You really ought to follow a court’s pre-trial order, but say you overlook something, like a witness list. The judge came down hard on the forgetful plaintiff in Harber v. Williams (D4d2 Sept. 12, 2022 No. E077036) ___ Cal.Rptr.3d ___, 2022 WL 4129702. Harber didn’t have any witnesses other than herself, but the judge prevented her from testifying, which had the effect of a terminating sanction.
Fortunately for Harbert, the Court of Appeal reversed. In a partially published opinion, the court rejected the Harber’s “maximalist” view that a trial court could never deny a party’s right to present evidence and testify. But the court nonetheless concluded that, here, the trial court had abused its discretion.
“Courts have the inherent authority to dismiss a case as a sanction. [Citation.]” (Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 1271; see also Code Civ. Proc., §§ 128, subd. (a)(4), 581, subd. (m).)
But “dismissal is always a drastic remedy to be employed only in the rarest of circumstances.” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 764.)
“[T]here are two important inquiries to be made by trial courts when determining whether a plaintiff's actions warrant a dismissal with prejudice. First, the court must discern whether the plaintiff's pattern of conduct was so ‘severe [and] deliberate’ as to constitute extreme circumstances. [Citation.] Second, the court must look to see whether alternatives less severe than dismissal are available. The ‘sound exercise of discretion requires the judge to consider and use lesser sanctions’ unless the court's authority cannot possibly be otherwise vindicated. [Citation.]” (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 917.)
The court noted that Harber’s attorney was most at fault for the failure to serve the witness list, and that neglect was not severe or extreme, and there was no indication that it was a tactic. The court also noted that the failure could have been remedied by a trial continuance.
The most interesting of the factors the court identified was the fact that the pre-trial order indicated a “one size fits all” sanction when it stated that “you will not be permitted to call any witnesses not included in the witness statement.” This, the appellate court concluded, indicated the trial court had predetermined it would not consider any lesser sanctions.
“In other words,” the court went on, “the trial court announced, up front, that it would not exercise any discretion. The inherent power to dismiss, however, is a discretionary power. “A trial court's failure to exercise discretion is itself an abuse of discretion. [Citation.]” (Fadeeff v. State Farm General Insurance Co. (2020) 50 Cal.App.5th 94, 104.)”
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.
“Something is very wrong with this picture.” This is how the Court of Appeal recently concluded a CEQA case—with finger pointed in CEQA’s direction. Peter Prows, an environmental attorney who handles a lot of CEQA cases, runs down the good, the bad, and the ugly of CEQA. Peter talks with co-hosts Tim Kowal and Jeff Lewis about Tiburon Open Space Comm. v. Cnty. of Marin (May 12, 2022, A159860), which rejected a neighborhood group’s efforts to stymie a development project.
Only law nerds are interested in CEQA? Think again: Former Rolling Stone writer Matt Taibbi recently penned an article about how CEQA is thwarting California’s ability to provide housing. We discuss that, too.
Peter also supplies Tim’s personal favorite new quote, via Justice Brennan: “See how easy it is to be a City Attorney?… If all else fails, merely amend the regulation and start over again.” (San Diego Gas & Elec. Co. v. City of San Diego (1981) 450 U.S. 621, 655 n.22 (Brennan, J., dissenting).)
Also: The government gets anti-SLAPP protection for free speech? (See Vargas v. City of Salinas (2009) 46 Cal.4th 1.) Come on, SCOCA.
Finally, on the Lightning Round: A persuasive case for two spaces after a period?
Peter Prows’s biography, LinkedIn profile, and Twitter feed.
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:
Peter Prows 0:03
That was an observation that Justice Brennan made in one of the cases I sent you in a dissenting opinion. But yeah, sometimes you can lose the battle and still win the war. That's how easy it is to be a city attorney.
Announcer 0:12
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Jeff Lewis 0:26
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:28
And I'm Tim Kowal. While this podcast is a resource for trial and appellate attorneys, Jeff and I are both appellate specialists but we split our time about evenly between trial and appellate courts and we tried to give our listeners in each episode some news and perspectives they can use in their practice.
Jeff Lewis 0:44
And a quick announcement this podcast is sponsored by casetext. casetext is 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 endorsed the service listeners of our podcast will receive a 25% lifetime discount available if they sign up a casetext.com/CALP that's casetext.com/calp.
Tim Kowal 1:08
All right, Jeff, and today we are pleased to welcome Peter Prowse to the show. Jeff, I was telling you that what we really needed to entice listeners to come to the show was a really juicy juicy Sequa episode about Seattle environmental law. And so Peter Prowse fits the bill Peter is a Council's public agencies private clients and sovereigns on all manner of water, land use and environmental issues, including neighbor disputes, development permit issues and all the way up to national bet the company federal litigation. Peter is experienced in California's water rights and quality laws, the Clean Water Act and wetlands regulation, the Coastal Act Sequa, of course, and NEPA and the public trust doctrine, real property and the Law of the Sea. He litigates in state and federal trial and appellate courts, including the California Supreme Court and the United States Supreme Court, Peter has been a law clerk to the honorable Charles Brower in his private international arbitration practice in London. And he was a law clerk to the honorable Abdul Koroma of Sierra Leone at the International Court of Justice in the Hague. Peter, welcome to the podcast. Thanks for joining us.
Peter Prows 2:14
Thanks so much for having me, Tim and Jeff.
Tim Kowal 2:16
All right. Well, I have to start at that last one. First, you were a law clerk in the Hague, what is that, like?
Peter Prows 2:21
The Supreme Court of the world? No, the International Court of Justice is the principal judicial organ of the United Nations. It hears and resolves disputes between member states of the United Nations they typically get there. Well, they all they all have to get there by consent of the parties. And that consent typically comes in the way of dispute resolution provisions and in treaties. So these days, a lot of the cases the International Court of Justice hears our maritime boundary disputes, because the the UN Convention for the law, the sea has a dispute resolution provision that provides consent, least in some cases for the International Court of Justice. And so several of the cases that I worked on, while I was was there were maritime boundary disputes. We also heard a large dispute under the UN Genocide Convention between way involving Serbia. So it was it was an exciting experience. You know, I think the listeners of your podcast would, would find it rather enlightening to listen to oral argument at the International Court of Justice. The council submits their their oral remarks ahead of time and reads from a script. That's oral arguments, the judges, when they ask questions, will submit them in writing to the council and give them a couple of weeks to get back to the court on their responses. There's no sort of live q&a
Tim Kowal 3:42
of the extreme version of tentative opinions.
Peter Prows 3:45
Yeah, well, it's, you know, it's sort of out of respect for the fact that the parties are sovereign countries, and that, you know, the mere Council mere attorneys don't have the authority to bind bind a country to their responses sort of on the spot. That's the theory anyway, but it leads to fairly dry oral arguments that actually sometimes go on for multiple weeks. There'll be it's it's less of an argument and more of a more of a presentation that will go on for. It can be weeks.
Tim Kowal 4:14
Yeah, multi day or multi week presentation. So Peter, you're practices in San Francisco, you have clerked at The Hague, you've clerked in London, you are versed in the Law of the Sea. Tell us a little bit about your practice and how all those dots connect.
Peter Prows 4:29
Well, in law school, I didn't really know what kind of law I wanted to practice. I worked at all of the above all of the above. You know, I worked I went to law school in New York, I had the big firm summer associate experience in New York. I'd done arbitration practice, which I could have gone back to after working in The Hague, but I'd had the opportunity while I was in New York to work for a small island country, Palau at the United Nations and I had a kind of a menu of issue issues that I could have helped advise them on. And the ambassador at the time offered me Law of the Sea. And I thought, well, you know, that's actually an issue that a small island country might find useful to know something about. So I, I learned as much as I could, and ended up negotiating fisheries agreements and maritime boundary issues at the UN and working with, you know, scientists and geologists and biologists. And when I was coming to the end of my my time clerking, and I was reflecting on what I really wanted to practice, there was I was, I came to the realization that I really loved the environmental stuff. You know, I learned something new in every case, I've worked with people who are smarter than me all the time. And I got to meet scientists and really engage in public policy and do public law work in a way that, you know, I'd never be able to do going to sort of a large commercial litigation practice back in New York.
Tim Kowal 5:56
So you came to it with a with an interest, pre existing interest in policy international issues. Yep. Yeah. Okay. And here's a stupid question, Law of the Sea and maritime law, same thing, or different things, different things.
Peter Prows 6:10
So far, as I can tell, I don't actually know anything about maritime law, maritime law is sort of love of ships and marine commerce. And so you know, you have sailors who slip and fall on a vessel. It's like tort law on the water. Yeah. And it's an old form of law. It's actually one of those one of those creatures of federal common law that we're told don't exist, but actually do exist in some realms. And maritime law is one of them. But it's, but I know nothing about it. Law of the Sea really is where one country ends and the high seas begins, or where another country begins, and what what each country's rights and responsibilities are in the different areas of marine jurisdiction.
Tim Kowal 6:56
I go off, when I go off on my friend's boat, you can tell me where we can start gambling and doing other things that are otherwise illicit.
Peter Prows 7:04
You might not like the answers, but yes.
Tim Kowal 7:07
Okay. All right. Let's see, would you rather be in state court or federal court? You practice everywhere? Where's that you? What are the pros and cons? Were Would you rather be?
Peter Prows 7:16
I think, I mean, I am comfortable in both. If if it's a state court I've been in before, then I probably will say state court. If it's one I haven't been in before then then federal court, Federal Court practice, at least in my experience in the Northern District in the eastern district here in California, is fairly similar, you know, you don't have the local local rules. You filing is all online. So there's, there's no real mystery about how to get something before a judge and get it filed. Whereas in some state courts, it can be can be a real trial and error, to figure out even how to get something filed to get it before the judge, which judge do you end up before? Once you've gone through, you know, having a case in state court, and you kind of figure out how it actually works, then, you know, it tends to be a smaller, more collegial practice. I think when when you know, the judges, and maybe you have some experience with the court clerks and and it tends to go fairly smoothly. So yeah, so if I've been in that court before, I'll say state court, if not, then all else being equal federal court,
Tim Kowal 8:16
you have a good war story, you can share something that was formative to your practice, maybe something that confirmed that I'm in the right, the right area of law or something, or maybe a story that told you I gotta get far, far away from this kind of situation?
Peter Prows 8:30
Well, it you know, I was reflecting on that. And I, it actually involves a criminal case I was involved with once I don't do a whole lot of criminal practice. But I've had a few matters where, particularly farmer clients have gotten themselves into trouble. It's harder being a farmer in California than you might think. But I had a client who was an oyster farmer, and there's a there's a statute in the fishing game code that says, you know, you got to fill out a form each year that tells the state where you got your, you know, your oyster bags, and he had oyster bags and three places. And he listed all three on one form. And the warden I guess, thought he should have filled that three forms instead of one form. In any violation, the
Tim Kowal 9:10
fishing game code is a misdemeanor. So you got criminally prosecuted for this or filling out a form the wrong way. Yeah. It's kind of like talking with the with the FBI, you better not make even an innocent misstatement.
Peter Prows 9:22
So I, you know, my comparative advantage, shall we say, is not in in the criminal courtroom. But I thought, well, you know what, I'm not actually sure this is a crime. So I bet the DA here has never seen a demurrer in a in a criminal case before but it turns out, you can actually demurrer to a misdemeanor complaint. And so I filed a demur, and the judge overruled the demurrer, but then took me in the DA back into chambers, and I'd worked on a fairly high profile case. This isn't Marin County a few years prior, and was representing another Oyster Company and litigation against the National Park Service and when Marion County had gotten involved in that suit. And our judge had had worked in the county counsel's office at the time. And she, you know, after she'd over, she'd ruled against me, she turns to the DA and says, you know who this guy is? He's the oyster lawyer, you don't want to go up against him, do you? And let's just say the case, promptly settled quite favorably, almost immediately thereafter. So sometimes even when you don't feel totally comfortable in one, one area of practice, if you can bring whatever comparative advantage you do have to it, as well as whatever reputation you've you've garnered to that point, you
Tim Kowal 10:29
can thrive. And I feel remiss for not introducing you as the oyster lawyer. All right, well, let's move on from oysters to Sequa. We've not had an attorney on the show to talk about Sequa. before. And I wonder if you tell tell our audience a little something about your work in that area. How much of your work is Sequa? What who are your typical clients? Are they developers? Are they municipalities? Are they the NIMBYs? Who are they?
Peter Prows 10:54
Well, I'd say almost all of my cases involve Sequa. in one form or another. I represent developers, I represent public agencies, water agencies, and I've even represented petitioners who have challenged projects. But anytime you need a discretionary permit from a public agency in California, Sequa is going to be something that you have to think about public agencies when they approve a project have to do Sequa unless some exemption applies. And those exemptions are litigated up, down and sideways. But sequences involved in almost all of an almost every matter I am engaged with,
Jeff Lewis 11:30
you know, many, many land developers and public agencies grumble about how long it takes to get projects past Sequa to Sequa, in your opinion, unduly slow projects down and and are there any efforts to reform Sequa and make it a little easier to navigate?
Peter Prows 11:46
Secret itself says that the environmental review process should be done within a year. In my experience, that almost never that goal is almost never met, though I'm involved in a project now, where the permit application went in in March. And we're on track to have EIR certified in November. So I'm trying to break a new record here. And we'll see. We'll see how it goes. And we'll see if we get sued on the project later. Knock on wood.
Tim Kowal 12:13
So what is the effect of, of this goal of completing the litigation within a year is due Sequa? I think sequel actions get calendar preference, is that right?
Peter Prows 12:22
They do get calendar preference. Yep. The you know, that really, until the Sequa issues are resolved. It's hard to proceed with the project. And you know, those I think those goals are really intended to recognize that this process isn't supposed to take forever, there is supposed to be finality to it. And you know, that's part of the reason why there are such short statutes of limitations and Sequa actions, sometimes the shortest 30 or 35 days, right, which the California Supreme Court has been pretty strict in in applying. So yeah, that we are supposed to get through Sequa and get past Sequa. It's not supposed to be the be all and end all of the land use entitlement process, though. I have other projects where it's taken five years or more. And then there are lawsuits and then, you know, those can drag on for a while as well. So yeah, the legislature in recent years has enacted a number of, of bills to streamline the sequel process or exempt certain projects from it entirely.
Tim Kowal 13:17
What types of reforms are are on the table, a lot of them involve
Peter Prows 13:21
infill projects in urban areas where the project meets the pre existing general plan and zoning. So essentially, if you if you if you already qualify under the city's requirements, then there really shouldn't be further SQL review that these these projects qualify for streamlined ministerial is the word that the statutes use approval. And when this would mean
Tim Kowal 13:45
that that these infill projects would not have to go through the entire panoply of Sequa procedures.
Peter Prows 13:52
That's That's right. They they actually are exempt from Sequa entirely. And there are certain concessions in those in that legislation to requiring certain percentage of affordable housing to be built as part of the project and often project labor agreements, meaning you've got to you got to pay union wages for those kinds of jobs. And so there's some question about how economic those those projects are once once those once those components are built into them. But if if you don't have to do SQL and you can get through the process in a reasonable period of time, that's a that's a major incentive for developers to try to find a way to fit in those boxes
Tim Kowal 14:26
are a large number of the sequel cases. Do they fit into that criteria of these infill projects, they're starting to
Peter Prows 14:33
I think the, you know, these these pieces of legislation that are really starting to be used more these days are maybe only four or five years old, and they're they're just starting to get into the litigation mode now over over approval approvals that have been given. So you know, we will we will see where the courts go with this legislation. I mean, I suspect we're gonna see more and more carve outs from Sequa as I
Jeff Lewis 14:58
had I had a sequel case I I don't do too much. But I had a sequel case where, at the time of filing, it was a very righteous Sequa case. And that about 30 days before trial, Sacramento, amended Sequa to basically exempt the project I was challenging from Sequa. brutal, brutal, those exemptions so they come fast.
Peter Prows 15:19
Well, and, you know, that's one of the one of the challenges to have administrative mandamus practices as any appellate litigation really is, you know, there's got to be prejudicial error. And if, if the law changes underneath, you know, the courts will will tend to apply the law as it exists when they make their decision, not not what it was when you filed your lawsuit.
Jeff Lewis 15:38
Yeah, let me ask you this. I've never been involved in a sequel case that dealt with tribal cultural resource preservation, have you and tell us a little bit about the interaction between those two, I guess, policy goals?
Peter Prows 15:51
Yeah, this is a really interesting area that I've got a couple projects now involving tribal cultural resources, matters. And this all stems out of a legislation, a B 52. That was passed, I don't know the date, maybe five or 10 years ago now that in the sequel process, lead agency, and that's the that's the secret term for the public agency that kind of takes the lead on the secret document, and typically tends to be the agency that's in the lead on approving the project. So if it's a housing project, it's the city or the county, the project is in, has to go to the state and ask, Hey, are there any state recognized tribes that are interested in projects in this area, and then they get a list back from the state and then the the lead agency contacts each of those tribes that are on the list and says, Hey, are you interested in this project, you have concerns about this project? And if any of the tribes come back and say yes, then the the lead agency essentially has to engage in what tantamount to government to government negotiations with that tribe to try to come to an agreement over how to identify and then mitigate whatever tribal cultural resources there might be. So it's really a new category of environmental impact in California, as we come to kind of grapple with the state's history of kind of running roughshod over the native people here,
Jeff Lewis 17:16
what type of interest or resource would be give us some examples of some of the back and forth or the interests? Yeah,
Peter Prows 17:23
you can have, you know, the the kind of most dramatic example is if there is concern about whether there's, you know, tribal burial site there, or tribal village site on the on the project site, and that can raise a whole host of issues of, you know, how to deal with human remains, and how to appropriately respect, you know, the burials there and whether you just kept remains in place or whether they should be transported somewhere else. So those can be the subject of some very sensitive negotiations.
