat.
Justice Lambden also talks about his single unpublished dissent.
Justice Lambden also talks about his time as a judge on the Alameda County Superior Court, the great outdoors, finding and wearing a good hat, and what it’s like for judges to transition to private judging: “Going back out among the bar without wearing the robe is kind of intimidating. Like they say, they don’t laugh at my jokes anymore.”
Justice Lambden serves up a lot of sage advice:
Justice James Lambden’s biography.
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 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:
James Lambden 0:03
Going back out among the bar without worrying row is kind of intimidating. Like they say, they don't laugh at my jokes anymore.
Announcer 0:11
Welcome to the California pellet 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 0:25
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:28
And I'm Tim Kowal. The California appellate law podcast is a resource that Jeff and I put on for trial and appellate attorneys. Jeff and I are both appellate specialists, but we split our practices about evenly between trial and appellate courts. And in each episode, we try to bring some perspectives and news that practitioners can use in their practice.
Jeff Lewis 0:44
And our podcast is sponsored by casetext. A quick announcement about casetext it's a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019, and I highly endorse the service listeners of our podcasts can receive a 25% lifetime discount available to them if they sign up a casetext.com/calp That's casetext.com/CALP.
Tim Kowal 1:10
And today we are very privileged to welcome the Honorable James Landon to the show justice Landon sat on the First District Court of Appeal in San Francisco for 17 years authoring over 1000 opinions and joining and hundreds of other published opinions authored by his colleagues, more than 100 of his opinions resolved important civil issues and several of those resulted in new law either by subsequent legislation or as affirmed precedents. Justice lambda now serves as a mediator, arbitrator discovery referee and appellate consultant with ADR and we are so pleased to to have justice Landon, join us on the show today. So welcome. Thank you very much
James Lambden 1:47
to Jeff for inviting me. I'm very happy to be here.
Tim Kowal 1:51
And we will like I said, we're honored to have you. I wanted to start off just asking maybe some some personal questions that I've learned about you by digging. You've there have been some pieces in the daily journal and the recorder published about you talking about how you're an avid outdoorsman for many years and I wonder even what when you're on the bench you were getting outdoors. Since you have left the bench Have you been able to liberate yourself more often from the city to to get out into our beautiful exterior in California?
James Lambden 2:22
Well, we were talking about the mural was fine is being the Eastern Sierra. I have an early picture of me when I was a skinny freshman in high school on my first backpacking trip. I went backpacking every year more than once for almost 50 years, maybe more than 50 years. And I very much enjoyed that I hiked the John Muir Trail twice, once in pieces and once through hikes. I lost 18 pounds. I lost three quarters of a pound a day during that night.
Tim Kowal 2:54
And how long is that hike?
James Lambden 2:56
It's about 225 miles and it took 21 days a little bit extra. When my wife picked me up in Yosemite Valley, she took one look at me and burst into tears. I was surrounded by a group of tourists who were basically wondering what happened to them. And it was one of the high points of my career and hiking. I worked with several my friends were judges as well. And I continue to get outdoors although I retired 10 years ago and when I when I retired, I did take some some of those more vigorous fights, which were daunting. But now I get out several times a week for a good five miles but I don't go to the altitude quite so much. But I still very much enjoy the outdoors.
Tim Kowal 3:42
Oh, good five miles at a stretch is is a good number I have no I have small kids. So I use that as an excuse that it would exceed their limit. So as a result, I've gotten fat sitting in my chair. Well, and in addition to your career on the bench and your avocation in the outdoors, I also understand you're a man of many hats, literally, that you are a collector of hats that used to display in your chambers.
James Lambden 4:06
Well, you must have seen it like it was a daily journal article and the photographer who came was delighted to see all those hats and actually did a sort of a montage I've always had floating in the air. I'm not sure exactly how it happened, but my baby pictures have me wearing hats. I had seven uncles and I was a late baby. So there was a lot of I got a lot of attention from my family. And one thing about hats is when people think you'd like hats they give them to you. So one point I had maybe 35 hats, most of which didn't fit me because people found that there was amusing you could give me a three quarter and a hat with a feather on it but it wouldn't fit me. Since I've retired. I've had better hats. And I've done a couple of mock trials in New York and I have a hat up in New York that I frequent and treat myself whenever I go, I get lecture about hats. There's there's three places in the country where you can get hats, Chicago, New York and St. Louis. And they sell their hats in Hollywood. So in California, you can find them in Hollywood as well. So we're talking about good hands. An indulgence. Yeah.
Tim Kowal 5:21
Yeah, a hat wearing is kind of a lost lost art in my generation. There's not a lot of hat wearing going on. What's the I know, you're not wearing a hat today, for example. So what is the what's the proper decorum for hat wearing?
James Lambden 5:34
Well, generally, you need to get one that doesn't come small, medium and large. It needs to have numbers attached to it. And you need to know what your what your hat size is, and you need to spend some money on it. I mean, they're not, they're not inexpensive. One thing that I enjoyed was it when I retired and I got back out on the street. In San Francisco, I would be walking along Market Street and middle aged woman would come up to me and say, Oh, it's so sweet to see you wearing a hat. My grandfather wore hats. That put me a little bit off because I was in the grandfather stage when I was coming up in the 60s. And the only people that wear hats were young, black, new and old white man. And I kind of fit the second category. But I enjoy him a lot. He gets me a lot of attention.
Tim Kowal 6:20
And I heard a story or I read about a story where you I know I know John Eisenberg, or I know everyone knows of John Eisenberg in the appellate world, that you gave John Eisenberg, a hat one time, that a true story is that I
James Lambden 6:34
did, I did indeed get a Johnny hat. He's one of the few people that had a hat big enough to to that I can hand me down one. I have another good story in the Old Hawthorne laid restaurant, I went in there one day with some colleagues wearing a hat. And when I came out, I gave him my ticket. And they brought me Willie Browns hat, because he was apparently in the in the restaurant at the same time. And I teased Mayor Brown later saying that his hat was way too small for me. But she thought it was funny.
Tim Kowal 7:07
So are your best hats. The ones that you buy for yourself or the ones that you've been given?
James Lambden 7:11
The ones I buy for myself. That joke hats are not are not really very good unless somebody also let me try on their barristers wig, which is sort of a hat. I don't have one of those partly because they're horrendously expensive. They're antiques. I don't think I need to invest in one of those.
Tim Kowal 7:32
Well, let's move on from hats and talk about talking about your career on the bench. And and now you're in private judging. Is there something can you tell us something about private judging, that you that you enjoy or that maybe surprised you as you transition from the bench as some time ago that now that you transition, but why you got advantage on both worlds? Well,
James Lambden 7:51
I like to say that I had all the best jobs that you can have in the legal profession, I was a partner at a great law firm. And I was I enjoyed being a trial judge very, very much. And the Court of Appeal is I think, the best job in government you can have, you have resources, you've got help, you've got some influence, and nobody knows who you are, for the most part, and the game is not in the paper, so you don't get as many death threats. And I was surprised at how much I enjoyed the the private, the private world the alternative dispute resolution consulting work, partly because I had forgotten how gregarious I am. So I enjoyed seeing the people there are a lot of people in court of appeal, obviously, but they're the same people. What
Tim Kowal 8:38
do you mean, you would you would forgotten how gregarious you are? Well, because
James Lambden 8:41
when I was in law in motion in Alameda County, I did the whole county is in a master calendar. So I had about 30 cases a day. And during that time, you know, the estimate is in a, probably her 25 to 30,000 cases. And during that period, all of the people that I ran into tended to be the younger attorneys, given the job of going to law. And when I came out, I found that they're all managing partners. Now. They're still practicing, and they're still happy to see me and they remember me. So I discovered that I had many more friends and I hadn't seen in a long time working on the Court of Appeal is like working in a museum in a certain way. It's very comfortable, and it's very quiet. So I was really happy to get back out on the border friends again.
