“The incentives are out of whack,” says Eric Post, a tenant’s rights attorney with BASTA, Inc. The past two years have seen a dramatic increase in evictions, he says. Why? Because that is the simplest way to raise the rent.
Eric talks with Jeff Lewis and Tim Kowal about the flaws in California’s landlord-tenant legal system, the near-impossibility of staying eviction judgments pending appeal, and the important differences between appeals in the appellate division and the Court of Appeal.
Eric also explains why it can be fairly easy to forum shop a case up to unlimited civil.
Finally, the discussion turns to Judge Carter’s bold effort to solve a piece of the Los Angeles homeless problem via injunction, though ultimately reversed by the 9th Circuit last year.
Eric Post’s LinkedIn profile.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
Receive a 25% lifetime discount on Casetext at CaseText.com/CALP.
Eric Post 0:03
But in evaluating appeal, I feel like I have a pretty good sense. What is never going to work with this with this panel and what is going to be a guaranteed winner.
Announcer 0:12
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news cutting from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Tim Kowal 0:26
Welcome, everyone. I'm Tim Kowal.
Jeff Lewis 0:28
And I'm Jeff Lewis. The California appellate podcast is a resource for trial and appellate attorneys. Tim and I are appellate specialists, but both our practices are split about evenly between trial and appellate courts. In each episode, we bring our Totti, our audience practice tips and legal news they can use in their practice.
Tim Kowal 0:45
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Jeff Lewis 1:09
All right. Today we welcome attorney Eric post to the show. Eric has been involved in the housing and homeless rights movement in Los Angeles since 2011. advocating for the rights of tenants, but also the rights of unhoused communities to access social services and public benefits to be free from criminalization and discrimination and to remove barriers and access to housing. are currently serves as a senior tenants right attorney and the director of the appeals unit for the Los Angeles based nonprofit basta Inc, where he represents tenants and appeals in complicated eviction cases. And an affirmative case is holding landlords accountable for slum housing, discrimination, illegal overcharging and harassment. Eric is a proud graduate of Howard University School of Law. Eric, welcome to the podcast.
Eric Post 2:00
Oh, gentlemen. Thanks for having me. Yeah.
Jeff Lewis 2:03
So tell tell me, is there anything about you or your practice that of note that I left out of your summary that I just read about your background?
Eric Post 2:11
No. You know, at this point, about 90% of my practice consists of representing tenants appeal, most of it is with the Appellate Division and Superior Court with a growing number of cases before the Second District Court of Appeal. A lot of this work involves a lot of provision of technical assistance to trial level attorneys, as well as technical assistance to other organizations in the county in the state who are pursuing appeals. So that's kind of you know, the, the rest of my practice is a little bit of the you know, as I indicated, the some of the affirmative cases and some of the more complex, unlawful detainer matters. Okay.
Tim Kowal 2:46
So whenever I see a word in all caps, like bosta, I think acronym, it's gotta be an acronym for something. What is Boston?
Eric Post 2:55
You know, that would that would make sense, but no, no, it's not actually an acronym. bosta in Spanish means enough, or stop. And it's kind of an expression that people use when they're, they're kind of fed up. And so boss dB, for example, is enough. And that's, that's where the name comes from.
Tim Kowal 3:18
Got it. I like it.
Jeff Lewis 3:20
All right. Did I read somewhere that bosta pioneered a strategy of having tenants facing eviction invoke a jury trial?
Eric Post 3:29
Absolutely. And that's really what we that's the main thing that we've kind of done to change the tenants rights movement here in California. Our director, Danny brims on he was previously a trial attorney working at Christianson, Miller Fink Glasser wheel, which I believe is called last wheel now. And you know, he just, you know, some of the cleaning crew at his office kept asking him for to look at legal papers, when they were facing eviction. And he, he decided to jump in and start helping out some folks. And, you know, through kind of word of mouth, he soon became inundated with tenants asking for his help, and began taking more and more of those cases and realizing that there are both a lack of access to services available for many lower income tenants, especially those without feeling valid immigration status, but also, you know, that there are innovative ways that we can fund tenant representation. So yeah, I mean, you know, so so, you know, because we had some of that background of attorneys coming from non legal aid organizations, you know, that brought in a lot of new blood and insight into the tennis rights community. And rather than kind of adopting the kind of old tactics and strategies that were kind of more typical of legal aid organizations, we brought kind of a more kind of big law perspective into that including a more aggressive approach to eviction litigation. So part of that was requested jury trials, which is always a really valuable approach.