Tim Kowal 17:53
Are there any is there any interplay with the federal constitution, you know, the Article One, Section Eight gives plenary power to the Congress to regulate commerce with the tribes. I don't know if that if it prevents the states from doing this sort of thing, where it where it's giving, giving kind of first right of refusal to certain projects to tribes in the area.
Peter Prows 18:14
You know, I haven't seen that come up. And the federal government has its own separate list of of the tribes that the federal government recognizes, and often the federal lists and the state lists don't don't match. So, you know, I've never seen a case where there might be a conflict between what the state or local government might want to see done with the tribe and what the federal government might have deemed appropriate under under the federal constitution is an interesting question. I haven't seen it come up.
Tim Kowal 18:41
Alright, let's talk about a recent case. This is actually the case that piqued my interest in talking about Sequa its Tiburon, open space community versus County of Marin. It's back in. It was issued in May of this year. 2012. Out of the First District Court of Appeal, just the thumbnail sketch of it is Tiburon. The Tiburon case involved a development project that that was slated due to be built atop a mountain that was overlooking San Francisco Bay, so apparently had just majestic views. There only some 4046 or so suburban single family homes that were slated to be built there that were that the developer wanted to build there. For many years, the permitting attempts have gone on neighboring residents hated the idea, and so they pose the project vigorously. In the course of decades of litigation, the county stipulated to a judgment and ultimately the county took the position that that judgment tied its hands and required it to issue the development permits. The neighbors contested this on appeal and argued that the county's position violated the fundamental principle that a sovereign cannot negotiate its own sovereignty and that by taking the position that its hands were tied, the county basically abused its discretion, delegated its sovereign powers to the developer and in such a in such manner He baited the requirements of Sequa Court of Appeals rejected the argument said no, it the county didn't evaded Sequa obligations. And I wonder if Peter, can you elaborate on that? Did I simplify it too much? And what's what was really at stake here? Because coming up in a minute, I want to read some of there's some interesting quotes that are critical of Sequa. And I wondered if this was, if this was usual, this kind of a run of the mill Sequa. Court of Appeal opinion, what is noteworthy in this case? In your view, Peter?
Peter Prows 20:30
Well, I'll say first of all, this is this is one of the interesting sequel cases, there are a sequence of procedural statute, and there are a million rules and Sequa, both for lead agencies and for petitioners. And so when you got a procedural statute like that, with a lot of tripwires on both sides, you get a lot of court cases that by and large turn on kind of not very interesting procedural rules, at least in my opinion, but this this is a this is a more interesting one, I think, because you get this interesting interplay between these these federal stipulated court judgments, which the the county and the Court of Appeal thought constrained the county's discretion and required the county to approve, I think it was 47 houses on a along a ridge line. And, you know, the usual rule under Sequa, that, you know, lead agencies ought to evaluate the environmental impacts up down and sideways of a project like this. So but I, you know, I think the Court of Appeal got this one, right, for the kind of simple reason that Sequa, as I mentioned earlier, applies to discretionary decisions. And here, you know, I don't think there was any suggestion that there was a collusive stipulated judgment here. In fact, the county opposed the underlying federal court case pretty vigorously when it was filed. But there nevertheless was a federal court judgment that required the county to approve this project. And so there really, there really was not much to be done under Sequa. There was a EIR done, I guess. But, you know, in terms of what the county could or might have been able to do differently as a result of that environmental review, its hands were tied and had to approve this project. So, you know, I think the court got this one, right.
Tim Kowal 22:08
Yeah, there was, as I mentioned, there were a couple of passages in the opinion that I thought were quite vivid. And I want to read a couple of them to the audience. The first one is provide just kind of a nice thumbnail sketch of what Sequa is, and what its purpose is. The court quotes the late Presiding Justice David sills, who was my former boss, when I was an external Court of Appeal down here in Santa Ana, that Sequa, quote, provides protections to expose elected decision makers to the political consequences of any decision to certify an EIR, there is a sort of grand design and Sequa projects, which significantly affect the environment can go forward, but only after the elected decision makers have their noses rubbed in those environmental effects and vote to go forward anyway, and quote, what do you think, Peter? Is that? Is that a fair? If pithy summation of what sequel is,
Peter Prows 23:01
I think it's a great summation. It I'm not sure quite how much it applies in this case. But that's the idea. It's, it's, you know, it's it's to kind of educate the decision makers in the public about every aspect of a project and secret doesn't constrain the lead agencies actual decision making, it just puts all the cards on the table. And if they want to nevertheless, proceed with the project. That's okay. SQL doesn't doesn't stop a lead agency from doing that it doesn't doesn't constrain their discretion, they've just got to jump through the 1000 procedural hurdles to get to that approval. And then, you know, decision makers, they live with the consequences of their decision that that's politics, and you know, they can, if they're proud of the decision they make, they can they can run on it, if they want to hide from it, well, then their, you know, their opponents can can highlight it for the public. But that's, you know, that's democracy in action. That's, that's the theory. In this case, you know, the county had to approve this project in the sense that it had to agree to a settlement. And so there was at least some public airing of what the project would be and some opportunity I imagined for the public to weigh in on that point. But there wasn't the usual opportunity to rub the decision makers noses in the environmental consequences of the decision. And what the petitioners probably should have done here was tried to intervene in the federal case, the time that settlement was approved. And if they, you know, wanted to ask the federal court to try to build into that settlement to, you know, an oh, by the way, there should still be a secret process that county should have to go through and if they want an out of from approving the project at that point at the end of that process, then build that into the stipulated judgment. But, you know, once once that judgment was entered, the county's hands really retired otherwise, it'd be in contempt if you didn't approve this project.
Tim Kowal 24:50
All right. And then here is the the conclusion of the court's opinion and it It's entitled some concluding observations. And so when I saw Those words when I first scan this case, I knew that we that we're going to have to talk about this. So here's what caught my attention in the first place. The in the concluding observations, the court makes reference to justice Chin's opinion in the, in the California Supreme Court's opinion Center for Biological Diversity versus Department of Fish and Wildlife. And, in the opinion states that Justice chin had concluded with a warning worthy of Cassandra, quote, we have caution that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic or recreational development and advancement. And then the opinion goes on. And it's concluding observations that every member of the Supreme Court agreed that that quote, Sequa is not intended as a population control measure and quote, and then finally, delay can become its own reward for Project opponents. This is a recipe for paralysis, but Sequa is not meant to cause paralysis. And then, and then notes that this case vindicates some of the worst of justice Chin's fears, and SQL was meant to serve noble purposes, but it can be manipulated to be a formidable tool of obstruction, particularly against proposed projects that will increase housing density, something is very wrong with this picture is how the court concludes it. Peter, is this tone representative? You think of how a lot of Court of Appeal justices view Sequa? This seems extraordinarily critical and seems to be kind of dipping a toe it's, you know, sometimes you see these opinions concluding we urge the legislator to take this up is this kind of an implicit call that the legislature needs to do something about Sequa?
Peter Prows 26:40
I think there's been a real change in tone and a number of SQL cases by the Court of Appeal in in recent years. And I've seen a several cases where, you know, in the 60s 70s 80s 90s, you know, you see the first half of the legal discussion being all about SQL was meant to protect the environment. And now you see a lot more of this kind of language that you know, SQL is not meant to be the end all be all, and there are other values that are important and, you know, it housing costs being what they are in California and essentially the number one concern of of Californians, it's not surprising that the courts are maybe taking a more critical eye towards what are we really what are we really doing here?
Tim Kowal 27:23
Yeah, there was also around the same time that the Tiburon opinion came down there was this article written by Matt Taibbi about Sequa and Matt Taibbi is a he's a former Rolling Stone essayist or writer. Now he's got his own blog at substack. But he wrote an article called The lawyers who ate California, and it talks about various types of what he sees to be over regulation. But here's what he wrote about Sequa. Specifically, this is Matt Taibbi multiple other businesses that multiple other business figures cited Sequa the California Environmental Quality Act, which accomplished good things at its inception in 1970, but has since seen exponential to cancerous growth, making home construction massively more expensive, and pushing companies to relocate workforces to locales with more available housing. It was intended to modernize residential building, but Sequa to sum has instead become a backdoor subsidy to owners of the state's stagnant pool of mid century homes, mandating so many lengthy reviews and conditions that petitioners can NIMBY projects and neighborhood projects to death and kill even environmentally friendly projects like back bike paths and public transport. Even progressives have begun to feel empowered to openly hate on this statute. Democratic State Senator Scott wiener called it, quote the law that swallowed California and quote, so I wondered if if you are seeing these kinds of sentiments again, Sequa, you would think is, you know, all environmentalists would would love Sequa because it's it's meant to provide environmentally friendly neighborhoods, but it's, it can be used to, to obstruct just that objective.
Peter Prows 29:05
It can cost hundreds of 1000s of dollars for for for any kind of developer to to fund any IR not even, you know, counting the the mitigation measures that the EIR measure will require, you know, I, I think part of the problem is that, you know, local agencies, there's sort of no end to the process, you know, they have to do sequel when they amend their general plans or amend their zoning. And then, and then at the individual project level, developers have to do Sequa all over again, and it would make much more sense I think, if you if local agencies when they were doing their large planning documents, we went through sequel once we we all decide here's where housing is going to go, here's where the transit is going to go, here's the open space is going to be and then let people essentially buy right build in the places that are designated in the general plan to build and not build where, where the, you know, overriding planning documents say we shouldn't be building and not have to go through multiple sequence again and again and again. And I think that's actually a lot of the spirit of Senator wieners legislation. And a lot of the legislation we talked about earlier kind of comes from him that that essentially if you if you qualify, under the General Plan and the zoning, then you get ministerial approval, this matter has already been studied and resolved and we don't need to study it again, just because now we're at the individual project level.
Tim Kowal 30:25
Do you see? Do you see these Sequa issues and arguments as having a certain political bent to them the Tiburon case and involved a development involving single family homes, but a lot of SQL litigation is or Sequa based objections are our neighborhood objections to high density developments. And so I wonder if, you know, sometimes you could see that as being, you know, either side of the political spectrum, there's some left of center who would like to see more high density built, and then more more conservative type or just unnecessarily political concern. I guess anyone who owns a home would would like to see their property values maintain or increase. So is there a political angle to this? Or does everyone agree that reform needs to be made here?
Peter Prows 31:06
Well, I you know, I don't I don't know what everybody thinks. But there are, you know, there's this there's this classic clash these days in California between the NIMBYs in the NIMBYs the not in my backyard and the yes, in my backyard groups. And, you know, when you get down to local politics, all politics is local. And sometimes, you know, people who might identify as, as progressives, like in Marin County, it's a it's a very liberal voting anyway, community. But you know, here we're talking about 47 homes and the Tiburon case that engendered years and years and years of litigation and multiple, you know, multiple lawsuits. And so I don't know whether it's, you know, whether there's a difference between single family homes and multifamily housing, I've certainly dealt with litigation and entitlement work over both kinds of projects, and they have different issues, single family homes, often, you know, they require they require more development footprint. And when you're building in more green space or open space, then then you can have greater impacts to species to wetlands, than you would if the development was concentrated, especially this concentrated in infill, you know, existing neighborhoods. But you know, I don't I don't know that there's a traditional political bent that these groups fall into, it's very local.
Tim Kowal 32:19
Is there more energy in favor of building high density than the lower density? And I guess my energy? I mean, I would guess that there's, there's more, I'll tell you, from my perspective, you know, I mean, I've got young children, I need to I need a home with a yard, you know, living on top of the of a barber shop, or a liquor store is not going to cut it for me. So the high density thing doesn't, doesn't excite me when I hear about high density in my neighborhood, or my community. I want to I want to see more, more single family homes, but we're pretty built out. But I wonder if, if there are developers who haven't we still have a lot of open space in California. But I don't know that I hear about too many single family developments going on. It's all all the all the talk and energy seems to be in infill high density development.
Peter Prows 33:04
Yeah, I think, I mean, I've got a project right now in Vacaville, where there's a mix, you know, we've got single family homes, and then you've got multifamily apartment and condo buildings. And, you know, it really i It really comes down to, you know, what the developer thinks the market will support. And there is there is a range of demand for housing, depending on where people are in their lives, I think and, you know, when I was in my 20s, living in an apartment, having an affordable apartment to live in, in New York, or you know, even out here in the Bay Area was, you know, something I needed. And there is a large group of people that that need that kind of housing. But that doesn't work for everybody, obviously. And you know, there should be there should be supply of housing that meets everybody's needs
Jeff Lewis 33:48
a Peter up, I think our audience would be disappointed if I didn't slip in at least one anti slap question. You pointed me out to the fact that sometimes anti slap motions can be brought by public agencies against writ petitioners. And he pointed me to the Vargas versus City of Salinas case which I had not read before. It's really interesting that when a citizen complains about something the government is doing, the government can procedurally attack the complaint as an abridgment of the of the government's first amendment rights. And I want to ask, does it make sense to you that the government is a person protected by the First Amendment within the meaning of the anti slap law?
Peter Prows 34:27
Well, the California Supreme Court has said so but I think it makes no sense. You know, the First Amendment was designed as a limitation on the government's ability to restrict the speech of individuals, particularly individuals who complain about the government activity and to protect petitioning activity by by individuals against the government. And I've, you know, I've seen cases where I've brought petitions against public agencies, and they've responded with anti slap motions, which as you both know, are very powerful tools, oftentimes quite righteous but can really make it hard for a petition Shinar to ever see their day in court at least in a timely way. Because they they bring the proceedings to a halt. By and large, they're subject to immediate appeal, whether you win or lose the motion and it the fact that public agencies in California, the California Supreme Court has said can bring anti slap motions against people trying to petition the government for the redress of grievance makes absolutely no sense to me.
Jeff Lewis 35:23
I tend to agree unless unless it's the pure case where the lawsuit is filed as a result of a public official speech, an individual public officials sued. That might be the case where yeah, you have a righteous anti slap motion. But I tend to agree because there is the potential for for a chilling effect on people's willingness to even risk and anti slap attorneys fee award by filing a simple repetition.
Tim Kowal 35:49
Yeah, seems to be one of those situations where the distinction matters where they say, individuals have rights, governments have powers. Government doesn't have a First Amendment right government just wield the big stick, doesn't get to use use the Constitution against the people. That's an interesting case. Peter, do you know, has there been any movement in that doctrine, this case that Jeff mentioned, Vargas versus City of Salinas was back in 2009. So that's, you know, 13 years ago, you notice, is there any any trend on that or any decisions following that one way or the other?
Peter Prows 36:24
There was a more recent decision, boy, and I've got to this makes for bad radio. But there wasn't more recent decision by the California Supreme Court that I believe it was a labor dispute involving a university where the university the petition was really attacking the actual decision of the university and not any speech and the California Supreme Court said, Look at decision, a public decision is not not speech protected by the anti slap statute. And that struck me as correct. And give me just a moment. I'm sure I can find the case.
Tim Kowal 36:55
Yeah, well, you can look for that. In the meantime, I wanted to ask you about there was another case that you had, you had told me about, and it has to do with administrative mandamus. And this can be, you know, in the abstract sound just as exciting as SQL law. But this has a real punch line to it. So here imagine you have a citizen who is unhappy with an action by the city, maybe there's a city ordinance that, you know, deprive someone of his property, or liberty, or it's or it's unconstitutionally vague. Now, your remedy is to file a petition for writ of mandamus in the Superior Court. But Peter, you'd pointed out to me that the citizens remedy even if he if he wins and gets the remedy, he prays for that mandamus case mandamus remedy may be illusory. What do you mean by that?
Jeff Lewis 37:38
Well,
Peter Prows 37:39
unlike in the courts of appeal, where you can get a remand with directions where the Court of Appeal tells the trial court All right, here's how you need to rule on remand, you never get that in almost never get that in a writ of mandamus, administrative mandamus case, the courts are very careful. And I think this goes back to sort of separations of powers concerns. You know, the courts are one branch of government and administrative agencies come from another branch of government and the courts are reluctant to tell the other branch of government what to do. So the the almost universal remedy is simply just to vacate the decision and send it back. And that gives the the the agency just another crack at the whole thing. And if the legal challenges, for example, you didn't make the appropriate findings, well, they just go back and they rewrite the rewrite the decision and make the finding, and you're you're right back where you started. So it's very easy to win a battle but lose a war, if you're not really careful and in what the claims you're bringing are. And whether, you know, as a practical matter, there's there's it becomes difficult for the for the agency to rule against you again on remand, but there's there's very little to stop them from from trying. And yeah, that that was an observation that Justice Brennan made in one of the cases I sent you in, in a dissenting opinion. But yeah, sometimes you can lose the battle and still win the war. That's how easy it is to be a city attorney. And that's right. I've only succeeded once in in getting a remand with directions. And that was in a coastal commission case. We were challenging a permit condition, a public access permit condition, which which in our view went against the terms of of a judgment or prior judgment that required this bridge of our clients to be kept private and not open to the public. And there is a severability clause in the Coastal Act. And we said, look, this, this clause allows you to sever invalid provisions and leave the rest in effect in the Court of Appeal, unfortunately, in an unpublished decision, agreed with me and and remanded with directions, but that's the only time I've ever seen it happen. It's quite rare. So, you know, you've got to, if you're bringing a writ case and you're advising a client, I'd say, you know, you don't want to bring a claim that's easy for the agency to fix because you may just be wasting your your clients time and money. Yeah. Why don't you want to prevail on a claim that might have a real chance of constraining their discretion next time around?