Tim Kowal 9:34
Yeah, you don't get you don't get as many opportunities to interact is oral argument at the Court of Appeal is not the same thing as interacting with counsel at law in motion.
James Lambden 9:42
Ya know, it's one day a month or two, maybe and again, you kind of see the same people. I was always surprised that over half of the cases they would wait argument. I really Yeah, I would never do that. But I think at one point it was about 60% We're waiving arguments, mostly those were the criminal, a lot of those were the criminal cases. Or remember that we complained when the AGs office, which was located in the same building, and we were in would call and will appear by telephone, Justice client in particular. So we at least you've jumped downstairs. Okay. So I've always really enjoyed the arguments.
Jeff Lewis 10:25
Yeah, it's that it's that, or what would you say is something that you miss the most from the Court of Appeal? Was that the arguments or anything else?
James Lambden 10:32
Well, I certainly I certainly missed the people. You know, you get very close to your to your staff in particular, over the years I have had, I was on the trial court. At one point, I had seven research attorneys who report to me Oh, and on the Court of Appeal, I always had no fewer than three and maybe an extra. And you get very close to those people. I mean, you really kind of sit around in the office and Jawbone with them a lot and and get to know them very closely, along with your assistants, and they're on the staff. So I really missed the people. I didn't miss the time that you have. The thing about the Court of Appeal is that you finish the opinion when you say it's finished, although you know, we have over the years are some complaints about the delays. But having the time to reflect is really nice, a lot of motion. It's kind of a shoot from the hip decision that you make. And I enjoyed that a lot, too, although it's very wearing to have that many cases today in order to do a good job on all those cases. Because like I said, I had seven attorneys. And every afternoon after the calendar, we would line up on two couches with me in front and go down the line with them briefing me on the next day's cases. And that was makes the time go by for sure.
Jeff Lewis 11:51
I bet I bet when I first when I was a young law student, I clerked for the la da da da is office doing preliminary hearings, you'd show up in the morning and they'd hand you 10 files. All right here your preliminary hearings for the certified law student. He just never knew what it would be.
James Lambden 12:09
Like I always I always told my my law clerks, I had a lot of interns on the Court of Appeal. And that's, that's one thing I really enjoy. And if you really want to be a trial lawyer, go to work for public office. Because they'll hand you a dozen files and say here, take care of these. And, and you will learn to talk on your feet pretty quickly.
Jeff Lewis 12:28
Yeah, that's great advice. And you get in front of so many different judges, when you're certified law students that by the time you're graduate, and you're ready to practice, you're no longer intimidated by certain personality types on the bench. It's
James Lambden 12:41
another story there, then it's, you know, it's a fairly small community. So I when I came on the bench, I was the first civil lawyer in a long time to be the Pope, because of Meijin. He appointed a lot of prosecutors, and my very first faladi calendar, I walked out to a packed courtroom, every da and PD in the building, I've had come to see how to land and perform that first day. And it was daunting. Then I got that I got the flops, let's actually actually have one of the defendants have a jury box filled with guys wearing orange suits. And one of them actually spoke up and said, Aren't you supposed to remind him he has a right to a lawyer? They said thank you and skip that in my script. So that was a very steep learning curve, but I enjoy doing criminal cases as well.
Tim Kowal 13:33
Wow. Well, you mentioned that the one of the things you missed from the Court of Appeal are your colleagues. While you were at the first district Division Two, you worked alongside Justice Anthony Klein, who had been Governor Jerry Brown's legal affairs secretary and you also worked alongside justice Paul Paul hurl, who had been governor Reagan's appointments, Secretary, there must be some stories there do the did the different perspectives represented on on your panel produce better results, and it produced friction or a little about? Well,
James Lambden 14:03
a little of both, but I think generally a very good result. Justice Harley was certainly a more conservative justice, but he was also a gentleman, and very willing to listen to different points of view. And Justice Klein was rather famous for me, opinionated. And there had been for a number of years server revolving door in Division Two, in terms of people who moved on. And there were some famous feuds in Division Two as well. But on balance, I think that I think that we did a good job. The three of us later we were joined by Justice robola. In getting along, a good example would be the very first cannabis case that was hurt in California came to work. And by the luck of the draw, went to justice Harley, and we teased him A great deal about handling the first cannabis case, including getting him hemp stationary. And I can't remember what else we did for him. But it was a good example that although he was conservative, we got the right answer. And I was very proud of the result in that case and others as well. Another one that we had was the one on one California shooting, which came through our division. And we had elaborate discussions over how to deal with that case. And I think I think we ended up with three different opinions. I can't remember exactly I know I wrote separately. So yes, I think we I think we did a good job.
Tim Kowal 15:39
Now there's been, you know, as you were talking and made me reminded me that there's been a lot of lot of ink recently as the Governor has been looking to fill the Chief Justice slot on the Supreme Court. And there's been a lot of a lot of folks out there talking about opining about how how collegial, and how consistent the Supreme Court has been in our state and in giving a lot of unanimous decisions, despite even controversial issues. And one of the more common explanations is that well, maybe all of them, all the justices are more or less ideologically aligned, there tend to be slightly left of center. That explanation didn't quite seem to match up with, with your panel with with justices Klein. And in Harley, it seems like you were in yet during your 17 years on the bench. You never filed a dissenting opinion. So you obviously had very good collegiality produced a lot of unanimous opinions. So what was the secret sauce there?
James Lambden 16:36
Well, I think you I think you've, you've pointed out the exact point, which is that I always tried to mediate between my my two colleagues and I didn't write any I did actually write one dissent. I'll tell you about that in a minute. It was unpublished, but I was in the catbird. Seat. I mean, generally, I was going to be the deciding vote if there was a big disagreement. So my effort was to try as best I could to achieve a unanimous, unanimous decision. If I could negotiate the the language of an opinion that everybody signed, I was very, very proud to do that. I did worry, one dissenting opinion. And I think it is my my friend, Justice ruled that it was only him. And it involves some ridiculous dispute over trees that were cut down by a homeowner's association. And I was convinced that he got it wrong. But it wasn't necessary for me to descend generally. And we wrote some very good opinions. And I think for that reason,
Tim Kowal 17:38
you mentioned, you mentioned that the opinion over over cutting down trees, I've had those kinds of cases. And I hear about those kinds of cases. And Jeff and I have talked about in another episode about how the court of appeal has a lot of has a wide panoply of cases that it has to decide, many have very grave ramifications. There are death penalty cases or people with life without parole, there are custody cases involving parents rights to over their children. And then we have cases about whether you should have cut down my tree or not. And I wonder if that fact factors in do you get those decision those cases sometimes and say, another one?