Tim Kowal 4:57
Eric, you mentioned that Boston He uses some innovative ways of funding these tenant rights lawsuits. What? Give us an example? How are you funding these tenants rights lawsuits where, you know, we're other attorneys might not who might be willing to step in just can't do so because of the economics,
Eric Post 5:13
certainly. So we're nonprofit, and you know, many traditional legal aid organizations, they're funded by the federal Legal Services Corporation. But due to a lot of messy politics, racism and hostility, that those who represent poor people, a lot of funding through the Legal Services Corporation comes with a lot of strings, and namely the prohibition on representing most folks who lack invalid immigration status. And, you know, so so that excludes just a huge amount of our communities. And then also, you know, foundational funding can be really onerous, to secure and you have a lot of nonprofits who who end up spending more of their time trying to chase grants rather than actually providing the services. And sometimes those come with their own strings attached, that kind of limit the sort of work that can be done and the sort of tactics organizations can employ. So you know, a lot of people within the, you know, access to justice movement have been trying to find alternative methods to support their work outside of the traditional grant chasing and the Legal Services Corporation. So, you know, bosta, we have historically upload employed a, what's called a low Bono model. So our clients usually pay us like a flat rate. For full scope representation, it's usually about one month's worth of rent, give or take a little. And there's also a contingency agreement if a monetary settlement is reached. And there's also as part of that an agreement to assign us the right to collect on any attorneys fees. So you know, this, this allows us to kind of avoid a lot of the restrictions that would exclude much of our client base who are traditionally immigrant Latino families. So you know, but as you can imagine, you know, like $800, for full scope representation, including aggressive discovery motion practice extended jury trials, this this often means that we're operating at a loss. So So attorney fee recovery is really crucial to our work. And we aggressively pursue fee motions. And a good portion of my appellate work involves fee recovery. It's also like a good deterrent for, you know, landlords who are filing frivolous cases. But you know, even with fee recovery, access to justice for poor folks is costly. So we also have kind of pioneered the shifting of these cases from just a defensive position to actually after we represent a tenant and prevail on defending against an eviction, we then turn around and we sue the landlord for a grossly substandard conditions harassment, violation of local law, and that those lawsuits can subsidize the direct tenant representation that we do on our eviction cases. Interesting. Yeah, we've recently actually took our one kind of foray into accessing governmental grants. And we're currently receiving some funding through the county's stay housed la project, which is trying to provide free legal representation to low income persons facing evictions. It's not without its hiccups, but it has allowed us to, you know, provide access to justice for a lot of folks who, because of the COVID crisis, can't even afford to pay that one month's rent.
Jeff Lewis 8:11
Wow. Well, listen, I know a lot about appeals. I've done over 200. I know next to nothing about appealing to the Appellate Division of the Superior Court. So can you tell us, first of all, how many of your cases go up on appeal? And when you appeal these eviction cases? What issues come up frequently?
Eric Post 8:29
Well, you know, it's, it's interesting. So, you know, the Appellate Division is only for the limited unlawful detainer matters. And, you know, the way that it's valued is it there's a lot of fallacies in terms of the valuation because, you know, especially in a rent controlled market, like the value of a tenancy can be really large, it could be, you know, six figures or more even. But, you know, of course, you know, the complaint gets to determine whether it's limited or unlimited. With a couple of little exceptions. We're seeing a growing number of cases being filed in unlimited, and that's bringing us into the Court of Appeal more regularly. But as a general matter, we're going straight into the Appellate Division on most of our cases. And, you know, there's a number of different issues that come up a lot in our appellate division cases. You know, as I mentioned before, a fair amount of my my practice involves fee recovery issues. And, you know, the advantage of pursuing those appeals is that you can get fees on fees. So they're, they're kind of self supporting. And, you know, outside of that, you know, what, what I have been dealing with a lot, especially the last couple of years are fairly recent laws that have been passed that courts have really struggled to implement and enforce so often, you know, often it's really basic appellate practice in terms of just going through statutory construction principles, and being able to kind of identify the kind of legal calculus that courts are supposed to employ and kind of how they they fail to employ that legal calculus.