Tim Kowal 39:54
Well, Peter, when you you emailed me with this case, you'd quoted this this line, see how easy deserves to be a city attorney. Sometimes you can lose the battle and still win the war. And and when you in your email when you quoted that to me you had a case after it Justice Brennan dissenting. I thought that can't really be in a Supreme Court decision, even a dissenting one, but I looked it up and lo and behold, here's here's what it says Justice Brennan, in a footnote, he's quoting justice Brennan's quoting a city attorney, giving this advice at a conference of the National Institute of municipal law officers in California, the quote is here. Here's the heading of of this advice by a city attorney if all else fails, merely amend the regulation and start over again, if legal preventative maintenance does not work, and you still receive a claim attacking the land use regulation. Or if you try the case and lose, don't worry about it all is not lost. One of the extra goodies contained in the recent California Supreme Court case of Selby versus City of San Juan of Ventura appears to allow the city to change the regulation in question, even after trial and judgment, make it more reasonable, more restrictive, or whatever. And everyone starts all over again, see how easy it is to be a city attorney. Sometimes you can lose the battle and still win the war. Good luck and gloat. So that's the that's the footnote from Justice Brennan in San Diego Gas and Electric Company versus City of San Diego. How glib and cynical it is. Now this this opinion was back in 1981. Peter, do you have any idea whether this this attitude persists? Well, I among city attorneys
Peter Prows 41:32
I well, I don't what I would say is city attorneys are looking for ways to protect their their clients, just as everyone else is I'm trying to be diplomatic here. But you know, mandamus it's an equitable remedy. And even if you even if even if a public agency loses in the trial court and takes the matter up on appeal, if they then amend the regulation, even while the appeal is pending, the Court of Appeal is likely to say that that that's going to moot the appeal. And that's a special power that a public agency has because it has lawmaking an adjudicatory powers that private parties often don't. And if the trial court has identified a problem in your in your decision, and you have the power to fix it, and maybe save some some litigation exposure and uncertainty, then it doesn't at all surprise me that good city attorneys might advise their clients to be proactive.
Tim Kowal 42:22
Well, you mentioned this goes back to a to a separation of powers concern on the part of judges. They don't want to they have to review the petition in front of them, but they don't want to cross the line into telling city legislators, you know, City Council's you know, sovereigns how to do their job. Do you think they strike the right balance? You mentioned that, you know, sometimes they do Issue? Issue remand with directions? Do you think they strike the right balance in holding back in the majority of cases in your experience?
Peter Prows 42:50
Well, it's interesting to contrast this attitude with what we saw in the in the MYRIN the Tiburon case where you actually did have a federal stipulated judgment, but nevertheless, the judge signed it. And, you know, maybe it was because the the county in that case, at the time, thought that that was the right resolution. And so the court was less reluctant to be seen to be telling another branch of government what to do. But I think it's, it tends to be good practice in cases where a public agency is involved to try to get a stipulated judgment where you get a court order at the end of the day, rather than just a settlement and a dismissal because City Council's change, and but you know, federal court order is for phase forever, sometimes.
Tim Kowal 43:34
Yeah, there you go. Yeah, that's one of the other doctrines is that city councils cannot bind future city councils.
Peter Prows 43:40
Yeah, but you know that that is certainly limited when it comes to a city council. This decision then gets the force of a judgment behind it. Arise judicata can can be even more powerful sometimes. All right,
Tim Kowal 43:52
well, Jeff, should we should we move on to the lightning round?
Jeff Lewis 43:58
Sure. It's been a long time. But uh, Peter looks like he's well rested and ready to, to face the music. This is the time for our patented corporate copyrighted segment. That answers the most pressing questions that Vex appellate nerds around the world short responses, one sentence when you can let us know what is your font preference century school book garmont or something else?
Peter Prows 44:20
In letters? I use Palatino. In appellate briefs, I use century school book.
Jeff Lewis 44:27
Very good. Very good. I think I know the answer, but two spaces or one,
Peter Prows 44:31
two spaces. I'm sorry, guys.
Jeff Lewis 44:33
Yeah, very good.
Tim Kowal 44:34
Now that's filing already ribeye
Jeff Lewis 44:38
Superior Court or superior court. Do you capitalize the s&c in superior court?
Peter Prows 44:43
I do is I mean, especially if I'm talking to that Superior Court, yes.
Jeff Lewis 44:48
All right.
Tim Kowal 44:49
Let me go back real quick, Peter to do the two spaces. I can't leave it alone. Is that answer informed by your international experience at the Hey began in London and elsewhere.
Peter Prows 45:01
No, I bet but maybe it's informed by the fact that I've had to wear glasses since I was five or six and have a harder time seeing sentence breaks where there's only one space rather than two. So it's purely a help the reader meet meaning myself and my bad eyes. concession
Tim Kowal 45:17
that I award that a valid exempt vacation.
Jeff Lewis 45:22
All right, do you put a table of contents entry in your table of contents?
Peter Prows 45:26
I don't, though, I had this discussion last week with one of my other partners, who does put it in there. And maybe I'll change but I think it's a little silly. I guess it's required by the rules, I'm told, but, and I like to comply with the rules, I might need to have a brief kicked. Sorry, I'm violating your one sentence rule. But that's okay.
Jeff Lewis 45:46
Now, this is strange. Now we're just it's the bog down swamp around instead of lightning
Peter Prows 45:52
round. So so far, I've gotten away with it without leaving it out. So
Jeff Lewis 45:57
all right, and when you are have headings in your briefs, all caps, initial caps or sentence case,
Peter Prows 46:04
you know, I, I now do sentence case, at least for the sort of second level headings. And I think you guys have have turned me around on that, or maybe some of your other guests have, but I think it's your eyes. Yeah, it's much easier on the eyes. And I think it's another way to persuade your reader or explain to your reader what your arguments are, if you use a full sentence in a font that people can actually read. Yeah,
Tim Kowal 46:27
yeah, the title case has come to jump out the page at me and just strike me as extraordinarily offensive now.
Jeff Lewis 46:36
Calm down to And final question after major headings in your briefs? Do you start the next section on a new page or you continue immediately below? It depends.
Peter Prows 46:47
It depends. If I'm sort of maybe more than halfway down the page, then I'll start it on the New page. If there's only a few lines to wrap up the previous section, then I'll probably keep it on the same page. But I don't have a strong opinion about that
Tim Kowal 47:03
one than a new one. Jeff, what's your practice?
Jeff Lewis 47:06
You know, they don't charge you for whitespace. Tim, I'm a big fan of using as much white space as you can
Peter Prows 47:10
in Trump in trial court briefs, where your page limited, you wouldn't go into the next page.
Tim Kowal 47:16
That's costly and trial court,
Jeff Lewis 47:17
there's always room to trim words always work and whitespace really is undervalued, I think in terms of making it readability. Alright, well,
Peter Prows 47:26
I put the I don't know how often you guys put pictures in your briefs, but I, I use them more and more these days. I think, you know, they are worth 1000 words. But they do take up some space. But boy, can they be powerful? Absolutely.
Jeff Lewis 47:40
Yeah. I love a look, I think I mentioned this podcast before, but I'll say it again, when the Supreme Court ruled about prayer on the 50 yard line. And what was happening at the 50 yard line at football games. Sotomayor had not two but three I think photos of what was happening. And those photographs were really powerful presentation about what what's going on. All right, I violated my own rules about the lightning round. You've survived the dreaded lightning round. And one day we'll send you a cup or mug or a t shirt when we have such mugs or T shirts or do it.
Tim Kowal 48:12
Alright, Jeff, I think we just had a couple of couple of tidbits we wanted to share with the audience. Yeah, there's one there's one I found about frivolous motions. And when I advise attorneys, these are frivolous motions for reconsideration specifically. Now when I advise attorneys and clients about whether to file a motion for reconsideration, I've come to feel like I'm in a no win situation. Because on the one hand, even if you have no new facts, and no new law, and even if you've blown your your window and filed the motion for reconsideration, the California Supreme Court and brown Winfield and Ken zeroni has held that that doesn't prevent the trial judge from reconsidering anyway, quote, it should not matter whether the judge has an unprovoked flash of understanding in the middle of the night or acts in response to a party suggestion. So on the one hand, I'll say sure filed a motion for reconsideration. What can it hurt, but here's how it can hurt. On the other hand, if a motion for reconsideration is meritless, frivolous or filed in bad faith, the trial court may order sanctions against the movement under Section 120 8.7. That is what happened in banks versus pronounced that master raucous that's out of the second district, second division. It's an unpublished case, but they're a lower court imposed a $960 sanction against plaintiff for bringing a frivolous motion for reconsideration after an adverse summary grant, a result affirmed on appeal because the reconsideration motion did not mention any new facts and cited improper statutes and ordinances. Now, so this, this goes really undermines my original advice that maybe just file the motion for reconsideration because maybe the judge will just have a flash of new understanding that it got it wrong the first time. I would guess, Jeff, that most motions for reconsideration probably are technically invalid for one reason or another. Mostly they're just filed in hopes of getting the judge to have that flash of new understanding that the ruling was wrong the first time but the banks versus master raucous cases. reminder of the risks of sanctions for bringing an invalid motion for reconsideration.
Jeff Lewis 50:05
Yeah, motions for reconsideration are usually filed when a lawyer doesn't have good client control and can't take the loss.
Peter Prows 50:12
My first one granted actually not not too long ago. I stand corrected. All right. But it was it was it was a it was a posture where we had a TR o denied in state court. And then and then one in a federal related pending federal action in the ninth circuit, we want to stay of the judgment pending appeal. And and we want it within the 10 days. So we weren't out of time. And we brought that to the trial court's attention and the trial courts, and yet that's a new fact. And so I'm reconsidering this denial. And it was it was the right result. But I was still pretty surprised that it actually is possible to to win one of those motions.
Tim Kowal 50:49
But if you're one of those safe harbor letters served on you gotta take it very seriously now. Yeah.
Jeff Lewis 50:53
Yeah. Interesting. All right. And I want to bring to attention one issue that's happening down here in LA. Tim, when I first started practicing law, you show up to court, there's always a court reporter there. And then a few years back because of budget cuts, they started taking away all our civil reporters. So in civil matters, you didn't have court reporters, but you still had them in family law courts, probate courts and writs and receivers. Well, no more in LA County. They've just announced no more court reporters will be automatically provided for family law, probate and writs and receivers. So lawyers practicing those courtrooms in LA Superior Court need to bring their own reporter.
Tim Kowal 51:31
Yeah, that's got to be tough. There has been a shrinkage in the availability of court reporters. I'm not sure what that goes to. But maybe we can all do some sleuthing and see if we could bring our audience some more information about that.
Jeff Lewis 51:45
That will include a link to the Southern California pellet news blog, Ben Schatz actually posted a story about this and indicated it's really a shortage of reporters. It's not even a pay issue. It's just they can't they don't have the bodies. Yeah, it'd be a shame when following the absence of these reporters when there's appeals and appellate lawyers like us start doing motions for settled statements, and the courts get bogged down with having to revisit all of these disputed matters. I suspect a solution to the reporter shortage will manifest itself.
Peter Prows 52:18
I love a good court reporter. Every deposition I'm involved with I always at the end of it, asked the court reporter Hey, what do you think of this witness? You know, because they were witnesses that I have. And I if you can, if you can pigeonhole the court reporter at the end of a deposition and get their take, I find that can be sometimes pretty valuable.
Tim Kowal 52:39
Yeah, it's funny. All right, Jeff, do you have you got one about one more about slap motions? I'm gonna, I'm gonna save this, this retroactivity and the three strikes law to a future episode.
Jeff Lewis 52:51
Okay. Yeah. Then the final point we'll bring and then we'll conclude is, it's long been the case in the ninth circuit that the Ninth Circuit's allowed anti slap motions to be heard in federal district courts. And on August 30 2022, a three judge panel rejected yet another challenge to this rule the cases core civic versus candid group. And it'll be interesting to see if this decision is there's a petition to hear this on bonk because I've I've read dissenting opinions and seen writings where a lot of Ninth Circuit judges are not happy to have anti slap motion is heard in the ninth circuit. So I would be shocked if there's not a petition to hear this on. Bonk. So that was it for me for tidbits, Tim.
Tim Kowal 53:31
All right. Well, sounds good. So that wraps up this episode. And again, we want to thank casetext for sponsoring the podcast each week when we include links to the cases we discussed, we use casetext for our cases and listeners of the podcast can find a 25% discount available to them if they sign up at casetext.com/CALP. And if you have suggestions for future episodes, please email us at info at Cal podcast.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis 54:03
Yeah, email us if you're a maritime lawyer, you want to come on the show and explain what maritime law is See you next time.
Tim Kowal 54:09
Thanks again, Peter, for joining us both.
Announcer 54:11
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.
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One of the challenges for us appellate attorneys arguing posttrial motions is that the trial judge tends to look upon us as johnny-come-latelies. “That’s how things look to you reading the dry transcripts, Mr. Kowal, but you weren’t here when it happened.”
That may be so. But there is someone else who wasn’t there, Three someone elses, in fact: the jurists on the appellate panel. All they will have is the same dry transcript that I have.
While appellate courts tend to defer to a trial judge’s sense of the case, this tends to run up against the great appellate maxim of “record cites or it didn’t happen.” Just saying “you had to be there” doesn’t quite cut it.
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.
So you think a timely notice of appeal is an absolute jurisdictional prerequisite? Though the description of the rule may be a slight overstatement, it is the official line, and as the published opinion in Garg v. Garg (D4d3 Sept. 7, 2022 No. G061500) --- Cal.Rptr.3d ---- 2022 WL 4092828 confirms, the exceptions are few and, as here, difficult to establish.
But there definitely are exceptions to the “jurisdictional” rule that a timely appeal is an absolute prerequisite. The exception at issue in Garg relates to problems with electronic filing. Here is the holding:
If you attempt to timely e-file a notice of appeal, but something goes wrong, all is not lost. Here is what you do:
(1) File the notice of appeal “as soon thereafter as practicable” (in the Superior Court), and at the same time;
(2) File a motion in the Court of Appeal explaining what happened and showing good cause why the notice of appeal should be deemed filed as of the date of your timely attempt. (Rules of Ct., rule 8.77(d).)
But you must do these things immediately. The appellant in Garg waited 29 days, and that was too long. The Court of Appeal held that the appellant showed good cause for the technical foul up (the legal assistant had transmitted the notice of appeal to the e-filing vendor, but for reasons unknown, the vendor did not get it filed). But the court concluded that the appellant did not detect the error and seek relief “as soon thereafter as practicable.”
Writing for the panel, Justice Bedsworth made a few interesting observations about the official line that a timely notice of appeal is an absolute jurisdictional prerequisite.
First, Justice Bedsworth noted that “It has sometimes been suggested that “the time limit on filing a notice of appeal is only as jurisdictional as we want it to be. No constitutional provision, statute, or rule declares the limit to be jurisdictional.”” (Quoting Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677 [dis. opn. of Tobriner, J.]; see also Bowles v. Russell (2008) 551 U.S. 205, 215-223 [dis. opn. of Souter, J. [criticizing 5-4 majority's use of supposed “jurisdictional” rule to unfairly disallow an untimely appeal].) What does the court make of this cynicism? Does Justice Bedsworth come to the defense of the “jurisdictional” camp? Not exactly. Here is Justice Bedsworth’s response to this criticism: “This court, of course, is bound by the majority opinion in Hollister and similar cases. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)” The court will enforce the rule, but the court declines to defend the butch characterization of it.
For one thing, there are several exceptions to the requirement of a timely notice of appeal. Justice Bedsworth rehearses several of them, including that untimely appeals may be excused for reasons of “ineffective assistance of counsel” in criminal and juvenile appeals (see here), or because a prison guard fails to timely remit a prisoner’s notice of appeal (Silverbrand v. Cty. of Los Angeles (2009) 46 Cal.4th 106, 109), or when the clerk does not “receive” the notice of appeal until after the deadline (see here).
(Justice Bedsworth also notes that the very concept of an “exception” to a jurisdictional rule is anathema to those who regard the rule as truly jurisdictional, because a jurisdictional rule does not have exceptions: “Resistance to the notion that there are “exceptions” is perhaps attributed to an understanding that “exceptions” would undermine the concept of a mandatory, jurisdictional, and absolute rule.”)
Nor is an appeal from an appealable order even a prerequisite, as premature appeals are often “saved,” resulting in appeals decided without a valid notice of appeal ever having been filed. (See here.)
All this leads Justice Bedsworth to footnote: “Reminiscent of Voltaire's quip concerning the Holy Roman Empire, the need for a timely notice of appeal is neither “absolute,” nor “jurisdictional,” nor a “prerequisite” — at least not in areas cordoned off from the draconian features of the general rule.””
As relevant to Garg, there are two Rules of Court that may help appellants who have failed to file a timely notice of appeal owing to problems with the e-filing system.
The narrower rule is California Rules of Court, rule 2.259(c). Rule 2.259(c) states: “If a technical problem with a court's electronic filing system prevents the court from accepting an electronic filing on a particular court day, and the electronic filer demonstrates that he or she attempted to electronically file the document on that day, the court must deem the document as filed on that day. This subdivision does not apply to the filing of a complaint or any other initial pleading in an action or proceeding.”
Here, rule 2.259(c) was not raised. But the court noted that rule 2.259(c) appears to be “merely a specific application — or slight extension — of the general rule that documents are deemed filed upon receipt…. Construed in this manner, rule 2.259(c) expands the definition of receipt to include situations in which technical problems with the court's electronic filing system prevents the clerks from accepting the document for filing.” Litigants should direct requests for relief pursuant to rule 2.259(c) to trial courts.
Rule 8.77(d) is the more expansive remedy. Rule 8.77(d) states: “If a filer fails to meet a filing deadline imposed by court order, rule, or statute because of a failure at any point in the electronic transmission and receipt of a document, the filer may file the document on paper or electronically as soon thereafter as practicable and accompany the filing with a motion to accept the document as timely filed. For good cause shown, the court may enter an order permitting the document to be filed nunc pro tunc to the date the filer originally sought to transmit the document electronically.”