James Lambden 18:16
Well, one thing that was really enjoyable going back again, to what I was on the court of truck court in law in motion, I was kind of on the bubble, because if I read something in the Chronicle or the or the East Bay papers on Thursday, I might well have an ex parte application on Friday relating to that. And one thing that you mentioned trees, Berkeley, in particular is tree central for tree lawsuits. So I got a lot of those on the court. And then you also find on the Court of Appeal that you see the trend as well. If you go to the old, you know, any of the old digests, you'll discover that there's a huge number of cases involving ladders, trees and fences, because that's what people get involved in, in their neighborhoods. And then on the other end, you get big questions of policy, you know, and they really enjoyable work on the Court of Appeal is to get it in a really great policy question that you get to think about and argue with your friends about and maybe influence. I mentioned the the California shooting the one on one California shooting that was one that allowed us to debate greatly what the gun control could look like. And this was pointing years ago, more than another thing that people don't particularly realize is that we give up our First Amendment rights to go on record, essentially, you know, you can't go around talking and advocating and you should not. For example, I was never a member of the Sierra Club because their their cases were cut in front of me even though I'm an avid outdoorsman, but a good story of On the other side would be that I wrote an opinion, overturning the divorce settlement of Barry Bonds, which you may recall, which was a little bit off the off the ranch because we interpreted strict scrutiny into statute in order to overturn his divorce settlement, probably reversed by the Supreme Court. But I took a copy of the opinion that I wrote and wrote FYI on it and sent it to somebody in the State Senate. And the law was changed. And another example of that would have been the one on one California said, at the time, I wrote a concurring opinion pointing out, the legislator had pointed past a Civil Code section that said that manufacturers of firearms cannot be held liable. And once again, I took a copy of our opinion in that case, which was the result that we were forced to reach. And I sent a copy of that to the Speaker of the House, or the speaker of the assembly at that time, Don Bharati, and that code section was rescinded. So, and that's not advocacy, that's just for your information legislature. And we have the ability to comment on the law, which is important.
Tim Kowal 21:19
No, it's interesting, because we lawyers see that from time to time in the opinions where it will conclude there'll be a topic about the separation of powers that well, while we sympathize with the appellant, this is a policy proposal that only the legislature can make, and we're not a legislature. So we we suggest that the legislature take a look at this next time it's in session, that sort of thing. Whenever we lawyer see that, should we is it safe to assume that that may be the author of The that opinion is sending a copy up to the to the legislature?
James Lambden 21:50
Well, possibly, because like I say, it is part of our job to educate and, and bring attention to that when it's not the law. And when I when I was in law in motion, I would frequently tap on the microphone for the reporting transcript and say, Court of Appeal. This is an interesting issue. The lawyers in the audience always like to, and occasionally they listen, as well.
Tim Kowal 22:15
I've never heard that done. But that's, I liked that idea. You can you can punctuate the record that way.
James Lambden 22:20
Ya know, I often encourage people to appeal me, you know, more than once saying this is this deserves an opinion on things I ran across. One thing that I run across now as a, as a read a rabbi and evaluation is that there are areas where people will argue, make arguments, and they'll say there's no, there's no authority? And the answer is will nobody ever brought it up. And there should be an opinion on this, or nobody. It wasn't needed, because you're wrong. It's not It's so obvious that you don't, you're not going to find authority because nobody's ever going to bother.
Tim Kowal 23:00
Yeah, you're so obviously wrong, or or you're just brilliant, and no one understands.
James Lambden 23:05
Yeah, and by all means, if we can't sell it today, go ahead and file your appeal.
Tim Kowal 23:10
Right. Now, I just wanted to go back to one thing that you mentioned about the you are in the catbird seat when you're on your panel with with your colleagues. And I wonder if that if that can translate in any practical advice to practitioners who are they're drafting their their arguments in their appellate briefs? And maybe they're maybe they're envisioning their panel? Maybe has they got one vote to to reverse one vote to affirm and then there's a there's someone like justice Landon Landon, in the catbird seat, is there something that you can use to kind of modulate your arguments to to appeal to that middling row position?
James Lambden 23:45
Yeah, well educate yourself. Because sticking with that point, I often had the feeling that I was being spoken to, in the arguments, because they might, in that particular case, think I was going to be the deciding vote. But I advise people, when I'm doing appellate consultations to try to figure out who's going to write this opinion, I still, you know, I still know most of the people on the Court of Appeal, and even the ones that didn't work with so when we're, when I'm consulting, the very first thing we want to I want to try to do is to figure out who we think is going to write this and what their predilections will be, and who might be the who might be the person that's going to argue with the author, as well. It's kind of hard to do. And it's one of the things that a pellet, ADR consultant can do as we did in in that before when we were still appearing in person. One thing that I enjoyed doing was showing up in the at the arguments because they know that you're sitting up and they pretty much know why you're there because you've been involved in the case is you may remember that when Justice cokie retired from the third district, he got a little bit of a stir because he showed up as an advocate, like in the same court within a month or two She was noticed nothing wrong with it. Can't remember the case, but it was obviously designed to be influential.
Tim Kowal 25:08
Yeah, we have the same thing happening in the ninth circuit with former judge Kozinski, former chief judge because it because insky is now a practitioner in that court.
James Lambden 25:15
I've got a lot of convinced case stories, but I probably won't tell you most of those, because he's very interesting, though.
Tim Kowal 25:20
Maybe after the red light goes off all Alaska again, you described yourself as a judge as being an academic judge, and that you're you're trying to get the right answer. And I wondered if you could just elaborate on that a little bit. Are there? Are there different schools of thought on that point? I would think that that all judges are trying to get to the right answer. But I wonder Well,
James Lambden 25:40
I think if I had to restate that, I would say that I'm a process Judge, I wants to describe myself to one of my colleagues as that our position is a guardian of due process. One of my colleagues, federal judge was confronted in a country store somewhere. And they sort of braced him saying, Well, are you one of them liberal judges? And his response was that well, if Congress passes what you consider to be a liberal law enforcement, if they pass a conservative law, I'll enforce that. I think we, as I mentioned earlier, we give up our First Amendment rights to some extent. And the pledge is that we will, you know, stay within the lines and trying to try to make sure that the process itself protects the law. And even if we may disagree with the result that we reach, and I've disagreed with a lot of opinions, a lot of the results that I have reached personally, but the law is the law. What about
Tim Kowal 26:41
your work in private judging? Do you do you see your role as being the same? Do you? Is it following a process? Or is it trying to get a right result? If those two things are different? Or is it is it a different kind of animal? Well, one reason I enjoy
James Lambden 26:54
it is that it's very much a different kind of animal. And it's more directly applicable to the problem. The legal process is opaque to most people, except for the lawyers. And the fact that I get to educate and advocate directly to the parties is and is required, because they're the ones that are deciding what they're going to do with their case. They're all surprised to hear when I tell them that my entire career almost 50 years, more than 95% of the cases that are filed in court settle. And they're shocked by that they assume that everybody, it all goes to trial? No, it doesn't. And one of the things that I'm enjoying about this private practice is that there is a growing realization, particularly post COVID, that litigation is not like preparing for a battle is more like going on an expedition. It's more like taking a trip across the mountains and encountering different places where you have to do different things. And I'm seeing that lawyers are beginning to appreciate that more so that you know, you don't sit down and just think well, I'll threaten the other guy that I'm gonna go to trial, and I'm gonna go. And well, that's really not what the process is going to achieve, if that's your attitude. So I've always advocated against going away from the sort of chest beating, threatening, beat you in court kind of approach to being as collaborative as you can, that you got two clients that aren't getting along and have a dispute and you need to help them resolve it. So I think that the new paradigm now is much more shifting in that direction. Like I can feel it, partly because the courts are appreciating it. They're appreciating that managing the calendar, rather than simply calling the case and trying it as a much better way to resolve the disputes, basically recognizing that most should settle.