Tim Kowal 9:57
Yeah. Let me ask you if you're good you I mentioned that I had two questions based on on something you said that a growing number of these eviction cases are actually being filed as unlimited civil cases. And can you give us an example of how that happens is that just if there is an allegation of back rent that exceeds the statute, the jurisdictional minimum, then that can take the entire eviction action into unlimited civil?
Eric Post 10:21
Yes, absolutely. And that, and that's what it is. And that's those are the cases that we're seeing now are those cases in which rent is accrued? So significantly, or the the rent in itself was pretty, pretty large, that it adds up pretty quickly and gets over that threshold
Tim Kowal 10:36
amount? So it sounds like you are seeing you're you're working a lot, both in the Appellate Division of the Superior Court and in the Court of Appeal, what are some important differences that you're seeing, you know, are you having to kind of juggle and make sure Wait a minute, I'm in I'm in the Court of Appeal on this one. So the rule is different.
Eric Post 10:53
Well, you know, so yeah, exactly. And it's the nuanced. It's just the small rules. You know, I mean, most of the differences are fairly minor deadlines are shorter, word clap, word count limits are lower.
Tim Kowal 11:04
You're talking about the Appellate Division, correct? Yes, exactly.
Eric Post 11:07
Some of the things that are required in Court of Appeal briefs aren't required for briefs in the Appellate Division in formatting is different, like, for example, like the Appellate Division and doesn't currently do e filing. So we don't have to worry about the stuff that that is the bane of the existence of an appellate attorney of doing all the bookmarking and hyperlinking and all the other stuff for submission for electronic submissions with the Court of Appeal. One of the biggest differences that I generally deal with is that, you know, I generally deal with the same four judges every day, rather than, say, eight different divisions with four different justices, each within just the second discharge, this can be both a great thing, but also a discouraging thing. You know, a small fraction of decisions and the appellate divisions get published, and they generally don't like taking judicial notice of prior opinions that are unpublished. So you know, that that that often leads to inconsistent decision making and evaluate, but but in evaluating appeal, I feel like I have a pretty good sense, what is never going to work with this with this panel in what is going to be a guaranteed winner. And, you know, although I probably ever since I start, I started this project with bosta, I, you know, I probably have accounted for about 15 to 20% of their caseload. And, you know, while I've made their job more difficult, I know, they respect my work, and they appreciate the time and the thought I devote to them, and especially, you know, considering that the opposing counsel, and a lot of these cases, just don't really respect that appellate representation is different than trial level representation. So that always kind of puts me in a good position. But you know, I mean, I guess a lot of it is just the kind of certain benefits of being a big fish in a small pond. And, you know, it also allows me to kind of try again, on certain issues and see if I get a different result, which which does, in fact, happen. But you know, in terms of, you know, a lot of it is just the smaller minutia of your appellate briefing and the processes. It's, it's really just the differences in deadline, you got to use a different font, you know, formatting requirements are different, but substantively, it's identical. You know, we're dealing with standard review, dealing with summary facts, we're dealing with substance, we're dealing with appealability. We're dealing with miscarriage of justice and harmful air. You know, it's all the same sort of stuff that you would engage with in any appellate representation.
Jeff Lewis 13:29
Well, can I ask you when you're involved in an appeal in the Appellate Division, at that point in time in the process? Are you still dealing with possession? Is that being litigated? Or is possession done with by that point?
Eric Post 13:41
That's, that's one of the most depressing aspects of unlawful detainer appeals. So unlike a lot of other contacts, there is no automatic stay, even if you try to post a bond, even if you do anything like that. So as a result, most attendants in my appeals have already been removed from their homes. And, you know, we can seek a stay pending appeal, which we almost always try to do if the family doesn't have another place to go. But you know, there's not real there's not a lot of substance in terms of limits on a trial courts discretion on whether or not to grant that stay. And it's really enraging, because it's like frustration of the purpose of the appeal doesn't matter, the fact that a family is going to be thrown out on the street and has to pitch a chance or live in their cars. You know, that's not extreme hardship for a lot of judges for some reason. And when those those states pending appeal motions are denied, I then you know, tried to do a writ to the Appellate Division and the Appellate Division basically comes back and says, This is as discretionary as it gets. So we're not going to, you know, put a bound on the the trial court's determination on whether a stay pending appeal is in the interest of justice or the equity support such a determination. It's really depressing now.