The court confirmed that rule 8.77(d) “appears to be broader than rule 2.259(c)” because it allows for relief based on a “failure at any point in the electronic transmission and receipt of a document” (not just a “technical problem with a court's electronic filing system” as under rule 2.259(c)).
But does rule 8.77(d) apply to a notice of appeal? The court finds this not completely obvious, but concludes that yes, rule 8.77(d) does apply to a notice of appeal.
The court then explained what to do if a failure in the electronic filing process prevents an appellate from filing the notice of appeal.
On the evidence here, the court seemed to teeter. If there was no record of an e-filing, did the appellant establish the timely attempt by a preponderance of evidence?
Here is more good news for an appellant: On the factual question, the appellant gets the benefit of the “doubtful cases doctrine.” As the court explained:
“[C]ase law acknowledges a “well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ [Citation.] ... [T]here are many cases in which this policy, implemented in accordance with ‘applicable rules,’ will lead to a determination, based on construction and interpretation, that timely and proper notice of appeal must be deemed in law to have been filed within the jurisdictional period.” (Hollister, supra, 15 Cal.3d at p. 674.) Courts have applied the “doubtful cases” rule in a variety of contexts to allow appeals to proceed when timeliness is uncertain. [Citations.]”
“The “doubtful cases” doctrine does not shift the burden of proof to the respondent or lower the burden of proof below the preponderance of the evidence standard. But it does mean appellants should not be required to resolve all ambiguities and uncertainties in the record in order to obtain relief.”
Unfortunately for the appellant here, however, the timely attempt was not enough: the appellant needed to correct the e-filing problem “as soon thereafter as practicable,” and the appellant, by waiting 29 days, did not do that.
Appeal dismissed.
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 will review a surprising appellate court holding from earlier this year (writeup here; podcast here) that held that a defendant did not waive the right to arbitrate, even though the defendant had answered the complaint, served multiple sets of discovery, took the employee-plaintiff’s deposition, and otherwise happily litigated for 13 months before finally moving to compel arbitration.
The majority in Quach v. Calif. Commerce Club, Inc. (D2d1 Apr. 14, 2022 no. B310458) 78 Cal.App.5th 470 found that these facts, as a matter of law, do not waive arbitration. The court noted that the California Supreme Court in Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1203, had held that mere participation in litigation, and merely driving up court costs and expenses, are not enough to establish waiver of the right to arbitrate.
The dissent would have found a waiver. The dissent would have relied on the trial court’s implied finding that the employer delayed for 13 months precisely “to intimidate a vulnerable at-will employee who lacks the economic resources to cope with such delay.” “Quach's appellate brief hits the nail on the head: “[By now], all benefits of a speedy resolution [Quach] could have obtained through arbitration [have] been lost.””
David Ettinger notes that the opinion was filed less than two weeks before the U.S. Supreme Court held prejudice to the other side is not essential to finding an arbitration waiver in federal courts. (Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708.)
The Quach opinion was originally unpublished. After I filed an amicus curiae request for publication, the Court of Appeal granted rehearing on its own motion, and re-issued a modified and partially published opinion. The Court published its holding that the defendant seeking arbitration here had not waived arbitration by litigating for 13 months. The result is the same, but the Court further stressed that "Quach admitted he incurred no costs in litigation that he would not otherwise have expended had the case gone to arbitration earlier." The Court also deleted a reference to the rule that the moving party prejudices the nonmoving party "by depriving that party of the advantages of arbitration." This was one of the challenges in the dissent, to which the majority also now includes a direct response.
The appellate holding now stands for a narrower rule that litigation costs are not prejudice for purposes of establishing a waiver of the right to arbitrate. But the holding now implicitly acknowledges that the delay does deprive the nonmoving party of the intended benefits of arbitration. This represents an anomaly in the Supreme Court's St. Agnes doctrine. We will see if the Supreme Court addresses this in its review.
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 does the U.S. Supreme Court’s holding in Viking River Cruises, Inc. v. Moriana mean for PAGA claims against employers in California? Employment attorney Eric Kingsley explains how, under Viking River, employees now may be forced to waive their PAGA claims on a representative basis and arbitrate them individually instead. The holding disapproves the California Supreme Court decision in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348 as running afoul of the Federal Arbitration Act.
Eric explains that the effect of Viking River may be short-lived. The California Supreme Court has already granted review in another case involving whether arbitration may be compelled in a PAGA representative action in Adolph v. Uber Technologies, Inc. Eric explains how the Court may follow the lead offered in Justice Sotomayor’s Viking River concurrence.
Eric also shares his experiences litigating in the California Supreme Court, some other interesting employment cases, and the Dr. Sally Ride Memorial Highway.
Eric Kingsley’s biography, LinkedIn profile, and Twitter feed.
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.
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TRANSCRIPT:
Eric Kingsley 0:03
I find arbitration to be an anathema. It's it's absolutely horrible. I mean, the Seventh Amendment exists for a reason.
Announcer 0:09
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 0:23
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:25
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, but we split our practices about evenly between trial and appellate courts. And on each episode, we try to bring our audience some legal news and perspective they can use in their practice.
Jeff Lewis 0:41
All right, and a quick thank you to our sponsor case text. This podcast is sponsored by case tax and case tax is 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 case tech since 2019. And I highly endorse the service listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at keys text.com/calpe That's these texts.com/ca LP today we
Tim Kowal 1:11
are glad to welcome Eric Kingsley to the podcast. Eric is a principal in Kingsley and Kingsley. He has practiced concentrates on wage and hour cases class and pagal litigation in California. He has been on the cutting edge of numerous legal issues, including being a part of a legal team that took a case to the United States Supreme Court in 2012. And then in 2020, Eric personally argued a case before the California Supreme Court in Chem V rains that resulted in a seven Oh opinion in his client employees favor. Aside from his legal work. He has been an active member of the California Employment Lawyers Association and on the board of the Consumer Attorneys of California who seeks to advocate for legislation on behalf of consumers and employees in Sacramento. Eric has served as the chair of the anti defamation League's Pacific Southwest Region, and currently serves as vice chair of International Affairs. Eric received a BA in history from UC Santa Barbara in 1993, and remains an avid history buff and a political watcher. So Eric, welcome to the podcast. Thanks for joining us.
Eric Kingsley 2:13
Thank you so much for having me.
Tim Kowal 2:15
I understand that that you and Jeff have a connection as well. I think you go way back to Loyola law school. Is that right?
Eric Kingsley 2:22
Yes. And I believe we also attended college together at UC Santa Barbara, go Gauchos?
Tim Kowal 2:27
Yes. All right. Well, Eric, I only gave gave a snippet of your resume, if you would tell us a little more about your employment practice. And as we're going to be talking about pega cases, how much of your workload involves pega cases?
Eric Kingsley 2:42
So you know, I My practice is dedicated to employment law, you know, and we probably have a smaller portion of our practice, what some of the industry call your fee, har, single plaintiff, employment matters, sort of sexual harassment, discrimination. And sometimes you have individual Wage and Hour claims if the matters are particularly large. But the bulk of the practice, probably about 80% is a class and haga litigation on behalf of groups of employees who have been some way harmed by their employer, not paid overtime, denied breaks during COVID. One thing that was very common is he would send folks home and they would have to pay for their own internet and their own cell phones and no reimbursement of their business expenses. And so that's kind of an interesting claim that you didn't see prior to 2020 as common.
Tim Kowal 3:32
Now, here's maybe an ignoramus question, when does a pega action become a class action?
Eric Kingsley 3:40
So paga, you know, is a statute that was enacted? Right as Gray Davis was sort of leaving office having been, you know, recalled from office and replaced by, you know, Governor Schwarzenegger, and this was sort of his last act as governor. And so it's interesting when it was enacted back in early, I think it was 2004. If I get the date correctly, it wasn't an enlarged use. And so I think what happened from a historical perspective is in 20, oh 11 When the 18 T vs. Concepcion case came down from the US Supreme Court, which started to put into question whether or not arbitration agreements could be enforced, first against consumers and started to create a trend as against employees as well, that paga and then you have the ischemia and a case here that came down in 2013. From our own California Supreme Court that said, the state is not in privity of contract with the employer. And so therefore, because paga you really stand in the shoes of the state, and are bringing labor enforcement actions on behalf of the state. That claim couldn't be compelled into arbitration. And so I think since 2013, so really nine years, haga started to pick up a head of steam, because many class actions couldn't be brought because they compelled are the individual be compelled into arbitration. But paga as an enforcement action on behalf of the state could still be pursued without arbitration being a roadblock.
Tim Kowal 5:10
So you Jeff, as sometimes happens, my attempts at light banter take us into law review article answers. And sorry about that. Just demand to bring it I mean, I read I was telling Jeff that I've read some of some Eric's daily journal articles and pieces talking about the Viking river cruises case that we'll be talking about a little later. And and I got the same feeling as far as I can remember having about a pellet procedural Arcana before studying for and passing the appellate specialist exam. This is this is worthy of being its own area of legal specialty, these employment law cases and paga cases.
Eric Kingsley 5:46
It's interesting if I can intercede for a second I what I find interesting about wage and hour, especially though the practice developed over the last 15 or 20 years, is that it's very legal intensive, which is probably right up your guys's alley, because that's sort of what you do with your appellate and it's very appellate intensive to to some degree, whereas the other side of employment law is really interesting. It's very much about emotion and emotional distress damages and a little bit more touchy feely, you know, whereas Wage and Hour tends to be much more about math and law, it's a little bit more cut and dried, either it is or it isn't, you know, depending on the circumstances.
Tim Kowal 6:18
Well, we'll talk a little bit later about opportunities where appellate attorneys can get involved in these pocket cases, because in employment arbitration, arbitration gets involved so often in arbitration is designed mostly to cut us appellate attorneys out of the out of business. So so I'm anxious to know of any angles where appellate attorneys can get more involved there. But I have to go back to to your United States Supreme Court case, tell us a little bit about your journey to the US Supreme Court.
Eric Kingsley 6:43
Yeah, so that was interesting. It didn't end well. But so in about 2007 2008, I started getting involved with a series of cases on behalf of pharmaceutical sales representatives. And those are kind of the people that go into doctors offices, and sort of convinced the doctor to prescribe particular product drug usually. And so they were getting paid on a straight salary. And so I us and a couple other lawyers in New York in Chicago, decided that that was inappropriate under both federal and and state law. And it makes practical sense, because the when the pharmaceutical rep talks to the doctor, she's or he is a lot of them were women, trying to get a non binding commitment for the doctor to prescribe a product. And so the industry was claiming that that was the sale. And so therefore, they were exempted, or what's called the outside sales exemption. We said no, no, the sale occurs when the patient shows up at a pharmacy and actually pays money, you know, to the pharmacy to purchase the actual product, that that's where the sale occurs. So we litigated these cases for a while there was a Second Circuit ruling that actually ruled in our favor and the employees favor, and then the Ninth Circuit ruled against, there was a team out of Arizona that was handling that case. And they wanted to appeal it to the US Supreme Court. And I sort of told them that that was a bad idea. And they weren't convinced. And so then the other side hired Paul Clemente to be their lawyer. And Paul Clement, basically, in his opposing brief told the court to take the case and they took the case. So then we proceeded to hire Tom Goldstein, who is the SCOTUS blog founder and argue the case and we felt pretty good actually, the argument, interesting story I am when I showed up in DC, I wasn't at counsel table. I was there were four of us that sort of were on the brief, but because the Solicitor General came in at the last minute, two of those seats, went to the Solicitor General, so I did not get my coal pen. I didn't get to sit at counsel table. But interesting story. When I walked into the chamber, I didn't have anything on me. Most people had phones and wallets. I happen to have not brought it with me because I kind of knew we were gonna have to go through security, walked right. And I was the first person that entered the courtroom. And they sat me right on the front row. And Donald Verrilli, Jr, who had a reserved seat that was seated next to mine, who at the time was the Solicitor General of the United States. And I got to have a nice conversation with him for about 45 minutes. And after that was over, we felt good. And then about I guess two months later, we got the decision five before we lost, Alito wrote the opinion and Breyer wrote the dissent, just along the lines that you would expect.
Tim Kowal 9:22
Yeah, no, that's that's an incredible story, though. What a ride. Well, let's Well, let's move to your more recent case in the California Supreme Court in in 2020. The case was Kim V. Raines, where the California Supreme Court ruled in your favor, this time in a class action wage claim. And I wondered if, before we discuss that case, do you have any tips to our audience on how to get the California Supreme Court to grant review? What you
Eric Kingsley 9:49
have to lose? Right so I, you know, interestingly enough to hear the story of the case I lost in the trial court. Then I went to the Court of Appeal, lost again and sort of incredulous How is this possible, they don't understand, you know, the way the law is supposed to work. And then you file your petition for review. And lo and behold, they take the case and you look like a hero. But but for, you know, the since the grant rates are so low, you know, I could have ruined the law just as easily has been the hero to the employment bar by sort of setting it straight.
Jeff Lewis 10:23
All right, why don't you tell our audience what that case was about and what the Supreme Court ruled.
Eric Kingsley 10:29
So my client, Mr. Kim, was worked at a restaurant and he wasn't paid overtime when he was a management trainee. And so our argument was that because he, he didn't yet have managerial authority, he couldn't be paid as an exempt employee. And therefore, since he worked overtime, he was entitled to overtime. And I don't think really, that was really in much dispute. I think it was pretty clear we were going to when they made a motion to compel arbitration, the paga claim this is pre Viking, obviously, at the time was stayed in court, we went to the arbitration proceeding, they then proceeded to serve a 998 offer on us for $20,000 exclusive of fees. So we could get fees on top of the 20,000, the claim was probably only worth about $10,000. And so we kind of felt we were in a quandary, we knew that a trap was laid for us. But we didn't feel that, ethically speaking, we had a choice, you know, if the claim was worth what they're offering us twice what his claim was worth. And so we accepted, there was language in the 998. That said, sort of paraphrasing from memory here, but something like that. This only applies to Mr. Kim's individual claims only. But we thought, okay, we know this could be a problem. But you know, we have no choice. We have to take our shot. So we go back to the trial court, they make a motion for summary judgment, saying that basically he loses standing. The impetus for that is labor code. 2699, which is the August statute says that an aggrieved employee is someone who wants a more employed by an alleged violator, so employed by the company and who one or more of the alleged violations was committed against. So we thought, well, you know, they committed the overtime violation against him, the fact that he doesn't have individual standing for his pure individual claims anymore shouldn't affect his paga standing or disagreed granted summary judgment. We thought we had, you know, we had to fight back. So we we appealed, the Court of Appeals was very hostile and oral argument and affirm the judgment of the court. And then we went to the Supreme Court and California Supreme Court, and they were very favorable in the opinion, they basically said once aggrieved always, you know, if you were employed by alleged violator, number one, and it was committed against you, you don't lose that status as an aggrieved employee, just because you've settled your individual claims, the state still has a claim and you meet the standing requirement. Yeah.
Jeff Lewis 12:47
And let me ask you this, you obtained a seven Oh, decision and the California Supreme Court. By my reading, the Supreme Court of California often seems less divided and less divisive. In general, when they decide cases than the United States Supreme Court. Would you agree with that? And why why is it the California Supreme Court can can all get on the same page in the in the United States Supreme Court can't?
Eric Kingsley 13:10
It's it's interesting. Yes. As you're asking me the question, I kind of saw what you were going with that. It's always interesting to me, and sometimes there's some pretty liberal opinions that have come out of the court over the last 510 years, you know, Justice chin, you know, even on the court now, Justice Corrigan, who obviously were appointed by Republicans, and you would think have a little bit more conservative point of view. But it just seems like in general, on almost all issues, you don't see too many dissents may even go back to the breaker case, which was in 2012. I believe there were two concurrences where they felt like the court could should go a little further. But But generally speaking, you get wide consensus even on pretty I don't want to say radical, but you know, somewhat more than left of center positions on on employment matters that really probably disappoints the business community to a significant degree.
Tim Kowal 14:02
Do you think that may have to do with with issues being less ideologically tinged, or because the justices themselves are less ideologically tinged?
Eric Kingsley 14:11
I don't know. I mean, maybe maybe we want to hope that judges look at what statute on the page and if the legislature isn't acting more left leaning principles, they're actually interpreting them as they were written? I don't I honestly, I don't know how to read their minds. Right.
Jeff Lewis 14:25
Let me ask this, you know, as appellate attorneys, Tim and I and our most of our listeners, are generally hostile to arbitrations, because there's no meaningful right of appeal on the merits of the dispute. And I was just wondering with the work that you do the employment work, do you see any role for arbitrations in employment disputes? Are there any disputes that you think arbitrations are the preferable way of resolving disputes?
Eric Kingsley 14:50
So two comments about your question one is interesting. There actually is a place for appeals and arbitration I've seen Not that many, but there are a few number have arbitration agreements that actually provide for at an appellate layer of review to an arbitrator. So, I guess theoretically, practitioners might, you know, reach out to appellate folks to to handle those appeals if they're either successful or not successful, depending on what side they're on. But I find arbitration to be an anathema. It's absolutely horrible. I mean, the Seventh Amendment exists for a reason. And the fact that you can just waive your Seventh Amendment rights, you know, pre dispute seems crazy to me. I mean, I think that, you know, Madison would be rolling over in his grave if you heard that we've created such a system. And I actually further predict, probably in 15 or 20 years from now that the FAA will be drawing the Federal Arbitration Act will be drastically carved out and we'll look back at this period of history as sort of a second Lochner era, and then be surprised that folks had to go to some private judging in order to get justice in this country.