Tim Kowal 28:55
But what do you mean that you said you you see things shifting what what has changed? I very much like that observation that litigation is not a battle, it's more like an expedition. Because in my experience, it feels like at the beginning of a case, you only know what your client has told you. And maybe you've done a little bit of independent investigation just to satisfy your your one 20.7 obligations. But usually, by the time you get to trial, you're looking back at your complaint and you think, gosh, if I only knew then what I know now,
James Lambden 29:22
well, I advocate an early not evaluation, the mediator, but an early early evaluation of your case by recognizing those signposts along the way, or things will occur. A good example, though, is an early mediation, where the complaint is filed and you call up the other side and beat your chest and said how powerful and what a great attorney you are, and then decide what comes next is frequently useful to decide, well, let's do the P and K the person who was qualified deposition right now. And then let's talk to a video or alternatively, Let's start thinking about what this what discovery is going to be like, if you've got a case that has a million items, electronically stored information, you should be able to recognize that's going to be a problem. And that the other side is going to object, everything and you're gonna object to everything. So think about how you're going to manage that. Because you are going to management management, no matter how many times you go to court and shout at each other over somebody's not answering or answering effectively, you're still going to have to get over the information. So another thing that I'm seeing more from the courts are references for the discovery of doing a lot of them. And in the old days, there was a reluctance to do that, because of the expense to the parties and the feeling that you were putting people off to somebody else, plenty of authority now that you can't just assign your discovery calendar to a referee, but you can assign the management of discovery to a referee. And ultimately, it may be cheaper for the parties, to not have to reserve a date go in and yell at each other for each problem they arise. So what I'm doing a reference, for example, we have an initial meeting where I'm kind of mediating, say, what are your What are your B's going to be like? What do you think's going to happen with all of this ESI? How is it going to be managed? And then regular conferences that are reported to the court? What's going on? Now the judges in court love it. Really, I think that's something that's really changed, rather than being reluctant to get help outside of court. Now they're seeing what a boon it can be in terms of not just putting the work on somebody else, but actually making the case get settled and get moving. Yeah.
Tim Kowal 31:44
I hate discovery disputes. Yeah, well, and another example
James Lambden 31:47
would be, this comes up in a mediation where I've been talking to the parties, it's businesses being let's say that the one, the one issue is going to be the value of the stock there are. So you can you can either stipulate or get the court to appoint an accountant who will decide that issue and present it and the case will sell. And she got that number. And I've done some arbitrations like that, where they brought me just one issue inside whether or not this agreement for purchase and sale of stock is enforceable. Once they get that answer. It's done.
Jeff Lewis 32:23
So we talked about evaluating cases like pre trial in terms of discovery, how about in terms of appeals and post trial is the best time to get a neutral involved, immediately after the adverse verdict when emotions are running hot, and someone's thinking about appealing or maybe a year later, when appellate briefs are about ready to be written? When's the best time to get a neutral evaluation of a possible appeal?
James Lambden 32:47
Well, one thing you mentioned that in the right case that needs it, you can afford it, you should hire your appellate lawyer before the verdict. That's number one. And then secondly, appellate mediations are difficult, because somebody's already won. And that generally means that they're going to try to bring it to me, for example, to tell them who's going to win the appeal. And that's not particularly useful, because that can't just say, I think the court was wrong, give them the money, because they're, they're not gonna like that answer. But you can, you know, evaluate in the right case have better result. And that's where the evaluation of an appeal with a mock trial may be useful to write the briefs as well, to say it's not only here's how your argue can be improved, but this isn't the issue is really going to matter. And this is the one that they may or may not publish on. We have done in my office focus groups, we have a number of retired justices. So we've actually had cases where we've been large enough that they've hired maybe two or three panels, multiple justices to here and then vote on what do you think the result is going to be? And they pay attention to that?
Jeff Lewis 34:07
Let me ask you, I've got buddies from law school who have done moot courts with in advance of appeals. What can a retired justice offer or group of retired justices offer in a in a mock argument that my law school pals camp? Well, it
James Lambden 34:21
depends, you know, I would say this, some of my, you know, there's a wide variety of how good that experience can be. One thing I would suggest is if you're going to bring a mock trial, hire, find one of your law school buddies to play the other side and get somebody that you know, will do a good job. And then make sure that you get justices who will engage many of the oral arguments on the Court of Appeal are not particularly engaged, but get people who will really take him seriously in terms of not acting like they used to on the bench, but actually being interested in your problem. And that's helped me in that regard. It's helpful if you bring us in to talk about the case when you're writing the briefs. When when you're putting it together, so the typical consultation for me it starts at that point, maybe the appellate brief is in file and the respondent wants just wants to help draft, you know, help draft the reply. And if we're engaged at each stage of the appellate opening, brief response, and then the reply, it's pretty easy to direct people in the direction of where do you think the arguments gonna go? Particularly if you're forewarned in some fashion by knowing who the panel? Yeah, yeah. All right.
Jeff Lewis 35:35
So you shared some best practices in terms of things to make sure you do in connection with a mock trial. I wonder whether it's mediation or evaluation, post trial, are there any pet peeves, or things that lawyers should avoid doing to make sure they get the best value out of an evaluation or mock trial?
James Lambden 35:55
Gender, generally, it's a good idea to practice your elevator speech on what the script is, too much information is not helpful, you know, frequently, they'll send, even in a non appellate case, they'll send their whole file, read all my briefs filed in this case, and that's not particularly helpful, the thing that's most useful is to focus on what's going to be important. So. And I observed that when I was a trial judge as well, I get to the day of trial, and it occurs to me, these people don't really have a theory of their case, they haven't really figured out what they're going to argue here. So you need to regard it as a narrative from the beginning and write your script accordingly. And then when you get to somebody that you're paying a lot of money to evaluate, make sure that you're bringing up the points that are pertinent, or ask which points are going to be pertinent. But that's, that's the point of having somebody evaluate. And there's been a real shift that everybody recognizes now from sort of a sociological approach to mediations to the evaluation approach, which doesn't mean coming in and you know, you arrive and you say, Judge, evaluate this and tell them to pay me, it means that you'll actually talk about what's going to happen and what the moving parts are, which aren't all legal, and aren't all money. A lot of times it's Mother, Mother always like to invest or I hate my brother in law. That's, that's one of the things that's much more interesting and enjoyable quark is dealing with people.