Tim Kowal 14:58
You mentioned the standard for Getting a stayed pending appeal of a of an eviction judgment and its its extreme hardship to the tenant. Let's go to civil procedure 1176. I've tried. I tried to get a stay once in my career under that it was not successful, even though I thought I had a very sympathetic case. I don't know of any other standard in the law that uses the word extreme in in the statement of the standard extreme, it's not merely unreasonable. It's not merely unusual. It's extreme. Have you? Do you have any are there? Is there a typical case or an exemplar case? Have you had any cases that met that standard of extreme hardship to the tenant that would suffice to get a stay of the eviction judgment pending appeal?
Eric Post 15:44
In middlee, most of the times that I have obtained a stay pending appeal, it's because the landlord attorney did not oppose it. And so it's really discouraging. And I've had one of the kind of horror stories in terms of a stay pending appeal is that I had a set of different appeals dealing with the exact same issue with the exact same building with near identical everything effects. And, and one of the appeals we had already prevailed on and the Appellate Division came back and said, this was not a proper eviction. And, and that because they the building was wasn't a legal unit and didn't properly register and comply with local law. So, you know, I had this other case that was pending, you know, my trial trial attorney colleague, does judicial notice to try to get in front of the trial judge the, this this recent Appellate Division decision saying, Hey, this is going to be reversed. And then we do a stay pending appeal. And, you know, the client was going to go straight onto the street, you know, limited English proficiency, you know, disability, you know, and literally had no place to go was going to just sleep in his car, and the writing was on the wall, we knew that the reversal was going to happen. And and everybody knew it, it wasn't something that we can really turn the blind, blind eye to. And not only did the trial judge just find that, you know, that landlord, recovering possession for an illegal building was something that was so pressing, and that, you know, homelessness, and a frustration of appeal, when we know that it's going to be reversed, that that's not extreme hardship, sufficient extreme hardship. And and like I said, I went to the Appellate Division on that one I did, because less than 76 has a statutory read, I did a a statutory read, and the Appellate Division basically came back and said, Well, you know, the trial judge didn't feel it was enough. And, you know, extreme hardships, as Tim identified is such an amorphous standard, that we're not going to provide any balance to that we're not gonna, you know, limit the discretion in any way or form. So if you so it's really discouraging. Now,
Tim Kowal 17:48
if you can't count on getting a stay of the eviction judgment pending appeal. How much does that depress the not only the chances, just the practicality of going up on appeal? I bet every now and then I'll have I'll have a attendant call me and, and wants to appeal an eviction judgment? You know, and I'll say, Well, what, what do you want? Do you want more than just money? Do you want possession back? No. Sometimes they'll tell me Yeah, I want possession back. Is that practical? Does the after a successful appeal on behalf of the tenant, are they sometimes rewarded possession?
Eric Post 18:20
It's really discouraging. And I think I think, you know, part of your point is kind of the utility of some of the appeals. And I think, you know, one of the reasons we would pursue a particular appeal is because it has a potential issue that are going to that is going to impact other tenants, in other cases, not even necessarily for the help that discreet tenant, but you know, after you prevail on appeal, you can seek restitution. And, you know, unfortunately, that's also a highly discretionary determination. So so the sort of, you know, recovery for restitution is, you know, the range is huge. But, you know, there there is some interesting case authority, the issue is and often as a strategic perspective, after we prevail on appeal, we'll ask the landlord like, Hey, do you want to put the clients back in there, and almost always, the landlord is gonna say, Hey, I rented it out to somebody else. Now, you know, courts with their equities are, you know, rightfully not going to dispossess an innocent third party tenant to put back in somebody. So generally, the only real remedy is money. And it's a highly discretionary determination. It hardly compensates the tenants for any of their injuries, but at least provide some sort of of restitution for it. Now another option rather than doing a restitution motion throughout its through that case is to file a separate civil suit and, and usually on basis of breach of contract, you know, breach of covenant Fair Dealing, things like that.
Tim Kowal 19:51
What are you seeing Eric from your colleagues on the other side of the table the the attorneys representing landlords are they are they are there, are there lessons that you would like to impart to them maybe a perspective of, you know, maybe have some have some sympathy for these tenants, especially in a COVID. area, or are they just, you know, doing what their ethical duties of zealous advocacy require on behalf of their landlord? Clients?