Tim Kowal 15:53
You have a comment on on private judging more, more generally, we have talked about this issues. Some some concurring opinions and dissenting opinions that Jeff and I have talked about in recent years, have been taking a little bit more of a critical shot at at the idea of private judging, as you just expressed, and do you do you see a trend going one direction or another, either for or against private judging? Well, I
Eric Kingsley 16:17
think that the business community in the chamber obviously likes private judging, because, you know, I mean, especially, you know, jury trials can can get out of hand. I mean, I understand on, you know, especially in a sexual harassment case, which now with the new law that Biden signed earlier this year, sexual harassment claims are excluded, which shows it was unanimous consent. So there were 100. Senators, I mean, think about how they divisive this country isn't good 100 senators on a voice vote, approve that bill, and and even large numbers of Republicans in the House voted for it wasn't overwhelming there. But and so you have to say to yourself, that maybe the me to movement, and the combination of Gretchen Carlson, who used to work at Fox News was pushing that Bill made it that sexual harassment was just like, okay, that goes so far, that we're not gonna allow private judges to hear those disputes. But why is that dispute any different than than any other employment dispute? And so it's interesting. I mean, even in the if you look at the fair tract, which is the act in Congress to basically carve out employment and consumer matters there, Matt Gaetz, the pretty far right wing congressman from Florida, it has been for many, many years been in favor of carving that out sort of a populist message, if you will. And even Senators Graham and Kennedy from Louisiana, have been favorable towards it. So there couldn't be a trend, I think developing here where, you know, both sides of the arm see forced arbitration as something that's not, you know, acceptable in the country.
Tim Kowal 17:47
Interesting. Well, let's want to ask a question from, from the other perspective, from this perspective of employers. Now, you know, a lot about employment law, and many of our listeners are attorneys, who are employers themselves running their own firms. Sometimes you hear these cases coming coming down, or you hear about these employment regulations. And you think, Oh, my gosh, you know, there's just so many traps for the unwary. Did I remember to give my, my assistant a break last Tuesday, or am I gonna get hit with a lawsuit? Or Did I did I remember to put out enough chairs for all my staff? Am I gonna get hit with a lawsuit? What can you say to to assure good faith employers that, you know, having fair employment in laws and enforcement procedures does not mean that you're gonna get hit with a lawsuit every Tuesday?
Eric Kingsley 18:32
I mean, I hope not. I mean, it's, it's, it's not easy, I will, I will acknowledge that, that there are a lot of different things. But I would say that there's probably 10, you know, five to 10 really big things that you really have to worry about. I mean, meal breaks, you know, depending on what type of business you're in seating, you know, I mean, there are some smaller regulations that have to be complied with. I do think, though, that you is an employer of any size, you know, and especially small businesses, maybe less than 50 will be cheap about, you know, hiring labor counsel, because it's an easy cost to, to eliminate, but it's sort of short sighted because if you do do something wrong, then you know, the expensive the lawsuit is gonna be much greater than, you know, having somebody go through your handbook and give you certain basic advice on how to run your business or law firm or whatever it might be. But on the other hand, I also think that it's about treating people right, you know, if you treat people, right, most people and then I can't say this without exception, but I think most people are not going to seek out legal counsel afterwards. I mean, I can tell you that a lot of people all at my firm, really, really mad and feel like you know, disrespected to a large degree. And even if I can't help them in the thing that they're coming to, you know, let's say they think they have been wrongfully terminated, you know, in California and at will employment state so you can be terminated for any time any, any, any reason as long as not the wrong reason. And so they don't have a wrong reason. Then then typically that there's there's not a case there. But sometimes if you ask them a couple questions about wage practices, and did you get paid overtime? Did you get your breaks? All these sort of things? They said, Well, no, I didn't that really, you know, and so then all of a sudden that leads to another conversation, all of a sudden the employer could could have exposure. But if they never called the lawyer, they probably wouldn't have necessarily pursued it.
Tim Kowal 20:22
Right. Now, there are a lot of we keep hearing stories about a lot of companies picking up and moving to other states, like Texas and citing complaints about over regulation. And in your view is, is there an over regulation issue? Do we regulate employers, the right amount, are there? There's some things we're still missing? Or some things we're going overkill? What's your perspective on that?
Eric Kingsley 20:45
I mean, I think there's probably, I mean, anybody can can have different opinions on this, you know, and so there's probably like, as it relates to the overall I think it's about right, there could be some areas where it's more in some areas last and you know, there's always I think, room for reform and sort of consolidating things, but I don't I hear
Tim Kowal 21:04
on on bigger corporations who have their own HR departments rather than mom and pop shops, or, you know, single, single employers who, you know, have to make heads and tails of all of the regulations themselves are and it's going to be in, you know, economies of scale make it easier to hire lawyers to handle these things.
Eric Kingsley 21:23
That's true. And I think the legislature has done a pretty good job in recent years where they've had some carve outs for like employers, less than 25 employees and minimum wage had a slower phase in for those those types of businesses. And so I know, in working with sila, California Employment Law Association, that there's always a sensitivity to some of the smaller employers and sometimes some of the regulations, you have to have a certain number of employees before they get triggered.
Tim Kowal 21:47
All right, well, let's let's jump into Viking rivers. I'm almost scared to talk about Viking rivers because it I don't know that it means what it's what it says it means. And whatever it means is it going to be overcome by the recent Adolph case, it's been granted review in California, I understand wonder if you give our listeners a lay of the land of Viking rivers and maybe connect the dots from where we go. It's a recent Godus decision from just a couple of months back, but already, is it obsolete already?
Eric Kingsley 22:14
Well, the defense bar certainly doesn't think so. So, you know, we're sitting here at the end of August 2022. And I've had at least 11 motions to compel arbitration. Since Viking came down. We've already argued two of them, we won one, we sort of lost the other, but we didn't really lose we, we were compelled arbitration, we come back to do our paga. I think that's the way a lot of them are gonna go down is the court may send folks to what's now called individual paga claims. It is a real hard onion to see.
Tim Kowal 22:47
Well, what let's start from the from the holding of Viking River. What was the issue in Viking River that the Supreme Court decided and what did it hold?
Eric Kingsley 22:55
So there's really three different holdings. I mean, I guess, if you read the section two, there's four sections of the opinion. Section one is basically introductory, section two, is really interesting, because section two And section three sort of contradict each other. And there's been some speculation that maybe a Sotomayor clerk wrote, or Kagan clerk wrote section two, and that Alito, or Gorsuch clerk, you know, or themselves, you know, wrote section three, because they cite the same cases for different principles. And so to take a step back, so you have told us that the problem with these these arbitration cases in the US Supreme Court is they all build on each other. So there was a case called Stolt Nielsen that came down in 2010. That basically said that if you had a silent agreement, that that that a class action couldn't go to arbitration if the agreement was just silent. What's interesting about that case, is the parties stipulated that it was silent. And so over the last 12 years, if there was ever an issue of trying to go to arbitration, on an on a, quote, silent agreement, we the plaintiffs would never say it was silent. We would just say, well, it doesn't mention arbitration. But if you look at the wording of the agreement, it was it really the parties anticipated that there would be a class proceeding. And so Lamps Plus, which came down, I guess, last year or the year before sort of ended that it basically said, in order for a class action to go to arbitration, you actually have to say that the class action can go to arbitration. So having said that, Viking said in section two, it says, Look, we don't think anything in our authority suggests that paga is the same as a class, and that we don't see any problem with a power claim going into arbitration. So section two, I think, is a really interesting question how the federal and state courts are going to interpret that in terms of whether or not all of paga who go to arbitration, you know, if so, if you have an agreement that just doesn't say one way or the other, I think there's a good argument that you can actually compel that case to either side could compel that case to a pug arbitration. There's a couple California court of appeal cases one called Glen air, it's suggests otherwise. But you could argue Viking overrules Glen area because Supreme Court. So but then section three sort of says the opposite. Not really. It says if the party say they don't want to go to Pog arbitration, they can go to pod arbitration. And so I think that sort of makes sense. If the parties specifically say that, then you can't go. But then they also start to they say to assault Nielson, for that proposition. So it's sort of interesting how those are internally contradictory. And so then section four sort of builds on two and three. Maybe to sum it up. I think there's one Viking has they have three things. Viking had a waiver, severability clause and a savings clause. And that's the key to Viking, right. So a waiver, meaning you say I don't want hog arbitration, parametric arbitration is waived, you can't you can't do it. And then they had a severability clause that said, and the reason why the severability clause is important is because the Supreme Court actually said a scanning is still good law. Insofar as it doesn't interfere with the parties right to contract, you still have a right to do your representative paga. And so Vikings agreement had a severability clause that said if there's anything illegal in the contract that gets severed down. But then third, the Viking contract had what's called a savings clause. And what that savings clause said, Look, if there's a separate, if there's something illegal in this agreement, it gets severed out anything that remains in the agreement, that part goes to arbitration. And so at the end of the day, Alito basically said, Look, because the written was drafted this way, and because the FAA, we have to honor their contractual directive, you have to send it's crazy, really, the power gets gets cut in too. And so the individual paga, which there's no such thing under California law, and until Viking came down in June, gets sent to arbitration, the representative paga stays in court because of a scanning. But then in what we're saying is dicta. And this is where you This is where you get to the real crux of the debate right now, it says, but you're cutting, basically, and he doesn't say this in so many words, but in summary, and paraphrasing him, he's like, you're cutting off the head of the snake. And so when that's the head of the snake goes to arbitration, the body's going to die, because the head can't come back and get reattached to the body. And so he's saying he says, as we see it, that the individual loses standing. Now, Sotomayor, to her credit, maybe if we take a step back, there were a it was a two one decision, right, Thomas dissents, because he says this doesn't apply in state court, some crazy reason that you can't come up through the state court vehicle, if it was going through the federal court way, then he probably would come you would aside with the conservatives. So he was out of the picture. The liberal signed on to the opinion, and actually, the court of the opinion is actually only signed on by five, and you'd have for lack of a better word, the moderates, Roberts Barrett and Kavanaugh basically said we would strike pug entirely, but for whatever reason, Alito, and Gorsuch decided because of states rights issues, they signed on with the liberals for the core of the opinion, and, and basically said, you know, this is how it is you gotta have a savings clause and all that. But then at the end, you know, Alito wanted biking to win because he's, you know, pro pro business. And so he said, Viking wins, but Sotomayor and her concurrent says, Wait a second, you know, we could be wrong. And if we're wrong, the California legislature can fix it. Or if we were right, the legislature can fix it. And if we're wrong, the California Supreme Court basically have the last word on this, which brings us, Tim to your mentioning of the eight offers is Uber decision is eight offers Zuber in their issue presented are going to squarely address this standing question.
Tim Kowal 28:37
Yeah. Well, I wanted to go back to what you said about the situations that Viking river cruises creates where you're going to have what is it the the individual is going to be going to be an arbitration or in the trial court.
Eric Kingsley 28:50
So the No, the individual paga would be in arbitration. In addition to and this is interesting, this is more of a practice tip, plaintiff's lawyer should bring all their individual claims. And so if you're going to get pushed into arbitration, you should not only bring your individual paga, you should bring your pure individual claims. So any claims that you have just by statute, irrespective of paga, and if there's wrongful termination claims or other types of claims like that those should get brought into arbitration too, because you might as well.
Tim Kowal 29:20
Okay. And so you've got that in arbitration. And then you've got you've got the rest of the the class so to speak in, in the trial court and what they're just stayed pending the outcome of the of the arbitration.
Eric Kingsley 29:35
Presumably there stayed the there's an interesting argument floating around maybe if you read the way the appellate statute is, maybe they don't get state, maybe you run them concurrently. I think those arguments might start getting made. So
Tim Kowal 29:47
you know, should Why was inconsistent rulings, potentially,
Eric Kingsley 29:51
I guess that's true. So I mean, I guess the trial courts in the court of appeal will have to sort out whether or not they should be status scanning and sort of mentions it in passing but doesn't really say whether or not the claim should be stayed or not. And whether they go forward at the same time
Tim Kowal 30:05
or whether one has stayed as soon as there is a favorable ruling to one party in either forum, isn't the other, aren't they going to rush into the other forum? Or is it the the other the other party is going to seek non non mutual offensive collateral estoppel. And in the other forum, are they
Eric Kingsley 30:23
well, actually is mutual, although it's interesting. There was a unpublished opinion that came down on Friday, August 26, where the plaintiff lost in arbitration, the court said it wasn't. It wasn't didn't create issue preclusion. So maybe that'll get published maybe another case, we'll bring that issue up. So I don't think that's really sorted out yet.
Tim Kowal 30:40
Interesting. So, so there are a lot of a lot of loose ends, I guess. Now, you have mentioned in your writings in the daily journal, I think that the defense bar, the employers look to Viking river cruises, and they see this is a big W, it's a big win for their side. But you suggested that maybe this could be wind up being a boon to to the plaintiffs bar,
Eric Kingsley 31:01
I wouldn't say it's a boon in the sense it's an annoyance to some degree. But I think if you look at it from a practical perspective, so let's say they win their motion to compel arbitration and the individual paga goes to arbitration. So now you have to litigate that claim. In arbitration, I understand employers think maybe they have a better shot at winning in arbitration, because of the whole repeat player idea and all that sort of thing. But you're a plaintiff's lawyer, and you're bringing good claims, and you win at least one of your haga claims. And the paga claims are relatively small, if you think about it, because the paga penalty when it's large in the aggregate, but for one person, it's small, because it's like 100 bucks a pay period. So if you have a one year claim, somebody's paid twice a month, to $2,400 claim. So an arbitrator might be like, okay, 2400 bucks, maybe I'll strike him on some of these other things that he's bringing in award $2,400, right. And it goes back to the trial court, and now the employer is going to pay plaintiff's lawyers fees, the defense lawyers fees, and the arbitrators fees. So that's like, probably 150 $200,000, like minimum, and now you're going back to the trial court. And now you've just won $2,400. And you say to the trial court, well, like you just mentioned, Tim, non neutral offensive collateral estoppel, we won, like, Okay, now the question is damages, and the court is like, what did the arbitrator do? Well, I'm trying to give me 100 cents on the dollar. So then now, when the defense is trying to argue, oh, it should be some small number, like 10 cents on the dollar on the paga claim, because the court has discretion, the court is going to be anchored to that larger number that the arbitrator is going to award just for one person. But now you've got 500 people, maybe the judge is more inclined to give a higher amount. And so I think defense lawyers should think long and hard, especially in smaller companies, if they're going to come out ahead of the game on a business side by going through this whole process. Yeah,
Tim Kowal 32:48
you know, to go back to this, this Adolph versus Uber Technologies case, I just want to make sure I understand how that comes about and how that plays into the Viking river cruises analysis. I think it has to do with there was there was some dicta in the decision in the Viking river cruises case that that has that references that a plaintiff can maintain non individual paga claims in an action only if if that if that claim is being maintained an individual claim in the same action. And so when you separate them, I guess you it destroys standing in this analysis of the dicta. And that's where you point out that Justice Sotomayor says, Well, maybe yes, maybe no, that's a state law determination. And and is this where eight offers his Uber Technologies comes in? It's going to decide the standing issue?
Eric Kingsley 33:36
Yeah, I mean, and it goes back to the Kim versus reigns case, because at the end of the day, you know, Kim versus reigns said once aggrieved, always agree. Now, the facts are a little bit different here in the sense that so when Kim was an overtime claim, under the overtime statute under the labor code, right, and then we were trying to bring an overtime claim under paga. And so the court said, just because he settled his overtime claim under the labor code, he could still stand in the shoes of the state, and bring the paga claim on behalf of the state. So that's settled law. So then the second question, then is if he settled his individual paga, so it's a little bit different, because within the same statute, can he continue to represent the other aggrieved employees inside the paga statute once he comes back to court after arbitration? I think the same principle applies, though, in the sense that in kin versus Rames, the court said once aggrieved, always aggrieved, I was having a conversation with a defense lawyer the other day, and I said, Can you name me one, California or California Supreme Court case, where the justices ruled in a pro employee or matter in the last 10 years? And he couldn't name one? I don't I don't I mean, we probably could if we went through the list, but it doesn't happen very often. So if you were if you're betting on this, you know, the calla convention is coming up and you know, all these plaintiffs lawyers are going to Vegas. So be if there was a betting window and we could bet on ADA versus Oops. I mean, I imagined the odds would be horrific. You know, I'd have to put down $100 to win 10.
Tim Kowal 35:06
Yeah, yeah.
Jeff Lewis 35:07
Hey, are you going to be filing an amicus brief regarding eight off case?
Eric Kingsley 35:12
I have not been asked. But I guess if if Michael Rubin needs needs some help, I would be happy to help out on that. Yes, absolutely. Okay.
Tim Kowal 35:19
Well, I told Jeff, that that I was scared to talk about Viking river cruises if because it's going to make my head hurt. And I think that's been borne out. This seems like so many ins and outs and ups and downs. And what have you. Is it mind good company here? Are there? I mean, I can't imagine having one of these cases and not consulting a specialist. And I repeat, I think that, that what you do is plaintiffs? Well, plaintiffs or defendants employment law should be its own area of legal specialty recognized by the state bar after this conversation. I appreciate that
Eric Kingsley 35:49
I actually don't think it's as complicated as it seems, once you get into it right after the opinion, I actually drafted up a flowchart that's I've circulated a couple of different CLAS. I mean, it's, you know, there's about six or seven weigh stations along the way. And there's, there's things you should look for. But I can tell you, if somebody sends, and I'm happy to do it, you know, people send me arbitration agreements, you can look through it in about four to five minutes. And you can identify, I mean, if there's about two paragraphs, you want to look at the scope of the agreement, because sometimes it can, you can fall outside of the scope of the agreement, and that haga may not be included, depending on the language. One of the problems there was the people were trying to anticipate what the Supreme Court was going to do. And I don't think anybody anticipated this. And so the length the language is drafted in an odd way. And then you'd have to look and see, are there severance clause severability clauses? Or are there savings clauses? You know, and I think that's the crux of it. So it gets a little deep in the weeds. And it sounds more complicated than it is. But I think if you read the opinion through two or three times, you kick in, it kicks into your brain.