Tim Kowal 37:30
That's, that's what you refer to as the sociological part of the case.
James Lambden 37:34
Well, you know, originally, the mediation work came from sociological studies about sort of getting people to recognize their own interests and get it off their chest and cause them to have some sort of a kumbaya moment where everybody shakes hands and says, Oh, we didn't meet, it will settle. Everybody realizes that, that's interesting. But it's not really how it works in Hurly burly of the legal world in litigation. But it's still a factor. So I expected because of the, you know, taking some mediation courses, that there would be a lot more of this sort of warm and fuzzy stuff about trying to find out how people are feeling about their opponents, it's pretty easy. Usually, they're mad at their opponents, you know, you walk in the door, and they know that you're, they know that somebody's either suing them or they're being sued and sort of pissed off, I kind of refer that as a fortress mentality, that everybody hunkers down behind their battlements and says, We're gonna win this battle, and assumes positions without really thinking about what that means, in terms of a two year court delay to get a trial, the amount of money they're going to spend on their lawyers, and you know, what their hard feelings are worth to them in the real world. So that that part I still enjoy very much, but it's kind of subrosa legal discussion.
Tim Kowal 38:57
Yeah, as you talk, I hear you, I hear you talking, touching on a lot of themes that I could, I could describe as theory of mediation and different it's a different skill set, or it's a distinct skill set from from the skill set, you practice as being a jurist. And I wonder, is, was the transition to to, you know, to adapting and, and utilizing these, this mediation skill set? Was that natural or that takes some time to, to learn these? Or did this all come from being on the job training being a superior court judge and then a Court of Appeal justice?
James Lambden 39:32
Well, some of each, a lot of my colleagues, both trial judges and appellate justices kind of find that transition to be difficult. This sort of going back out among the bar without worrying the row is kind of intimidating. Like they say they don't laugh at my jokes anymore. So there's that and then there's also the situation where the instinct is to be very Evaluate it right off the bat, say, I've read your brace, you're gonna win pay him. And that that won't work. Also, judges are sort of taken aback to discover that they're not working for the lawyers. Really we are the lawyers pick the mediators and arbitrators. And that that can be a little intimidating. But my background was searching the internet also, in terms of what I did, as extra extra curricular activities on the Court of Appeal was that I was more open to being out among the people and paying attention to their non legal questions, and non legal interests. And I've always was, I always thought I would end up being a professor, because I really like educating people turns out that I can do that get paid much better than I would if I was a professor. So I'm doing it now. So that part I enjoy a lot. And as I said earlier, being able to talk directly to, to the people who are the stakeholders, and answer their questions is very, very enjoyable.
Tim Kowal 41:03
Well, you mentioned about the elevator pitch problem we talked about a lot is the throwing the spaghetti at the wall problem when you don't have a theory of the case. And you're just gonna throw all your arguments out there. And it made me think back to from your time on the bench, are there some best practices that you can share with our audience about brief writing to grab the court's attention? I take it the same, the same advice would apply there. Don't throw all this spaghetti at the wall. Do a lot of attorneys have trouble learning that that lesson?
James Lambden 41:33
Well, one thing that I love about attorneys and one thing that annoys me is that there's so thorough that the one thing that an attorney fears more than being buried alive is missing center. So think about the bar exam. It's all about recognizing issues, so that thoroughness leads to over writing. And over arguing, generally, when I was on the law in motion bench, I frequently would raise my hand and say, Okay, you're running the loop again, you don't need to do that. I've heard the argument the first time. Another thing that I used to say is, somebody had told me that I could I could have wrote written a shorter brief, but it didn't have enough time. Because it takes more time to write succinctly. And that is to write to the point. So not giving up an issue. I think I used to say on the Court of Appeal, there's nothing stronger than conceding an issue to say, all right, Your Honor, I know that issue is not my strongest point. Let me tell you what my strongest point is.
Tim Kowal 42:37
But that goes against all of our training.
James Lambden 42:38
Exactly. And it takes courage. It takes courage to do that. Because your client then like to hear that bro, one thing you know, your clients pay by the edge of the briefs, to be thorough. So
Tim Kowal 42:51
what's the advantage of conceding a point? What what is that by the attorney,
James Lambden 42:55
it buys you credibility in the Court of Appeal, to argue a point, that's clearly not the most important point, and you've got 15 minutes to make your argument is just a waste of time. And we always noticed, when somebody would say, I'm not going to talk about that, I'm going to talk about this. That's, that's what's strong about it. And it takes the courage of your convictions, knowing what your case is about, and not simply being ultra thorough. I would say to that, I will I will mention one other pet peeve, I suppose at the pet peeve would be the, the, what you'd call it the the battle theory that you I'm not going to answer any of your questions. You're not going to get any cooperation out of me ever on anything. I'm going to fight you tooth and nail right to the courthouse steps in front of a theory. I still run across attorneys that behave that way. And it's it's always annoyed me but it's also a counter purposes with what their what their job is. And, you know, I think we've all observed there a sizable percentage of attorneys who get along pretty well, despite being unpleasant. You know, you can settle, you can settle cases, you can, you can recognize cases that will settle this because I'm tired of dealing with that. So, I always encourage people to remember to show my compassion but allow your opponent to save face, you don't need to grind their heel on the fact that they've lost their emotion.
Tim Kowal 44:28
I wanted to ask you about something that I was thinking about recently about one of the differences between the California State appellate system and in the federal system is that in the California State system, we don't have horizontal starry decisis meaning that a court of appeal in the in California can look at another District Court of Appeal opinion as persuasive or not. If the court doesn't is not inclined to agree without holding. It's it can treated as if it doesn't exist. And I wondered if you thought for Your time on the bench. This makes a big difference or a small difference in in your work and as a as a justice deciding the cases there's practitioners out to keep in mind. Well, there's a
James Lambden 45:11
parallel question there. And that is the perennial fight over whether or not you can cite unpublished cases, which are available to everybody. And it's, you know, the old kept secret that Court of Appeal justice can look at it and publish case and like the reasoning of it, and find a way to put it in an opinion. You make me think of a recent arbitration that I that I did, where I actually put a footnote in pointing out that if you read the Mon chars decision from the Supreme Court that the Justice Lucas road, if you read that carefully, it essentially says that an arbitrator can look at anything, you know, you're not going to have an appeal on it, and not limited to published opinion. So I think I was, might have shocked the parties because I had this arbitration where both sides were arguing at great length, unpublished opinions and complaining that the other guy should be allowed to cite them. And of course, I found all of them very persuasive. And wrote an opinion that way, so. So you can always find a way to get the reasoning into the case. And as you know, I would admit that a court of appeal, justice will do that, and adopt the reasoning of the case. So I think that happens in all the court system. You know, it's not once again, it's not a big community. So we know what other people have said,
Tim Kowal 46:36
ya know, that that's a good thought. I mean, that the point that you that a lawyer may not cite an unpublished decision, but that practitioner could still copy and paste the language that reasoning make the same argument, and it has as much binding authority. The reasoning has as much binding authority as another published District Court of Appeal opinion in that it doesn't have any binding authority. It's it's what the Court of Appeal decides it finds persuasive or not.