Eric Post 20:19
Yeah, I mean, I think I think when it comes to landlord attorneys, generally it is they're just hired Dunn's and they don't really, in many of them, I'm of the view just kind of employ a cognitive dissidence to the consequences of their actions. But you know, and I don't I don't have too much respect for for people who have evict families for a living, particularly when the reason why people are getting evicted is because their disabilities, stagnant wages, unemployment, COVID, things like that. And you know that the thing that that we have to deal with a lot when it comes to landlord attorneys is that you know, many of the attorneys, you know, they spent decades largely bullying tenants and winning on default, or going up against pro PERS. And as a result, they're just sloppy. Most cases that are won by tenants, both, both at the trial level and on appeal are won because the landlord or their attorney could not draft a legally sufficient notice and couldn't complete the Judicial Council form complaint correctly. So I think a lot of landlord attorneys, if they actually spent a little bit more time investigating the case prior to filing and devoted some attention to like doing legally sufficient notices and complaints, the entire system would work better. But what we see is a lot of sloppiness, and, and once they're faced with substantive opposition, they generally just flail and disparage tenants. And that often is not very persuasive to judges and juries. Interesting. But one thing that's really important thing to remember about is the incentives are just out of whack. You know, why would a landlord attorney spend more time on a case when they are likely to win on a rubber stamp default, or go up against a pro per or an unskilled inadequately trained and under resourced attorney? I mean, why why if you can evict a family of four a filing fee and a couple 100 bucks for an attorney to prepare your documents? Why Why would you have that attorney do any more work any more diligence when most of the time they're gonna win anyway? But I think I think if they just spent a little bit more time on the front end evaluating the cases, and you know, examining the landlord's case file to determine if there are any potential defenses, it would it would make everybody's job a lot easier if they just spent a little bit more time on that upfront.
Jeff Lewis 22:36
Or does bosta ever get involved in amicus brief paying for tenant tenants rights issues that might be pending in the Court of Appeal or the California Supreme Court?
Eric Post 22:45
Sure, sure. You know, although, you know, the problem is that eviction cases rarely even get to the Court of Appeal. So that's one of the much less the Supreme Court and you know, the Appellate Division usually doesn't see Amicus is very helpful. And to their credit, for many cases, it really is completely unnecessary. But there's a network of organizations across the state, largely connected through the Western Center for Law in poverty, and we all kind of sign on to each other's Amicus is or an MCI and when time permitted, you know, all actually submit a brief and supportive another organizations case. But it's it's usually done by you know, a couple of organizations will put together an amicus brief and then get support from a number of other organizations across the state.
Tim Kowal 23:31
Now, Eric, last year, we had one of your colleagues, Fran Campbell on the show to talk about whether there was an eviction tsunami on the horizon. And at that time, Fran told us that the the various moratoriums on evictions were working and so she she had not seen an eviction tsunami and did not see one on the horizon. Now that a lot of the COVID restrictions and moratoriums on evictions are being eased or removed. Do you see any changes to that? Are there going to be we're going to see more evictions on the horizon or due to falling? Market? falling and falling housing prices tend to offset that?
Eric Post 24:10
Yeah, I mean, we're already seeing a dramatic increase and and it's not just about nonpayment cases, it's about all sorts of of often very pretextual cases to be able to remove a tenant so landlord could raise the rent up to market and landlords are getting a lot of pressure in that regard. We're seeing a radical uptick over this past couple of years of illegal evictions and kind of illegal lockouts and kind of more belligerent actions by landlords to evict their tenants because they're desperate. But, you know, we're starting to see a big increase because of the expirations to the moratoriums and, you know, for a lot of a lot of families, you know, they were struggling to keep their housing before this crisis. And you know, this hasn't changed much and the legislation that was passed largely just kicked the can and down the road based on the premise that families were who were already struggling with somehow be able to pay back all the background. And you know, even though the state passed this rental assistance, it was never really about assistance for tenants. And it was always a program to ensure that unlike every single other business and investment that landlords do not experience any losses due to COVID. And that their their profits are just guaranteed. But you know, landlords have been resistant to the program, and the program has been riddled with unclear inconsistent and inaccessible processes, leaving many leading many tenants to have their assistance denied. But you know, I mean, what what we see a lot is, you know, the note, all too often, the courts in the legislature operate on the premise that a case that is about non payment of rent is actually about getting the money. But we unfortunately know, all too well, that that's not the case. If that was the case, then we would be settle most cases by a tenant just paying the money and being able to stay in their home. But the incentives are out of that. If you remove a family, you can raise the rent of the market to whatever you want. So if you have a long term tenant who is paying 800 bucks a month, and you can replace that with a new tenant who's going to pay $2,400 a month, you're going to use any tool in your possible to be able to evict that tenant, even pre tax even. And it's never about the money, or at least in terms of the outstanding rent that the case is based on. Right. So it sounds like what you're saying is it's really discouraging, and we're
Tim Kowal 26:37
more sorry, it's it sounds like what you're what you're talking about here are two different incentives or two different ends of the policy. If the legislature wants to help tenants by imposing rent control, for example, they also have to consider making sure that they don't get there while their rent is remaining the same. They're going to get a 60 day notice to quit stapled to their door.