Tim Kowal 36:49
Got it? Well, but the problem seems like it's not it's not going to have a very long shelf life. It's a it's already morphing, at least here in California are potentially going to morph with the aid off case.
Eric Kingsley 36:59
I think that's right. And the legislative session, they did not address it. So but I think that next year, we may also, I mean, it's interesting, we may see a bill and 23 to try to address it. And then the other wrinkle is that there's a ballot initiative that qualified for the November 24 ballot. I think they were trying to qualify it for this year, but they were not able to get the signatures in time. So it's qualified for the 24, November 24 ballot, you know, so we could see ads on TV, you know, in two years time telling us evils of paga. And the lawyers trying to trying to hurt employee employees or whatever it is,
Jeff Lewis 37:34
Hey, Eric, you seem to have your pulse, your finger on the pulse of what's happening in Sacramento in terms of employment law, there was an effort a couple years back to make to legislate a four day workweek for employees. Do you see and it didn't? It didn't go through it died? Do you see that as a realistic direction that California is going to go in terms of four day workweeks?
Eric Kingsley 37:54
I don't remember hearing about that. I don't I haven't heard about it in a while. I mean, you know that. It's interesting, though, that you could do that, if you want to the Labor Code provides for an alternative work week schedule that can be voted on by the employees, and they can work for 10 or even a 312. if they so choose, you have to go through this alternative work week election procedure and file it with the state
Jeff Lewis 38:13
secret ballot. And this Yes, yes,
Eric Kingsley 38:15
it's in the
Jeff Lewis 38:16
we want to be the one guy that says I want to five days I don't want a three day weekend. You know what that guy being outed?
Eric Kingsley 38:22
I know, there's a trend amongst like office workers, law firms. I've heard where folks are coming into the office, fewer days, but they don't want workers coming in on Mondays and Fridays. They they want them coming in on either Monday or Friday. They don't want them staying home on both days.
Jeff Lewis 38:38
Right, right. All right. Let's talk about the last case. As we wrap up. The last case I want to ask you about today is the AutoZone case involving employers providing seating for employees. Can you tell us a little bit about that case and your role in in what was it about?
Eric Kingsley 38:51
So I had a minor role. I was kind of the producer of this. I want to shout out to my colleague, Ari Stiller, uh, he he really drafted the briefs. And he actually argued in the Court of Appeal. I just got my name on it, I guess. But that case was interesting, because the what Autozone did was they are what we brought a claim, claiming that Autozone did not provide suitable seating for its employees. And we were taking the view that like a cashier can sit and go to Europe. Supermarkets are the types of place like that cashiers are almost always seated. For whatever reason in the United States, seating of cashiers even like tellers and banks, until recently, I think you start to see that more when we were growing up by never, tellers were always standing. And the idea is that from a medical standpoint, it's just not healthy, frankly, to stand all day long for eight hours a day. And I don't think we were suggesting that you had to sit, you know, eight hours a day, obviously, there's times that you would have to be doing things and you might be walking around the store, but the idea is that when you could sit you should be able to sit. And so we took the view and the Court adopted it. I mean, in the case of Brinker from 2012, which was this sort of land landmark case about meal breaks the suit, California Supreme Court laid out a standard that you had to provide sort of some kind of a policy document to employees, indicating that they could take breaks, you know that you didn't have to ensure that they got their breaks, but you had to make them available. And so we took the same approach to seating, saying that, and I should say that there's two types of seating cases, their seating case where they say there's no way you could provide seats. And so you have to sort of fight that argument whether the nature of the work is such that it's practical to provide a seat. But this case was they didn't say that it was impractical to provide a seat. They said we had seats, but they were like 100 feet away. And so we made the argument that he didn't tell them that they could take these seats, and you didn't do a good enough job of providing them in the same sense as Brinker. And so the court agreed with that it was a summary judgment that we had lost in the trial court, and it was reversed. So it doesn't mean when actually win the case. But it just means that we get a fair shot in front of the jury to ask the jury whether or not Autozone did a good enough job in terms of providing those seats?
Tim Kowal 41:06
This would be an example of something I had in mind when I asked you the question earlier about good faith employers who are you just want to make sure that they are not running afoul of something I wonder if there's is there some sort of an opportunity to cure in the event that you're not providing your employees something that they ought to be entitled to? Or or whether the law currently requires it or a court may find that the law requires it? Is there an opportunity? Is there some sort of duty on the on the on the part of the employee to give a notice to cure?
Eric Kingsley 41:35
I mean, maybe I think actually, I am trying to think back here to the CNAME record, I'm not sure. So paga has a weird, there's three parts to paga. There's 2699 26 9.3, which has more explanations, and then 26 9.5, which is just a list of statutes. And it's like 60 Plus statutes are listed there. And so those statutes are not curable, and anything else is curable. And so yes, seedings coming out of the wage orders, so may that might not be curable. But But be that as it may, I mean, that's, I think, an interesting discussion about paga is whether or not should be curable. In my experience, though, having filed a few non curable paga claims. In my day. Employers don't cure I mean, right now, currently, nine, my understanding is, I don't know, I could be wrong about this, at least as far back as when my client was working there, they didn't have any kind of a seating setup. And so in many cases, I had a case one time where we filed a case a pirate case, because they did not have a bank in California, where they could cash the check labor code to 12 says that you have to there has to be someplace in the state could be anywhere. I mean, you can have it in your Rica, you know, you know, you can have it in some random rural county, a bank that could cash the cheque that would meet the definition of the statute. And these guys had, it was a very large company, you know, at least a fortune 1000 company that had Bank of New York, and Bank of New York has no branches in the state of California. And we litigated that case for like three years, we had some other claims in it as well, and they did not fix that problem. And so the the problem continued to grow. So it's funny when you talk about employers curing things, it sounds nice, but I've found they rarely take the state up on that ability to cure.
Jeff Lewis 43:24
Wow, they kind of draw the line and stand their ground. Interesting. Yes. You know, I gotta apologize. I stalked you a little bit on Facebook. To prepare for today's interview, I noticed that you were invited to a dedication ceremony for the Dr. Sally Ride Memorial Highway, and it was wondering who's Dr. Ride and how did you come to be invited to that ceremony?
Eric Kingsley 43:46
So my good friend, Jesse Gabriel is in the California legislature. And so they decided they were he represents the sort of West San Fernando Valley west of the 405 to the LA County line. And they were trying to, you know, they're trying to find naming rights, and especially there's most of the transportation infrastructure in the state is named after men. And so if you can find a woman that's that's, you know, deserving of recognition. We want to create some equity, parody balance. And Dr. Sally Ride was the first woman I believe that was in space. I'm remembering this correctly. And she grew up in Encino. And she was a professor, I believe she went to Stanford and then she worked in San Diego and she she died relatively young because of some some ailment I believe in maybe it was cancer, I might be getting those facts wrong. And so that was somebody that clearly, you know, made it up to the highest echelons of NASA, actually, you know, was was in space. And she was a resident Encino and so this was something in the district that made sense to to name after Dr. Sally Ryan.
Jeff Lewis 44:51
Nice. Nice. She was a valley girl who made it to space. Exactly. I don't know about you. I'm really fired up about the reinvigoration of the Moon Landing program the Artemis launch was supposed to happen this week got scrubbed, but fired up and they're gonna have a woman teed up to land on the moon. So I'm fired up about that.
Eric Kingsley 45:09
That will be great. I, if you're any of your listeners watch the show on Apple TV for all mankind. Oh, yeah, that story tells an alternative history we were really invested hard in, in space. And by nine in the 90s. We were on Mars already. So we're, we're way far behind from where that show envisioned us in terms of our space progress. Yeah, yeah. Although
Jeff Lewis 45:28
I've heard that Tesla is working on a program to get us to Mars. And there's, you know, healthy competition between NASA and Tesla in terms of we're not Tesla, SpaceX, I should say, Yeah, this is a great show. And it's a treat to watch us catch up to the fantasy of that show. All right. Well, listen, we've we've covered a lot of topics here today, are there any other aspects of your practice, or embarrassing Law School stories about me that you want to share with our audience? Before we conclude, please embarrassing
Tim Kowal 45:54
lost lots of
Eric Kingsley 45:58
stories. I do have one other interesting case, that's actually in the court of appeals that probably will be argued, either later this year or early next year, dealing with outside sales exemption, we represented them, the folks that actually give you your samples in Costco, the employees that work those booths, and it's actually a third party company that actually provides those employees that they work in the Costco. And they brought in motion for summary judgment on the issue of the outside sales exemption, claiming that they are outside, not working at the headquarters of the company, and that they're selling. And so we oppose it on both grounds today, they're not selling, they're really just, you know, you know, just providing a service and providing samples and so forth. And that also, that outside is crazy that this is really intended for the, you know, Willy Loman type, you know, traveling vacuum cleaner salesman, but the court granted summary judgment, and so we're excited about that case, we feel confident that that court just got it wrong and appeals will will resolve that that's in the First District Court of Appeals, hopefully later this year.
Jeff Lewis 47:01
Oh, interesting. Well, keep an eye on that. Maybe we'll invite you back to talk about it. After that. Maybe winds its way up to the courts. Like can we really end up to the California Supreme Court again?
Eric Kingsley 47:09
I'd rather win it in the first. Yes. Who knows?
Jeff Lewis 47:13
You never know. You never know. All right. Well, listen, Eric, we want to thank you for your time here. I think that wraps up this episode. Again, we want to thank case text for sponsoring the podcast each week, we include links to the cases we discussed using case techs and listeners the podcast can find a 25% discount available to them if they sign up at casetext.com/CALP
Tim Kowal 47:33
and we want to remind our audience if you have suggestions for future guests or issues to talk about on future episodes, please email us at info at cow podcast.com. And in our future episodes, we'll be covering more tips on how to lay the groundwork for an appeal and preparing for trial. Alright, see you next time. Thank you so much.
Announcer 47:51
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.
Legal writing and editing nerds, you may have opinions on this. Benjamin Shatz sounds off on whether the Blue Book or the Yellow Book is the superior form of legal citation.
Ben’s answer: It’s a ridiculous question. There is no such thing as a “superior” citation format. Just an appropriate format: If you are in federal court, use the Blue Book. If you are in California court, use the Yellow Book.
And if you want to stick out like a sore thumb, do the opposite.
Watch the clip here .
This is a clip from episode 36 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.
If you are setting out on a federal appeal, you will need to prepare the record. To help attorneys and paralegals in this task, you can read my article, “Preparing the Appendix in Federal Appeals,” in the latest issue of Facts & Findings, published by NALA.
The link to the article is here: https://bit.ly/3wO1i7A
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.
Ever had an appeal dismissed? It hurts. But there may be a silver lining: the underlying judgment may no longer have any preclusive value. That’s what happened in the published opinion in Parkford Owners for a Better Community v. Windeshausen (D3 Jul. 14, 2022 No. C094419) 81 Cal.App.5th 216.
In that case, a neighborhood group challenged the expansion of a storage facility on CEQA grounds. The trial court rejected the challenge, and the neighborhood group appealed. But pending the appeal, the expansion project went forward, rendering the appeal moot, leading the Court of Appeal to dismiss.
So then the neighborhood group challenged the issuance of a business license to the storage facility, this time on zoning grounds.
The storage company filed a motion for judgment on the pleadings on res judicata and preclusion grounds, arguing the issues in the new lawsuit were encompassed in the final judgment. The trial court granted the motion.
But the Court of Appeal reversed. Res judicata and claim preclusion require a final judgment. But here, the prior judgment, though challenged on appeal, was dismissed on mootness grounds. A dismissal solely on mootness grounds does not result in a final judgment “on the merits” as required to apply the doctrine of res judicata.
Claim preclusion requires a final judgment on the merits, while issue preclusion requires a final adjudication of an issue. (Samara v. Matar (2018) 5 Cal.5th 322, 324.) Here, the court held that an appeal challenging the trial court's conclusions, and then decided by the Court of Appeal, but decided on appeal solely on “a purely procedural or technical ground distinct from an actual determination of the merits,” does not result in a judgment on the merits for purposes of res judicata or preclusion.
The storage company raised procedural arguments against this result. It argued that, if the Court of Appeal had intended its prior dismissal to result in a judgment with no preclusive effect, then it could have reversed the judgment solely for the purpose of restoring the matter to the jurisdiction of the superior court, with directions for that court to dismiss the action. That approach “disposes of the case, not merely the proceeding that brought it to the appellate court.” (County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1005, 78 Cal.Rptr.2d 272, citing Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134, 41 Cal.Rptr. 468, 396 P.2d 924 (Paul) [describing limited reversal procedure].)
But the Court of Appeal did not agree that that approach was required to remove the preclusive effect of the judgment via a dismissal on mootness grounds.
The court reasoned that its holding was consistent with the Supreme Court of California decision in Samara. There, the Court held that, for purposes of the law of preclusion, “a ground reached by the trial court and properly challenged on appeal, but not embraced by the appellate court's decision, should not affect the judgment's preclusive effect.” (Samara, supra, 5 Cal.5th at p. 334.) Instead, the preclusive effect of the judgment should be evaluated as though the trial court had not reached the issue that the appellate court did not reach. (Id. at pp. 326, 334, 338.)
(In a footnote, the court reminds that Samara did not decide what would happen to issues the trial court decided by that the appellant did not raise on appeal. Can the appellant excise the preclusive effect of a judgment by strategically not raising them on appeal? “We caution ... that we take no position on the significance of an independently sufficient alternative ground reached by the trial court and not challenged on appeal.” (Samara, supra, 5 Cal.5th at p. 337, 234 Cal.Rptr.3d 446, 419 P.3d 924.))
The storage company argued that the neighborhood group forfeited its appellate arguments by failing to request a statement of decision or challenge the trial court's tentative ruling on the motion for judgment on the pleadings. Recall that, under California Rules of Court rule 3.1590, a statement of decision must be requested within 10 days of the trial court’s tentative decision.
But don’t be misled: rule 3.1590 refers to a tentative after a bench trial. Here, the court analyzes a tentative ruling on a motion differently: A party's “[s]ubmission on a tentative ruling is neutral; it conveys neither agreement nor disagreement with the analysis.” (Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406, 138 Cal.Rptr.3d 464.)
“We find no merit in real parties’ suggestion that a party must object to a tentative ruling and reiterate every rejected argument in order to preserve those arguments on appeal. (See Schulz v. Jeppesen Sanderson, Inc. (2018) 27 Cal.App.5th 1167, 1179-1180, 238 Cal.Rptr.3d 737 [finding no such requirement with regard to a statement of decision].) Further, we find real parties’ reliance on Old East Davis Neighborhood Assn. v. City of Davis (2021) 73 Cal.App.5th 895, 288 Cal.Rptr.3d 573 and Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 69 Cal.Rptr.3d 105, misplaced. Both of those cases are clearly distinguishable. (See Old East Davis, at pp. 911-912, 288 Cal.Rptr.3d 573 [failure to request a ruling on contentions the trial court expressly declined to reach in tentative ruling results in forfeiture of contentions on appeal]; Porterville, at pp. 911-912, 69 Cal.Rptr.3d 105 [failure to object to tentative ruling or otherwise alert trial court of its failure to expressly rule on an issue results in forfeiture of issue on appeal].)”
I am not sure about this holding. When the trial court entered the judgment here, it had preclusive effect. Had the appellant not appealed, it would have retained its preclusive effect. But the court held that merely taking a notice of appeal, but then failing to get a decision before the corpus of the appeal was destroyed (thus rendering the appeal moot), had the result of eliminating the preclusive effect of the judgment. So the appellant gets a free do-over.
Could an appellant get the same result via a dismissal on other technical or procedural grounds other than mootness? What if the appellant files the notice of appeal, but then fails to pay the filing fee? Or fails to designate the record?
I find this outcome so confusing that I wonder that I may be missing something.
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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Justice Laurie Zelon spent 19 years on the Court of Appeal for the Second District before retiring in 2020 to work on cases as a mediator, arbitrator, and private judge. Justice Zelon talks with Tim Kowal and Jeff Lewis about:
Justice Zelon’s biography at Judicate West and the Court of Appeal.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
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TRANSCRIPT:
Justice Laurie Zelon 0:03
Justice belongs to the community, not just to the lawyers and the judges. So let's bring the community in.
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 0:26
And I'm Tim Kowal on this podcast. We try to provide a resource for trial attorneys. Both Jeff and I are appellate specialists, but we try to split our practices evenly between trial and appellate courts. And in every episode of this podcast, we tried to give our audience some news and insights they can use in their practice.
Jeff Lewis 0:43
And welcome to the podcast and a quick announcement. The podcast is sponsored by case text. He's text is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a case tech subscribers 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 case tax.com/ca LP.
Tim Kowal 1:10
Okay, and Jeff, you and I have been excited for this episode coming up because we have the privilege to bring on justice Lori's Ilan. Onto the show for the first time just as Elon is a former Justice of the Court of Appeal for the second district division seven justice Ilan sat on the bench for more than 22 years, including 19 on the Court of Appeal, just as Elon is legal career after Harvard Law School included an active commercial litigation practice and three years on the Los Angeles Superior Court bench before being elevated to the Court of Appeal. In 2020. Justice Ilan retired from the bench and now serves as a mediator, arbitrator and private judge with Judah Kitt West, along with arbitrations and private trials, Justice Elon provides appellate reviews to litigants curious of their cases, odds on appeal. So just as Ilan, welcome to the podcast. We're so glad to have you join us today.
Justice Laurie Zelon 2:00
Thank you. It's pleasure to be with you. Now, among the many
Tim Kowal 2:03
items on your very long resume, which I had to abbreviate for today's podcast, there's you have many pro bono service awards, including an eponymous pro bono Award, which will we'll talk about all that later. But I wanted to start off, I know that you're an avid reader, and I wanted to know if you had any book recommendations for our audience?