James Lambden 47:04
Well, and you know, I can't give you any citations. One thing I loved about my friend justice client, is that he could give you the citation for every case he ever wrote. But if I, if I had some time to study it, I can show you some appellate opinions that contain the reasoning of unpublished opinions, which then makes them published, which is, which is the way it works? So you know, the right answer is where you find,
Tim Kowal 47:33
yeah, yeah, that's right. Let me ask you this question. Most appellate attorneys that we talked to would would love it. If the Court were to issue more tentative opinions or focus letters and your divisions practice, when you're on the bench was to issue focus letters before oral argument, which would tell the advocates what issues the panel was particularly interested in hearing about during oral argument? What was your experience, like with the focus letter, it was was it positive,
James Lambden 48:00
it was definitely an ad, I'll go back a little further to say that I wasn't the wasn't the midwife for the idea of tentative rulings, but I was there at the birth. And the idea on the trial court was that you didn't make people come to court, you know, you put it on the phone line, what the ruling was, and they wouldn't show up. But on that on my trial bench, I most frequently used it to say parties appear, I want to hear your argument on this point. And I would say, parties appeared. And I'm interested in this, and they would show up, and that carried over to the Court of Appeal on the Court of Appeal. Originally, when I started, the idea was, well, if we give them a tentative ruling, they're just going to come in, argue with us, and tell us we're wrong. And we've already written the opinion. So we don't want to hear it. So the compromise was really the focus letter, which is kind of like saying parties to appear, we want we want this is what we want to hear about. And then also avoid that concession problem and discuss some issues that we just that aren't going to be important to us. So I think it worked really well. I know that some of the divisions, I think in the first district are now posting their draft, which was done in the fourth different for many years. And I haven't I have no objection to that either. But I think the focus letter makes the argument better, because you're actually saying this is what this is what we're interested in, rather than here's the draft, and once again, you can come and argue with us and tell us we're wrong, which is which is not really helpful. It comes from my actually thinking that oral argument is important. Versus as I said, surprises me that so many people weigh that and it may be appropriate and routine cases. But on the other hand, if it's worth appealing, I think I'd like to talk about it.
Tim Kowal 49:51
Well on that subject you your division did not have I wasn't aware of this your division did not have time limit on oral argument you had said at one point that we just let you talk until we're not until you're not interested anymore. And I wondered if maybe the corollary to that is at some point, the panel probably is no longer interested, how do lawyers get the hint that they ought to stop talking?
James Lambden 50:13
Well, we would let you know, obviously, we'd never, in all my years on the on the Court of Appeal, we never use the lights that light up and say you're done. But you make me think of an interesting story where it was turned back on us, the late Dennis Reardon, passed away very recently, was a real favorite of ours. And I can remember a day in an oral argument where he had his notes, and he was arguing at great length and became frustrated, closed his folder and said, Well, if you guys don't get it done, and sat down, we all we all laughed uproariously, actually. And it was and it was very, it was very amusing. And it was very tennis as well. Yeah. So we were never, I can remember reading well into the lunch hour, if we found both attorneys with an issue that mattered talking very well without the particular issues. And we often would set calendar that way. If we had a case where we were really arguing about the result, we could at last, we could run into lunch, because I think all of us enjoyed argument
Tim Kowal 51:25
that any attorneys abused the privilege and just droning on and on and on, even though the bench may have been cold.
James Lambden 51:31
No, we wouldn't let him do that. When you're when you're when you're done, you're done. I should say to that. Another thing about being with Harley and Klein was that I think I presided. It was actually presiding judge and oral argument maybe two or three times in 17 years. And a couple of those were when I was protesting in a different division, because one of them was always there. Yeah, because the only person that served longer with Klein was Harley, and by about six months, because I like to say I did a 70 year sentence with Klein.
Tim Kowal 52:06
Well, I wanted to conclude by talking about your work on access to justice more broadly. And I know this has been part of your life's work since 1997. You've you were first a founding member and then chairman, and now an ex officio member of the California Commission on access to justice, you served on the board of the National Consortium on racial and ethnic fairness, for nine years, you chaired the access and fairness Advisory Committee of the California Judicial Council. And in 2013, you received the Benjamin oranda award for your lifelong work to removing barriers to access to justice. And you've talked before about how your sister's hearing loss initially spurred your interest in helping the deaf and blind to gain better access to justice. So when you started this journey 25 years ago, and you're working on access to justice, what were the resources like and how have they improved?
James Lambden 52:55
Well, there wasn't much when I was a young lawyer, and because of my sister, I, and also because my firm had clients when the California School for the Deaf was in Berkeley at that time, I was really struck with the fact that if you're deaf in the courtroom, you're excluded, completely excluded. Nothing know what's going on. Basically, my very first project was to get the Bar Association referral line put on a TTY so that deaf people could actually get a lawyer. And once you open that door, and you see the barriers to justice the first time you see them everywhere. And when I started working for the court, I remember those signs, maybe to you remember, there was a sign on every clerk's desk that said we're not allowed to give legal advice go away, basically. So something as simple as where do I file this? And he would frequently said, well, we don't have to tell you and got rid of those. I was lucky when I came on the Court of Appeal, in particular, because I followed the appointment of Justice George. And he very much agreed that without access, there is no justice. So that was really kind of the golden age of really pushing on the issues of the fact that many people are excluded, whether by language, whether by their hearing impairments or disabilities or anything else like that. If they're not allowed to get into court. That's a problem. And it's still it's still goes on, obviously. And it's been one of the big rewards of my career to be able to work on some of that stuff. I'll tell you, I know that you'd like to hear one more story. One was that when I was working on all those committees of the State Bar and the Supreme Court committee, we tried for years to get a budget line item in the California budget for legal services to fund legal services at the community level. We A proposal of one year and before Governor Schwarzenegger and he didn't sign it. We proposed it the next year. And he didn't sign it. The third year, we changed the title of it to the Sargent Shriver access issue. And we always believed that Maria Shriver probably had a little f, little influence on the governor because he signed it. And it was the first time in California had ever actually funded legal services at the at the level. And it's been a line item ever since. And I think we're somewhere north of 4000 for Excuse me $400 million. It's been the same spent on legal services. So I'm very proud result.
Jeff Lewis 55:46
Let me let me ask you a related question. When I first practice started practicing law 26 years ago, when I showed up in a courtroom, anywhere I went, there was always a court reporter. last 510 years, there has not been court reporters and civil departments. And this past month in LA, they just announced that in family law, probate, writs and receivers and the department's in handle restraining orders for domestic violence. None of those are going to have court reporters anymore. And the presiding justice for LA announced that it's, it's not a problem of compensation. There's just not enough court reporters out there to show up and do the work. And I wonder if you had any thoughts from your years on the bench about this court reporting crisis, and access to justice and where this is going to end up?