Eric Post 27:00
Yeah, exactly. Exactly. And that's, that's one of the most important things. One of the biggest barriers for tenant advocates is the cost of Hawkins Act, which was an act li passed in the 90s to to limit the ability of local communities to adopt certain forms of rent control. And one of the aspects is was to restrict what's called vacancy or it was to provide a right to what's called vacancy decontrol, which is if you got a vacant unit, you could raise the market, whatever you want. There are many other states, including New York, for example, that do allow for local communities to have some restriction on what the new rent can be after you evict a tenant. And, you know, research has demonstrated that that has significantly reduced pretextual evictions because I mean, if a landlord wants the money, take the money. But all too often the money they're really chasing after is not the money that is owed to them by the tenant. It's about the the expectation of future rent receipts from a new replacement tenant. Hey, let's go.
Jeff Lewis 28:11
Let's switch gears for a second. We've been talking about landlord tenant work. Let's talk about homelessness for a second. Are you involved at all with pastas work for I guess I should say beyond housed? Yeah,
Eric Post 28:22
yeah. You know, so you know, I'm one of the only people in my organization who has done both work for tenants, and then also work who are a floater for those who are on housed. So I'm often involved with our whenever our work overlaps. But you know, one of the things that kind of come to remember when it comes to addressing homelessness is that, you know, we need to focus on both the outflows in the inflows, ie like, like both what helps folks living on the street get into stable housing, but also what helps prevent families from becoming homeless in the first place, we most of our work, or, you know, pretty much all of our work is focused on the latter, and primarily defending its tenants AGAINST EVICTION. So you know, a family that who gets evicted without a place to go, they're homeless. And, you know, if our, if our clients have a place to go, we can settle the case. And usually that's available, but if not, our work defending that family is to prevent another family from ending up on the streets. Now, you know, and there's a lot of research about how if you can put that it takes far less resources to prevent families into going into going into homelessness than it is to get families out of homelessness. And often, for many families, we're just talking about a couple months of rent. So it's, it's just, you know, somebody got sick and they're out or their hours were cut or something like that. And they may be able to get their head above water. And you know, so they just need a little bit of help and a little bit of time, and then there'll be able to maintain them housing, and So yeah, we, you know, we mostly focus on the inflows and in what pushes families into homelessness, and what can we do to stop families from even going into that step?
Jeff Lewis 30:09
We've been following this litigation that's been pending for some time before Judge David Carter against the city of LA regarding finding beds for the announced.
Eric Post 30:21
Absolutely. And, you know, I mean, it's been a little outside of my work and foster, you know, because we haven't really been directly involved with that matter. But, you know, I, through through my outside work mostly with the National Lawyers Guild, and, you know, I've been following the matter. And, you know, I'm in real strong support for the intervenors. In that case, the Los Angeles Community Action Network, as well as the downtown Women's Center. And, you know, it was it was a really problematic case from the big the gecko. And it was a, you know, business association, you know, kind of presenting itself as a grassroots organization, who wasn't really concerned about the experience stuff, people who are on housing was more concerned about being confronted with visible homelessness. And, you know, many of them that, you know, had the privilege of being able to ignore, and not have to see extreme poverty within their own communities. And, and, you know, now that the homeless crisis is just exacerbated, they just don't want to see it. So that's where a lot of the case even came from. It wasn't even wasn't something actually out of concern for unhoused. Folks, it was always about, you know, how do we make middle class and upper class and business interests not have to see the problem? It was never about any sort of kind of help.