Justice Laurie Zelon 2:22
Well, I do but I am going to betray my background as an English major. The I highly recommend The Collected Poems of Wallace Stevens, there is an answer to almost everything in his poetry. I haven't
Tim Kowal 2:37
made it there. So you have you've gone well beyond my, my reading capacity at this at that early stage of the podcast. So, okay, Wallace Stevens. So can you share with our audience a little bit more about your background, and about your approach to the law and judging? Sure,
Justice Laurie Zelon 2:54
I feel like I've been in the law for a very long time. And when I graduated from law school, I wanted to do two things, I wanted to try cases. And I wanted to figure out a way to be of service to the community. And I was very lucky to find the law firm that would let me do both, and enjoyed litigating and trying cases, which is not always the same thing. In today's world, I had an opportunity to do both, but also had an opportunity to use the skills that I had to do pro bono work, as you mentioned, and also to work on projects that would open the court system and the justice system to more people. That motivated me, has always motivated me and continues to motivate me.
Tim Kowal 3:42
You mentioned something a moment ago about a difference between litigating cases and trying cases. And that several years ago was was a distinction that that opened, opened my eyes a bit and some attorneys, I think would would have their eyes open by it still, can you test out that distinction a little bit more between litigating a case and trying a case?
Justice Laurie Zelon 4:01
Well, in especially in large corporate representation or commercial cases, the odds of going to trial are pretty low. Because at the end of the day, it doesn't necessarily make sense for either party to go to trial. And so when I viewed myself as a litigator, I was getting cases in a position where you could understand whether it was worth taking them to trial, what the value of a settlement might be, and what an approach to settlement might be. And my distinction is then the cases where I actually stood up in the courtroom, in front of the jury or in front of the judge and put my client's case forward.
Tim Kowal 4:39
I wonder if in your experience, you've noticed attorneys who are in my own experience I ever since that distinction dawned on me I kind of used as a tail tail when a an attorney describes him or herself as a litigator or a trial attorney. I can I know to put them in one of two different boxes and and frankly, I'm more of a litigator before I came to to appel Law and I respect a great deal with trial attorneys do and it is a very unique skill set. And one that that I respect very much and other litigators might be the the attorneys who take the case up in the direction of trial. But maybe you need to hand it off to a trial attorney, I wonder if we'll get a little bit more into your new gig as mediator and providing appellate evaluations of cases. But I wonder if you notice any distinction between, you know, trial attorneys and litigation attorneys, you mentioned about getting a case into a posture for settlement. And I wonder if one type of attorney over another has more of an eye toward getting a case towards settlement?
Justice Laurie Zelon 5:37
You know, I think it's individual and a comfort level, some people are very, very happy and confident doing the preliminary work in a case. And by preliminary I mean, everything up until the eve of trial, I don't mean just the very initial stages, they feel that they are in the right place doing that work. And they feel that their skills are good, but they don't enjoy, they are hesitant about actually going to trial. And some people would just assume pick up a folder on the day of trial and go put the witnesses on, because that's where their comfort zone is. And so I think it is a matter of for each lawyer of finding the place where they feel they can do their best work. And going with that.
Tim Kowal 6:27
You also mentioned that when you started out your legal career, you wanted to both try cases and serve the community. And I wanted to talk about that latter aspect a bit. Where did that desire come from to serve the community? And was that was that service? Were you always directing those efforts toward the legal serving the legal community, in terms of where you've eventually created a probe, vibrant pro bono area of your career? or were there other aspects of serving the community? Where did that first come from?
Justice Laurie Zelon 6:56
Well, I either blame or credit depending on who you're talking to my parents for that. And when I was growing up, we lived in a small community. And my parents were always engaged in civic work, or through the religious entity to which we belonged. And that was the model and my brother and I were brought up to believe that that's what you do. That's what's appropriate. And if you have skills or talents, some of them have to go there, because you need to be a good citizen in your community. And so, you know, that was kind of what I was raised with. And it never occurred to me that that wasn't what you were supposed to do. So when I was in college, I volunteered for some groups on campus. In law school, I worked with the voluntary defender's organization, because there was a student practice rule in Massachusetts and did other volunteer work and didn't see how graduating could should change that. So that's the nutshell of where that all came from.
Tim Kowal 7:59
Just as Ilan, you started your career in the trenches doing commercial litigation, and then you went on to spend some time on the Trial Court bench and then the Appellate Court bench. What surprised you when you moved from the Trial Court bench to the to the Court of Appeal? Are there any any big distinctions that that you took note of?
Justice Laurie Zelon 8:18
Well, the biggest distinction in moving from the trial court to the Court of Appeal is time. As a trial court judge, I always felt that I needed to do something in a very timely manner, because people were waiting on it. And things had to move on the appellate court just by the nature of an appeal, the time that spent in briefing and the time that spent preparing for oral argument. And for the issuance of an opinion, you have the ability to metaphorically put your feet on your desk and think about it in a way that you don't always have on the trial court. You also have much more benefit on the Court of Appeal across the board of lawyers who have prepared authorities and are prepared to discuss them with you in a way that a prosecutor and a public defender don't always have. I spent most of the time on the trial court in a criminal assignment. And that's very different because of the nature of the work that the prosecutors and the defenders do, and their case loads. And so that was a very big change for me.
Tim Kowal 9:27
What about so you, I just asked you about differences between the Trial Court bench and the Court of Appeal bench? I wonder if maybe looking at differences over time in the 22 years you spent on the bench? Did you notice any differences in the in the way attorneys practice or the way that that judges decide cases or just the legal culture during your tenure on the bench?
Justice Laurie Zelon 9:50
Sadly, yes, I think that civility took a downturn that people were more willing to burn each other in front of the court and in their papers even in a way that when I was a young associate, my partners would have had my head if I had written some of the things that people feel more comfortable writing. I think that's not good for the system. I don't think it's good for the individuals who practice in it. And I don't think it serves the clients either. And I think that's a sad development. On the other hand, the ability to use resources on the, through the the web and the use the apps that have that make us more productive. I think people were able to find more cases to do more legal research, and to prepare better briefs, because they had more resources instantly available to them than when you had to go to the county law library to find out what happened with a statute. From its beginning to its current iteration. I spent many happy hours in the county law library as a younger.
Tim Kowal 11:04
And now what about any big changes that you noticed when you moved away from the bench and into private judging? Some of the differences I would assume would be obvious, but I would guess that there are there's some, there's some more flexibility that you would have, I wonder, you know, what differences that you anticipated, maybe some that you didn't anticipate?
Justice Laurie Zelon 11:25
You know, the main thing is, the flexibility, being on the Court of Appeal is, as one of my predecessors said to me, you know, it's a great job, because you can work any 80 hours a week you want to. And she had been at it for a very long time when she told me that. But, you know, the private judging gives me more control over my own calendar, and over my own workload, which is a welcome thing at this stage. And I, as I said, I was a lawyer for a very long time and a judge for a long time. And on both of those events, your time is not your own. And now I have the luxury of being able to schedule my time, which is something that I appreciate,
Tim Kowal 12:13
you had mentioned that being on the Court of Appeal, you had the benefit of more time than you did when you were a trial court judge, but you also mentioned that it is still a very taxing job being a justice on the Court of Appeal. So how do you square those two things you get, you get more time, but you still have to put in long hours?
Justice Laurie Zelon 12:30
Well, you get more time to decide your cases is what I mean, that you're not given a motion, which the briefing is complete the day before the hearing. And then you have to decide it from the bench. And that's what parties need and what parties expect. But you have more time to let ideas germinate, to think about things to do some independent research in greater depth than you can on the trial court. So that's what I mean about it. It's, you know, being a lawyer being a judge is a commitment of time. And that is what it is. And we all know that going in. And it's just where your time is spent. I think that is very different from the trial court and the court of appeal.
Tim Kowal 13:13
Yeah. Now, I guess you'd be able to bring in some aspects of both worlds, both the trial trial court world and the Court of Appeal world into mediating cases, sometimes there's a benefit to putting fast deadlines on the parties, you know, make make them decide make them go forward or putting the reins on things and letting you know, being the tea saucer and letting, letting things cool down letting emotions cool. Tim, you've
Jeff Lewis 13:37
just described my perfect nightmare. One day the Court of Appeal decides they're not going to grant extensions of time anymore, ever. That would dramatically change the way we practice law, don't
Tim Kowal 13:48
you think? Yeah. Well, I mean, when just as Elon was talking about the Court of Appeal has more time to decide cases, it may be realized that's probably why the Courts of Appeal are a little bit more indulgent to request for briefing extensions. It's not. When you ask for a briefing extension, it's in increments of 30 days, 60 days, you know, these are long extensions in the trial, you know, in the trial court world, where if you want an extension of time to file a brief, you know, you're asking for a few days. Yeah,
Justice Laurie Zelon 14:17
that's certainly true. But But think about it this way to that if you ask for time on appeal, and it means that you can do a more fulsome job on your brief. It saves having to provide supplemental briefing after oral argument, which is helpful to really anyone. Yeah, yeah.
Jeff Lewis 14:39
Good point, just to see when we've not had a retired justice on the show before to talk about the value of ADR in the context of appeals. Could you share with our listeners, how an appellate lawyer can use EDR to provide value to the client through either a moot court or a Neutral Evaluation?
Justice Laurie Zelon 14:58
Sure, and I think If you think about it in stages there, there are three basic stages to when ADR can be helpful. The first is, after the trial is over during the very short period of time when you're trying to decide whether to file appeal or during the longer time when you file the protective notice of appeal and are deciding how the briefing is going to go forward and whether the case is going to go forward. That's a good time for a neutral evaluation to have somebody say, you know, I know you think that the judge got it wrong three ways from Sunday. But let's look through and see if they're really issues that could be successful on appeal. I think the second stage is when all the briefing is filed, oral argument is coming. And the parties decide, let's like, Let's take one more shot at resolving this our way, instead of having the court tell us what the resolution is. And that would be, you know, a more traditional mediation approach, you know, both parties would come in and you would mediate the case. And the third part, I think, is the kind of moot court mock argument, which can be very helpful. I think, when you have the lawyers, you work with doing moot court with you, they may be more gentle. And they may not be as pushy, as someone who has had to use oral argument as a way to help resolve a case might be and I think that experience of the moot court can be very, very helpful in preparing for oral argument.
Jeff Lewis 16:35
Wow, interesting. I never really thought
Justice Laurie Zelon 16:36
those three phases.
Jeff Lewis 16:37
Yeah, that's helpful. I'd never would have thought of involving a retired justice right after the loss in court in the decision making whether to pursue an appeal or the conversations with the client about Shinju, a peon. That makes a lot of sense to me. Thanks. That's helpful.
Tim Kowal 16:53
Yeah, Jeff, you and I were just talking about that question of, you know, filing that protective notice of appeal. And I will admit that sometimes I filed that protective Notice of Appeal immediately, without just just knowing after doing the due diligence, that it is a it's an appealable order. But once I've done that, I don't want to chance any timeliness issues. So I file it, I haven't necessarily evaluated the issues to determine whether there are good issues, it's a non frivolous appeal, I would hope that I would never file a non frivolous appeal. But there may be some instances where I might not know until I after I filed the notice of appeal, and then start digging into the issues. And I wonder if after that point, I guess that to justice Zealand's point that would be a good time to bring in an evaluator or retired justice to force the parties to start looking at these issues seriously, because going back to the point that appeals can take a long time, and it might be several months before you actually sit pen to paper and work up that brief. So that's a good long window of time to really start looking at Neutral Evaluation.
Justice Laurie Zelon 17:53
There's another potential area where it can be helpful, although the timing makes this, I think makes it hard on the advocates to figure it out. But in some cases, it may be worthwhile, which is the decision whether to take a writ. Obviously, that is a very time sensitive matter. But given the fact that so few writs are granted. The question is, do you really want to spend the time and money to file that writ or not?
Tim Kowal 18:20
Right? Well, so in those instances would would a Neutral Evaluation, would a neutral be able to come in and do the evaluation soon enough to file that writ? Because, as you know, the writ has to be filed yesterday. I mean, you have the 60 days, technically, but the long if you if you're waiting till the 60 a day, you might as well not file it at all as a practical matter, because it's you've really undermined your urgency argument.
Justice Laurie Zelon 18:43
Absolutely. But you know, in theory, if you're filing a writ, it's because a motion has been granted or denied. And the motions probably been briefed. So there is something that you can give to a neutral to evaluate at that point.
Tim Kowal 19:00
I did want to ask you about, about repetitions. You know, a common question that attorneys appellate attorneys ask is what type of criteria appellate justices are using when deciding to grant relief? And I wonder if you could share any best practice tips with our audience regarding rip practice? Well, I
Justice Laurie Zelon 19:20
think the primary thing that gets looked at first is is it going to matter if we grant or deny the writ, because if the course of the case is really not going to change, it's extremely unlikely that it's going to be granted. And I think that's worthwhile to keep in mind that the you know, I know the sting of a loss as well as anyone who's ever gotten the case ready and take it in in the trial court, but sometimes it's really not going to matter. On the other hand, if you have an issue that is going to be dispositive of the case, and if you The decision goes the other way, the case will have to be retried. That's a very good case for read. Because the court does understand that the last thing you want to have happen is have a case get fully tried and then retried, when you could have predicted from the get go that that was a likely outcome.
Tim Kowal 20:22
That is good. I have seen those, those issues come up before. I also wondered about, you know, there are probably a lot of repetitions that get filed by by attorneys who don't file a lot of writs and maybe don't understand the rules don't understand the criteria for getting a writ and, and maybe those are easy calls to summarily deny them. But there are a lot I would guess that were filed by attorneys like myself who think this is really a righteous rip, this is a this really ought to really deserve some some consideration on the merits. And then it gets summarily denied as well. And I wondered if there is a common thread that goes through these kind of almost repetitions, or are there just a lot of hard, tough calls that have to be made?
Justice Laurie Zelon 21:02
You know, it's really just a lot of hard, tough calls. And some of it is trying to figure out whether it is going to matter in the case or not in the long run or whether this is an issue that's going to work itself out later in the case without intervention. But you know, you make an interesting point. Sometimes lawyers who filed writ petitions who are not accustomed to them, those repetitions may get more attention. Because if the panel doesn't want to make a mistake, and very, I can't think of any panel that wants to make a mistake, they're going to look and see if there's anything there that is lost in the fact that it isn't well presented. And so I would urge your listeners to do the very best job you can on a writ petition and tell the court number one, what's wrong. And number two, why it matters. But also to rest assured that I can't think of a panel that doesn't pay attention even to a repetition that isn't well prepared.
Tim Kowal 22:00
That's that's a great tip. Let me ask you a question about COVID. Now, with COVID cases diminishing and courts resuming normal in person operations, do you still offer your services via zoom? Or are you going back to in person? Do you anticipate going back to in person, Once COVID is fully abated? Or do you sense something of a new normal on the horizon?
Justice Laurie Zelon 22:22
I think there is a new normal, I think all of us have figured out by necessity, that there's some things that we used to do in person that we can do just as effectively this way, preliminary issues, you know, in, for example, in the arbitration area where I do arbitrations, there are a lot of things that happen well, before we get to the arbitration hearing itself, and for most of those, the lawyers don't need the time, they do need to take the time to drag down to physical location where I am for us to have a 25 minute conversation about what's going to happen. And I think that's a good thing that came out of COVID. I do think when you're talking about evidentiary hearings, that we need to go back to doing those in person to the greatest extent possible, because it's a lot easier as a trier of fact, to get a good read on what the witnesses are saying and not saying if you can actually see them in person, and I think the flow goes better, as well.
Tim Kowal 23:24
Yeah, Jeff and I talked about a recent court of appeal decision, unpublished decision, but involved a criminal trial that was held remotely over the objection of the criminal defendant. And it was held that that was that was not a prejudicial area was error, but not a prejudicial error. And Jeff, and I were a little vexed that it was not deemed a structural error, because those that sort of thing is so it's so intangible. How do you measure what the harm is from having done a virtual proceeding rather than an in person proceedings, things are seemed very difficult to measure. So
Justice Laurie Zelon 24:00
I think everybody struggles with that. But I think the courts are moving more and more in the direction of live proceedings again, in private judging, I think there is more flexibility to let the parties decide to some degree. And as I said, My practice is if the parties want to do everything up to the evidentiary hearing, by zoom, that's fine with me. But I want to do the evidentiary hearing in person,
Jeff Lewis 24:24
you want to let me let me ask you a related question in terms of oral argument in the Court of Appeal. You know, you're not determining witness credibility there. Did you find that Zoom appearances by lawyers for oral argument in the appellate context when there's no testimony that that was an adequate substitute for in person?
Justice Laurie Zelon 24:43
I don't think it was quite as good and when I talked about the flow of the proceeding, I really was thinking about that. I was a member of a very hot bench, and we questioned people extensively in my division, and there is a floated and knowing when you can break in and when you can't and reading body language. And it's much, much harder to do that over zoom. So I've found the Zoom arguments a little less informative than the in person arguments only because I never felt as if I really got all my questions.
Tim Kowal 25:22
Oh, do you feel it? You feel that you were had a more difficult time getting questions answered over virtual hearings than in person?
Justice Laurie Zelon 25:29
No, because the lawyers were evading but just because of there's a tiny little bit of lag. And sometimes there's over talking that you don't see in the courtroom. And it it makes you a little more hesitant to break in in the way that at least my division was accustomed to doing to lawyers. When we were alive.