James Lambden 56:30
Well, it's interesting, because when I came on the bench in the late 80s, everybody was all excited about the possibility of electronic records. And we actually my first courtroom had been outfitted with recording devices and cameras. Nobody ever really thought about the question, is the Court of Appeal? Are they going to watch the film? Or are you going to transcribe it? And if you're going to transcribe it, that's a court report. So rapidly, everybody realized that court reporters, I used to prefer to call them word processing technicians or something or communication directors, something like that, because they did way more than simply transcribing good example would be the death question again. My court reporter was the first one in Alameda County to have the real time reporting screen on her computer. So I got all the deficits, because they can come in and they can read what was going on on the screen. So the technology has improved, but you still need someone to do the work. So I think our reporters, now I still get a lot of them, even though my calls are adroit at running the equipment and figuring out how to make sure that everybody's on the Zoom call and that sort of stuff. A lot of the work that I do know, in arbitrations, I have court reporters out of state, it's similar also with interpreters. We get a lot of out of state and interpreters, because they're all over the place. So that's another good way to wrap up the comment I made earlier about how there is a paradigm change. We haven't really felt it yet. But remote access is really changing the landscape in a good way. I think. And it's been a long time since I was trying to argue in front of the judicial council to say that we should allow video arraignments rather than putting the poor guys on a bus at 3am and driving them across San Diego County for four hours, so that they can stand up and say not guilty. So looking back over my career to when we were having arguments about whether or not that was a good idea, everybody thinks it's a good idea. And the clients think it's a good idea in civil cases. And once that happens, things change. Very quickly.
Tim Kowal 58:56
I think I love your your comments on that. Earlier in the discussion, you you mentioned how you saw yourself as a process judge, and you saw that one of the important roles of a judge is to afford a fair process to lead against and I think that really does dovetails exactly with your work on access to justice, because it's about affording an opportunity to everyone in our state and our opportunity to be part of that process, whatever the outcome is, that's going to be dictated by the law and sometimes forces out, you know, beyond beyond the road that you're wearing. But but your job is to is to afford that process. And and it's hard to do that if not everyone has access to it. So I know you've mentioned that access to justice is your one exception to not being ideological about things and I think that is a worthy exception to allow. And I thank you for your time justice Landon. Although I do you have to ask to Yes, you do indulgence and just a few more minutes so that we can run a very quick lightning round today to ask. Jeff has got some some doozies to ask you for the benefit of our listeners. Those who have come to expect. This from our show,
James Lambden 1:00:01
is there a buzzer or something that I have to press?
Tim Kowal 1:00:05
You have to wait until Jeff finishes the question before giving your answer that made me hard. A little, a little
Jeff Lewis 1:00:11
twist on this. You know, most of our guests are pellet nerds and have strong opinions about fonts and spacing, we're not going to be asking you what you prefer to use in terms of when you write. But we're going to be asking you what you prefer to see when you're on the bench or as a neutral in terms of making something the most readable or persuasive. So a little twist on the lightning round. So here we go. Do you have a preference regarding fonts, like century school, book, Garamond, or anything else? When you're reading a brief,
James Lambden 1:00:39
I use Times New Roman. And there's something about that that's a little classic to me. And I liked that. The main thing is to make it big enough for me to see, you know, the court rules take care of that. And the pate, the word counts takes care of that. And well to in my career, I've seen every trick in the book to get extra extra words in and you've already heard how I feel about writing too much. So keep it keep it short. Keep it going and see
Tim Kowal 1:01:07
and, and don't skimp on the on the font size.
James Lambden 1:01:11
Yeah, yeah. Well, I should mention too, if you're able to do hyperlinks, we love them. And more and more people are doing.
Jeff Lewis 1:01:20
Yeah, that was my next question. Actually briefs with either hyperlinks to the record or to cases, if you find it helpful or distracting,
James Lambden 1:01:27
absolutely helpful. You know, older judges and justices have a rep for VA not particularly technological. Those of us who are bought into it, we love it, it makes it much more much easier to work on.
Jeff Lewis 1:01:42
All right, fantastic. And then in opening brief, oftentimes, there's an introduction or a summary of argument, when you were on the bench. Did you prefer that there'll be citations to every statement in that argument? Or in that summary of argument? Or is it okay to kind of skip the citations in that summary,
James Lambden 1:01:59
not in the introduction, the introduction should be your elevator speech. And we've talked about that. And I like to have the elevator speech at the beginning, roll all the way back to the concluding paragraph. So the citations go in the middle, but tell me what your problem is about front. When I was on the trial bench, I used to tell people to use the ass backwards system, write the order. First, write the order that you want me to make for you make your argument don't jump right in on the argument, because you need to know what you're asking for your start.
Tim Kowal 1:02:33
I think that's great advice.
Jeff Lewis 1:02:35
All right. And then final question of a lightning round when you were reading briefs on the bench in terms of main arguments, all capital letters or initial capitals or sentence sentence case? Did you have a preference in terms of your eyes or what made it more readable?
James Lambden 1:02:50
Well, you know, the points and authorities aspect where the point is made, I think any sort of emphasis on the point and making sure that it's short, whether you underline it, or make it bold, maybe bold is going a little too far, I tell the sizing would definitely be going too far, because it's a little harder to read italics. But make those points stick out. I would also mention that I'm a big fan of bullet points. And I think I think most of my colleagues are some might be annoyed in a brief, but in the kind of recent I get in my work now I like bullet points a lot. So if you can think of them in terms of being bullets that are a little bigger than have stories, that's fine.
Jeff Lewis 1:03:32
And how about in terms of readability, either while you're on the bench or today in private practice to spaces or one after a period?
James Lambden 1:03:42
I go with two. But I think that maybe is a little bit more readable. You know, obviously, we used to have arguments about that there are no rules for commerce, but trying to make your sentences, assemble your sentences will add a lot of content. Because if you got a lot of comments, it probably means you got a lot of clauses, and a lot of clauses is not a good thing. Sentences shouldn't be direct. And paragraphs. paragraphs should start with a topic, fill in the examples and end with a conclusion and people kind of lose that. Everybody knows string sights are not necessarily good. Yeah, you're not gonna want to do those. You know what we one thing we enjoyed on the bench when we were able to bring our computers up to is to pull it, pull a case out of the middle of the string side, mask them about it. So once again, keep it short and keep it to the point.
Jeff Lewis 1:04:32
Yeah, you know, my staff knows I don't really know how to use commas. I think I'm a pretty good writer, but I don't know how to use commas. So generally when I'm editing briefs, I just rip to shreds any sentences that have commas. Just
James Lambden 1:04:44
recommend I'd recommend that book. You've probably heard it's called each shoots and leaves.
Jeff Lewis 1:04:48
Yeah. Right. All right. Well, you have survived our very first justice edition of lightning round. So congratulations and yeah, well done.
James Lambden 1:04:59
Well So I appreciate you inviting me and I hope you'll have the again, I've got obviously got a lot of opinions about, about the work that I've done in the past and what I'm doing now.
Jeff Lewis 1:05:09
Oh, we're gonna invite you back to talk about the cases where unpublished decisions were transformed or cited into published decision. So
James Lambden 1:05:19
we do prepare by having my footnote from the month chars decision sort of summarizing, but justice Lucas sin, which is kind of well, anything goes, you know, a fair result, which I think is interesting when you're talking about arbitration.