Tim Kowal 25:50
Yeah. Well, on the topic of of oral arguments, you know, we've talked about how both Jeff and I have heard panels admonished counsel. Now we've read your briefs, we don't want to hear rehashes of your briefs. I wonder if you have any suggestions for for oral argument, because I've sense on the other side, there's a catch 22. Because on the other hand, you're not allowed to make new arguments for the first time at oral arguments. So on the one hand, you better not be old. And on the other hand, it better not be new. So you have to find a way to repackage old content to make it seem fresh. And then as soon as you find yourself repeating something that was in the brief Shut up.
Justice Laurie Zelon 26:28
Well, you don't want the court to make it easy for you to the I think the answer is that the most effective advocates I saw were the ones who had a theme that they were pulling through that is all of their arguments centered on a basic thought, or a basic theme. And they could link it together that way in a way you don't do in a brief when you move from issue to issue. But I think the most important lesson, and this is it doesn't tell you anything about the first two minutes of your argument, but is listen, because when you have a bench that's asking questions, they're asking those questions, either because the panel is not in agreement on the issue, or it's an issue that the panel wants to hear more on to make sure that the direction they're going in is correct. And the most effective oral argument is the one that answers the questions that the court has. And the least effective oral argument is one where you have a prepared argument and no matter what goes on, you are going to give that prepared argument whether the court wants to hear it or not. And the only other thing I would advise and this happened, I think the about the third oral argument I heard as a Court of Appeal justice, and it stuck with me. So that's why I tell the story is a lawyer was presenting his case. And I asked a question and the lawyer looked very annoyed at the question that I had asked that I had interrupted. And about three minutes later, one of my colleagues asked almost word for word, the same question to which the lawyer responded. Now that's a good question. Well, you can see why I remember it all these years later.
Tim Kowal 28:20
He really didn't like the way you asked the question, I guess.
Justice Laurie Zelon 28:23
Apparently not. So but I think you know, ears open is the best way to go into oral argument.
Tim Kowal 28:31
Here's open. I think that's good advice. Jeff, you want to ask you a question about tentatives?
Jeff Lewis 28:36
Sure, you know, appellate attorneys. Most of our loyal listeners are either appellate lawyers or trial lawyers who dabble in appellate law. And they love tentative rulings, and they love focus letters. And I've seen more and more courts moving towards either from your years on the bench, can you give any insight as to why certain courts are not giving tentative rulings or focus letters? Or what kinds of cases are not suitable for tentative rulings and focus letters?
Justice Laurie Zelon 29:04
Well, I think the it's different between the two because I think, a case where the issues are complex. And if you go one way, it's going to involve three different levels of analysis and to be go another way, it's going to be three different analyses. Those are great for focus letters, because the court can say, here's the central thing I'm grappling with, and a lot will turn on what the answer to that is. And that's a great area for focus letters. The other area where I've seen focus letters be incredibly helpful is where the record is not clear on some point, and often that does happen, and it's a way to get clarification of the record in advance because the lawyers are ready to speak to it. The issue with tentatives is they are great for the lawyers because it allows them to know just as You know, when you go into law in motion and you have a tentative ruling, you know, when you're going to be thinking if nothing else, but you know how to focus yourself is that sometimes the oral argument, it's surprising that we hear things that we didn't expect to hear that actually can turn things around. And if you give a tentative ruling, if you give a tentative ruling, you may never hear those things, because everybody goes down the path that you thought you were going down, and there's less opportunity to see that turning that you didn't see. And so, you know, I think there are good arguments on both sides. I resist the the explanation that some people give that the courts just don't want to be bothered to do the extra work, because in my experience, that's not what's what's driving it. But I think that there are some people who are just comfortable with focus letters, but not with tentative because they're afraid they'll lose something. And some people think tentatives are just fine. And it's going to be up to the panel, where that comfort level is. And I think that will change over time to as the panels change. You know, there are a lot of vacancies in the second district and things may change when there are no appointments. In terms of the approach to that issue.
Jeff Lewis 31:23
I have to say, I'm surprised to hear you say that sometimes you're surprised an oral argument is the sense I get from listening to MCL II I do a lot of appellate MCL Lee, and I hear appellate justices are retired appellate just to say that 90 95% of the time oral argument does not change the outcome of the of the bench memo, it's been prepared. And that in many cases, the party's a bit better served waving or arguments. I'm it's been a great insight. Thank you for sharing that.
Justice Laurie Zelon 31:54
You're welcome. And I mean, those statistics are right that, you know, 9590 to 95% of the time you walk onto the bench thinking the same thing you think when you walk off the bench. But there were enough times in my time on the court where a lawyer brought an argument in a certain way that caught me, just you know, made me say, that's a different way of looking at it than the way I was thinking about looking at it. And I want to go back and think about that some more. And those are important moments. Yeah, I've
Tim Kowal 32:29
heard justice hofstadt share a similar perspective on on oral arguments and focus letters saying to the effect that, that what you just said, just as Ilan, that that one of the one of the beneficial things about oral argument can be when when a good advocate puts the entire case through a different prism or a different theme, and can make the justices see something that maybe was not was not well presented, maybe not not well presented, but just just didn't come across as well in the brief or they found a new way to put it and and a focus letter would just make the advocates laser pointed on that one issue that was addressed in the focus letter and and you would lose that important persuasive vehicle of being able to put the case through a different theme or prison. Let's pivot back and talk about about appellate mediation. And I wanted to ask, because you had you had mentioned justice Elon, that about a couple of examples of good times, that may be good opportunities, potential, potentially, for advocates to bring their cases into a settlement posture. Even at the appellate stage, I have found it a little bit trickier in my cases to get a case into a settlement posture. And I chalked that up to maybe at that point, the the party's positions are too well entrenched in and it's all or nothing at this point. And I wondered if, if you have seen that seen that phenomenon? And if if there are any ways you can suggest to the council to try to tell their tell their clients that they know, you know, an appeal, if you're the respondent, the you know, things can change on appeal. And if you're the appellant, you know, it's it's an uphill struggle. But ways can you can you suggest to get a case into settlement posture when it's on appeal?
Justice Laurie Zelon 34:10
Well, I mean, I think it is absolutely correct that the further down the road on a case you are the more entrenched everyone is in their positions, and the harder it is to get them to see the other side. On the other hand. Delay is something that is real. It just takes time to process and appeal through. And I think in some cases, the parties have been living with it so long that they they really haven't reached the point where they can't stand it anymore, and you're offering them an exit door. But I think the most important thing is that there is a level of uncertainty on appeal. It is a different level of uncertainty than taking a case to trial because the statistic Because about how many appeals are successful, are significantly different from how many trials are successful for the plaintiff. But it allows the parties, I think, to structure, what's going to happen, that an appellant who, whose lawyer says, basically, we've got a shot at it, but I really can't make you any promises. But if we go into mediation, we can seek an outcome that you can live with in a time in a manner that you're comfortable with that that, that is the way to begin to change people's minds is by reestablishing a level of control over the process that they really don't have otherwise. And I think for, you know, certainly for some of my clients, when I was practicing law, the the notion of giving everything up into somebody else's hands was difficult for them. And anything that I could do to bring it back to a position where they had some control over how it would go down, if not, what the outcome would be specifically gave them more confidence and more comfort. And I think that that is a helpful angle to take with a client who really is committed to their position, but is deep into this process.
Tim Kowal 36:31
Do you have any pet peeves? Or have you observed anything that attorneys do that are counterproductive that you wish they wouldn't do? Or which says something that good advocates do that you wish you would see more doing?
Justice Laurie Zelon 36:43
I think my biggest pet peeve is when people misrepresent what cases say, on the theory that nobody's going to go and read the case. And the best advocates don't do it. I mean, if you know, if you're a good advocate, and you say, the case says x, then when I go and read the case, the case is going to say x. But if a brief turns on a certain case, and the case is just sometimes not even close to what the brief says it is, that hurts the position on so many levels. First of all, it lowers the competence of the court and everything else that advocate is putting forward, it makes you wonder why they feel it necessary to misrepresent a case. And it I think shows a certain level of disrespect towards the court on the assumption that the court is not going to put the time and energy into figuring out what the law actually is before rules. And so that's my pet peeve. And I think it's the same in the private context, where you know, there's more flexibility, there's more flexibility on timing, and whether you do let our briefs or formal briefs or things like that, but I think, you know, absolute honesty with the court, or the mediator or arbitrator is critical, and it's hard to get around it once you lose that credibility.
Tim Kowal 38:11
Yeah, I would guess that would that sort of thing of Miss citing a case? misrepresenting what a case says happens more often in the trial court where things are fast, you got to brief this thing fast. And so attorneys may more often just be relying on what it said in the head notes and maybe not reading the full case? I think there would be it would be much harder to excuse that practice in the Court of Appeal when you are given a lot more time to to research the case. Know what it says and faithfully represent what it's holding is. Yeah, I would I think that's a justifiable pet peeve. I wonder if on the other hand, you see too much reliance on cases. Let's say for example, in a case, when a case goes up on appeal, it's probably because the cases are not clear on a certain point. And maybe there's you know, there's one case that says X and the other case, it says Y and the Court of Appeal has to decide which it's going to follow. But in some cases, they're just there's no good case on all fours. And I wonder if in those cases, sometimes one tax attorneys take is to argue, you know, every single case there is out there remotely in the universe of this area of law and say see, it fits in with the majority of these other cases. Other times I wonder if it's just more effective to say, look, here's here's the general principle of law. This is the outcome that really makes the most sense and just rely on an argument and persuasion rather than kind of a doctrinal trying to jam the square peg into the round hole.
Justice Laurie Zelon 39:38
Yeah, you know, if it's really a case of first impression, if there's nothing out there that's on the point, then analogies important, much more important than you know, in 1776. This happened and this follows directly from what happened in 1776. But an analogous situation is often very helpful when they when there's not so much absence of authority, the worst thing to do is to cite 75 cases, all of which say basically the same thing, instead of picking the key cases and the most recent cases in the area so that neither the Justice nor their research attorney has to read 75 cases, all of which say, when you come to a stoplight, you should stop. So but but it's the problem, I think, was saying this fits within within a doctrinal point is that doctrines change, and there's flexibility and the law changes. And so just because there was a case, that was decided that seems similar, and seem to set out a principle, you should cite it, but that's not the be all and the end all. And so really explaining where this would go, what the what the outcome would be, if you go one way rather than another way on the law, I think is much more important, because on the trial court, you're deciding the case in front of you, and you are on the Court of Appeal as well. But because of the Court of Appeal in California, is the last stop for almost every case, the panel always has to say if we decide this this way, what is that going to mean for cases down the road. And in an area where the law is developing, being able to help the court make that decision and see where the path is, is very helpful.
Tim Kowal 41:36
Now, just as Ilan, you we talked a little bit earlier about your commitment to public service and to community service and pro bono work. You've served on a number of public service positions, you were a former chair of the Standing Committee on lawyers public service responsibility, you are a former member of the consortium on law and the public, former chair of its national law firm pro bono project. And you're also former chair of the Standing Committee on legal aid and indigent defendants, I think we can all identify several problems with our justice systems with our justice system. And I wondered if through all of your efforts and activity in in community service, and particularly in the legal profession, I wonder, in your perspective, are all of our problems with the justice system intractable? Or are there some problems that you could you would point to and say, Look, we can actually fix this problem, or at least make some headway toward fixing it? Do we always have to throw our arms up and say, Oh, well, you know, it's just just this intractable problem. And we're just going to be complaining about it until the end of time. I don't
Justice Laurie Zelon 42:38
think we can just throw our arms up and say it's intractable and move on. Because for the people who use the justice system, that's not a solution. If you can't get your problem resolved, if you can't get a fair hearing that has consequences that echo through the society. And when people feel dispossessed, and unable to get justice. The good news is I think if we think about things in a different way, and I've been involved in some efforts to say justice belongs to the community, not just to the lawyers and the judges. So let's bring the community in. Where do people go when they have problems, they often don't go to a lawyer because they don't know what one, they think they can't afford one, or they think they can't find a good one. But for whatever reason, so where do they go, they go, if they have a social workers there often go to their social worker, if they have a religious leader that they're in touch with, they'll do that they go to the public library, they ask their doctors, who are the trusted people in the community that people present their problems to. And let's give those people the information and the ways to connect the people who need justice to a way to get their problem solved. And there are 15 states in the United States that have joined on to a program to do just that to work with people throughout their community. And California has actually been working on that through the Access to Justice Commission for a very long time. And I think we can make a lot of progress, if we, in some ways give up exclusive ownership of justice and take it to the community. So I don't think it's intractable. It's hard, but it's not intractable.
Jeff Lewis 44:33
Your Honor, I'm super busy. I got three opening briefs and a petition for review do in the next 30 days. Do you have any advice on how busy lawyers like me can find time to give back to the legal community and and to otherwise help improve the judicial system?
Justice Laurie Zelon 44:50
Well, the the the funny answer, which people always said to me, was, well, you just don't sleep. But that's not Got a real answer? You know, all of us find time in our day to do things that we want to do. You know, and there are times in everyone's life when they just can't take on one more thing. And you got to, you got to respect that and roll with it. But there are also times when we have time, and looking for opportunities where you can take that time and use it. You know, I was lucky enough, as I said to be with firms that respected my desire to do pro bono, but you schedule it like you schedule everything else. And I don't mean to sound offhanded about this, but it is a matter of scheduling and just setting a priority for some of your time for some of that work.
Tim Kowal 45:46
Yeah, yeah,
Jeff Lewis 45:47
I guess it's easier for older lawyers like me and Tim, and have more control over scheduled and young lawyers coming into it or at the mercy of their bosses. Yeah, my
Justice Laurie Zelon 45:56
kids often wondered why I wasn't home for dinner. But yeah.
Jeff Lewis 46:00
Listen, Your Honor, you've been more than generous with your time. We've covered a lot of topics here today, before we wrap up and conclude the interview. Is there. Is there anything else you want to share with our audience of appellate lawyers about your time on the bench or your current work as a neutral?
Justice Laurie Zelon 46:17
Well, I have to say that I consider myself to be one of the luckiest human beings who walked the face of the earth. Because I had great jobs as lawyers and were was able to do things that I really wanted to do. I enjoyed the trial court. And it was the privilege of my life to serve as an appellate justice. Because if you know if there is a goal in the law to make the law better, that's one of the great places to do it. And I feel incredibly honored to have been able to do it at this point in my life. Going back to solving problems one at a time with people, I think, feels very good to me to be able to take what I've learned over the years and see if I can help people work through something and I as I said, I'm very lucky to be where I am and to be able to do what I have done and plan to do going forward.
Tim Kowal 47:11
Well, just as Elon, we want to thank you once again for joining us on the podcast. And that's going to wrap up our episode we want to thank case text once again for sponsoring the podcast each week we include links to the cases that we discussed on the podcast and using case text links and listeners of the podcast can find a 25% discount available to them if they sign up at case texts.com/ca LP.
Jeff Lewis 47:33
And if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 47:44
We'll see you next time. Thanks again, Justice Zelon.
Announcer 47:46
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes 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.
Should appellate courts mediate disputes? Appellate specialist and mediator John Derrick says that the court’s mission is to “weave the tapestry of the common law,” and you do that by deciding cases, not by settling them. After all, you don’t see the Supreme Court trying to get cases to settle, now do you?
Watch the clip here.
This is a clip from episode 32 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.
After being sued, you have to answer the complaint. That part is obvious. But what about a cross-complaint? If you have cross-claims against the plaintiff, and you don’t assert them right away, can they become time-barred?
Until now, this was a concern. But the recent published opinion in Paredes v. Credit Consulting Servs. (D6 Aug. 8, 2022 No. H048092) holds that the filing of a complaint tolls the statute of limitations for all cross-claims. And the rule applies regardless whether the cross-claim is compulsory or merely permissive.
A collection agency sued Paredes over some dental bills. Based on false representations in the complaint, Paredes had one year to file a claim under both the federal and state Fair Debt Collection Practices Acts.
But Paredes did not file a cross-complaint within one year. Instead, he waited one year and five months. When he filed, the collection agency filed an anti-SLAPP motion, arguing Paredes’s claim was not likely to prevail because of the one-year statute. But the trial court denied the motion, ruling the statute was tolled by the complaint.
The Sixth District Court of Appeal affirmed, holding that filing a complaint tolls the statute of limitations for all cross-claims, regardless of whether the cross-claims are compulsory or merely permissive.
The collection agency conceded that a complaint tolls the statute for purposes of cross-claims that are compulsory. Case law is already clear on that point. (E.g., Trindade v. Superior Court (1973) 29 Cal.App.3d 857, 859-860 (Trindade)).
But there is apparently only one case that applied tolling or relation back to cross-claims that are permissive and noncompulsory — that is, to cross-claims against the plaintiff, but not involving the same subject matter as the complaint. The collection agency urged that that case, ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69 (ZF Micro Devices), is an “outlier.”
Writing for the panel, Justice Danner, disagreed, and approved ZF Micro Devices. The ZF Micro Devices court acknowledged that "authors of major California treatises had expressed conflicting views on the subject" (id. at pp. 72-73) such that the "applicability of the tolling doctrine to permissive cross-complaints [wa]s not free of doubt." (Id. at p. 84.)
But as ZF Micro Devices also noted, the Supreme Court has characterized the tolling doctrine as embracing all cross-claims, “regardless of their relatedness to the claims asserted in the complaint." (ZF Micro Devices, supra, 5 Cal.App.5th at p. 91.) And "the rationale for the doctrine—that by filing the complaint 'the plaintiff has thereby waived the [statute of limitations defense] and permitted the defendant to make all proper defenses to the cause of action pleaded' [citation]—appears applicable to both compulsory and permissive cross-complaints." (Id. at p. 92.)
When assessing options after being served with a complaint, if cross-claims exist, asserting them early is usually a good strategy. But if for whatever reason a cross-claim is not asserted immediately, Paredes provides some assurance that the delay may not result in that claim becoming time-barred.
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.