Tim Kowal 1:05:35
Well, we always love a good example of how to get around the rule against citing unpublished opinions. So so that will go in the annals. So that that wraps up this episode. And again, we want to thank our sponsor casetext for sponsoring the podcast each week when we publish the episode, we include show notes with cases that we discuss and we use case text for those links. listeners of the podcast can find a 25% discount available to them if they sign up to case text at casetext.com/CALP,
Jeff Lewis 1:06:02
and if you have suggestions for future episodes, please email us at info at cow podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 1:06:12
See you next time. Thank you very much.
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Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at 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.
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Just for fun, here is one of my favorite Norm McDonald jokes (RIP).
Watch the clip here.
This is a clip from episode 30 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.
Most findings in family court are left to the judge’s discretion. But not a custody order—at least, not once the judge has found that the parent has engaged in domestic violence. Even though the father’s only “domestic violence” was ringing up the mother’s employer, the court in Hutchins v. Hutchins (D4d1 Sept. 13, 2022 no. D078855) 2022 WL 4138735 (nonpub. opn.) held that the 50/50 custody order could not stand, because the family court failed to make written findings on the seven statutory factors. (Fam. Code, § 3044(b)(2).)
Here, the father kept calling the mother’s supervisors at the U.S. Navy, making allegations about family finances and emotional abuse. There was no physical abuse, but the family court found it was harassing and issued an domestic violence restraining order.
Eventually, the calls stopped. The court found that the father was not jeopardizing the mother’s safety. And so the restraining order was lifted.
When it came time for a custody award, the family court reiterated that the father had committed domestic violence in the past—the manipulative phone calls to the mother’s employer—but that the presumption under Family Code section 3044 was rebutted and so in the best interests of the children awarded custody 50/50. But the court did not make any of the written findings required under section 3044(b)(2).
By making a finding that the father had committed domestic violence, the trial court triggered the mandatory rebuttable presumption under section 3044 that awarding any child custody to the father would not be in the child’s best interests. (Ellis v. Lyons (2016) 2 Cal.App.5th 404, 415.)
Here, the family court acknowledged the presumption, and concluded that it was “rebutted.” But this was not enough. The trial court must undertake two steps before concluding that the presumption of section 3044 has been overcome.
First, the court must find that the parent who has perpetrated the domestic violence has demonstrated that it “is in the best interest of the child pursuant to Sections 3011 and 3020” to give the perpetrator sole or shared custody. (Id., subd. (b)(1).)12 The statute specifies that in making the requisite finding regarding the best interests of the children, the court is prohibited from relying on “the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040.” Second, the court must consider each enumerated factor contained in section 3044, subdivision (b)(2) and “find that the factors in subdivision (b), on balance,” weigh in favor of granting some amount of custody to the perpetrator in terms of protecting the child's health, safety, and welfare. (§ 3044, subd. (b).)
Importantly, section 3044 mandates that the trial court “make specific findings on each of the factors in subdivision (b).” (§ 3044, subd. (f)(1).) “If the court determines that the presumption ... has been overcome, the court shall state its reasons in writing or on the record as to why” the two-step requirement has been met. (Id., subd. (f)(2), italics added.) Thus, “[t]he statement of reasons must address all of the factors outlined in section 3044, subdivision (b). [Citations.]” (Abdelqader, supra, 76 Cal.App.5th at p. 196, italics added.)
(This blog discussed Abdelqader here.)
On appeal, the father argued that the family court’s failure to make the findings under section 3044 was harmless. That is, had the court made the findings, the court would have come to the same result.
The Court of Appeal disagreed. But the court did not point to any record evidence to suggest the section 3044 factors would have come out a different way. Specifically, the required factors under section 3044(b)(2) involve:
(A) whether the parent should complete a batterer's treatment program (but there was no battery here); (B) whether the parent should complete a program of alcohol or drug abuse counseling (but there were no references to substance abuse here); (C) whether the parent should complete a parenting class (but there were no references to inadequate parenting here); (D) whether the parent had satisfied conditions of probation or parole (but the father was not on probation or parole here); (E) whether the parent has complied with a restraining order (here, the father had complied); (F) whether the parent had committed further acts of domestic violence (other than the phone calls, there were no further acts); (G) whether the parent is a restrained person in possession of a firearm (there was no suggestion of that here).
But the court did not analyze prejudicial error of the missing findings by discussing the factors directly. Instead, the Court of Appeal found the missing findings were prejudicial in the abstract—almost as though it is structural error. (But see F.P. v. Monier (2017) 3 Cal.5th 1099 [absence of required findings is not structural error].) Here is how the court analyzed the prejudice of the missing findings:
“The purpose of the rebuttable presumption statute is to move family courts, in making custody determinations, to consider properly and to give heavier weight to the existence of domestic violence.” (Jaime G., at p. 805, italics added, citing Sen. Com. on Judiciary, Analysis of Assem. Bill No. 840 (1999-2000 Reg. Sess.) July 13, 1999.) “Presumptions are used in this context because courts have historically failed to take sufficiently seriously evidence of domestic abuse. [Citation.] [¶] “Without such [pre]sumptions, it has been too easy for courts to ignore evidence of domestic abuse or to assume that it will not happen again. As with the limitations on consideration of the gender of a parent or child, presumptions function to counteract the proven tendency of some courts to make judgments based on ignorance or stereotypes.' ” (Jaime G., at p. 806, quoting Bartlett, Preference, Presumption, Predisposition, and Common Sense: From Traditional Custody Doctrines to the American Law Institute's Family Dissolution Project (2001) 36 Fam. L.Q. 11, 23.)
“By enacting the seven factors in the rebuttable presumption statute, the Legislature created a mandatory checklist for family courts. Mandatory checklists can improve professional decisionmaking for professionals as diverse as surgeons and pilots,” and although such checklists “can seem bothersome to experienced professionals,” the Legislature created a checklist in this context in order “to require family courts to give due weight to the issue of domestic violence.” (*Jaime G., supra*, 25 Cal.App.5th at p. 806, italics added.) In addition, the requirement of written findings or findings otherwise stated on the record was included to facilitate meaningful appellate review grounded in the “policies set forth in the governing law,” which is “essential to the creation of the body of precedent necessary for the system of rebuttable presumptions to produce consistent and predictable results.” (Ibid.)
The court went on to note that the lack of findings frustrates appellate review.
The issues the court considered in finding the omission of the required findings resulted in prejudice these were the same considerations the Supreme Court took up, and rejected, in F.P. v. Monier (2017) 3 Cal.5th 1099. Contrary to Hutchins here, the Supreme Court concluded that a trial court’s omission of required findings was not reversible per se, and that the omission would be reversible only if a different likely would have resulted. In the factual circumstances present in the opinion, that just does not appear to be the case here.
That seems particularly the case where the domestic violence is not based on physical violence or even threats of physical violence. True, the cases hold that “domestic violence” does not require actual physical violence, or even threats, and that abuse is enough, which can include merely disturbing the peace of another. (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 852-853.) But at some point, that definition of “violence” gets rather vague and unlawyerly. And as relevant here, a finding of nonviolent harassment—by way of making whiny phone calls to the other spouse’s employer—does not have any obvious bearing on custody.
On remand, I suspect the family court will simply make the missing findings to support to same 50/50 custody result.
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.
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