Jeff Lewis 31:41
Let me ask you, let me push back a little bit on that, Eric, the fact that this lawsuit was filed, and teed up for Judge Carter to roll up sleeves and try to do something, wouldn't you say just the filing of the lawsuit itself? was a force for good in terms of trying to solve this problem or no?
Eric Post 31:57
Well, I think I think there's some truth to that. I think it certainly put some some some fire under the relevant agencies to get get their stuff together.
Jeff Lewis 32:06
Yeah, let me let me say, I monitored from afar this docket, okay. And I would see these docket interesting entries where you'd see judge Carter saying, hey, mayor, the city of LA come on down to my courtroom for a MSC next week. I've never seen anything like it.
Eric Post 32:23
Yeah. And I, you know, there's something there's something kind of cool about that. And, you know, I think of a lot of civil law, legal systems in which judges have a lot more of an investigatory role. And, you know, as a result, that produce often produces more long term results than, you know, just discrete litigation. And, you know, there were a lot of really good suggestions in his order. In the injunctive. Order, it was just, you know, and a lot of a lot of which I think were long overdue, I think, you know, some auditing and transparency and accountability for the ways funded funds that have been slated to address homelessness are being used as has been needed for a long time. And let me just say, it's just a benefit rating. Can to this core?
Jeff Lewis 33:09
Yeah, let me just say for the benefit of our audience who may not have read it, you know, a year or so ago that Judge Carter issued this far reaching injunction drawing lines between systemic racism and the current homeless problem in the city of LA and forcing the city of LA to spend serious money and resources to fix the problem. The Ninth Circuit ultimately reversed that injunction. So he went too far. And Tim had a write up about that, that we'll post in our in our show links, but I thought there were some great suggestions in that injunction. I don't know if the current settlement incorporated some of his aspects there. But I also know certain people have appealed the order approving that settlement. So the litigation is not even settled yet.
Eric Post 33:51
Yeah, yeah, it's a mess. And, you know, I mean, one of the things that is, is really a challenge for a lot of advocates is that many of whom have spent decades using research based practices and data to be able to identify some of the barriers and the sorts of systems that can actually address people's needs. And you know, so then, you know, Judge Carter comes in and he says, Okay, let's do something completely different. And let's shift resources from what you're doing in that regard to just kind of one size fit all solution of let's just put people in shelters. Well, anybody who's ever you know, worked with enhanced folks never been to shelters know that shelters rarely lead to stable housing, and often are horrible environments that that actually deter people from accessing services and impede ability, it often can impede the ability to get in a more stable financial situation. For example, if you gotta if you gotta wait outside of the shelter at 330 in the afternoon line around the block, you know, that's going to impede your ability to go to a job and Have you at four in the afternoon. And if you're not in that line, you don't have a place to stay tonight. Now, you know, theoretically, with the expansion of more shelters that that that would have been less of a barrier. But that's just one very common situation that people who have to rely on shelters experience when trying to deal with medical appointments, job interviews, and all sorts of other logistical concerns.
Tim Kowal 35:20
Well, and before we leave the issue of homelessness, why don't we just go ahead and have you solved the homelessness? Tell us No. I mean, what is it, you know, based on your career and working in these issues concerning tenants rights and and some homelessness issues? Do you have any, what is your opinion on what kind of the root cause is? Is it? Is it something like income disparity? Is it Al Gore's allocation of resources issue? Is it simply a insufficiency of available housing? What What's your take on it?
Eric Post 35:51
Well, you know, I mean, I, in you know, I guess my politics can really show here, you know, I mean, you know, homelessness is very much a natural result of a system that prioritizes profits and prioritize in rather than providing support. And, you know, I very much come from a perspective that that housing is a human right and should be respected as such, and it's an essential need, that should be something that we provide as a society. And, you know, but but one of the things that's always really upsetting about the discussion about ways to solve homelessness is, is as I mentioned before, is so much of the focus on the outflows rather than the inflows and the sort of inflows are, you know, lack of representation, eviction, lack of rent and tenant protections, as well as stagnating wages, a social safety net that is practically non existent and woefully insufficient. It's been a number of years doing social security work, and, you know, I would get a client social security assistance, and there was nowhere that they would ever be able to rent with, you know, with a, you know, a 900, something dollar, so, SSI payment. And so a lot of just the disparities there,
Tim Kowal 37:01
and about mental illness and substance abuse, that's got to account for a huge proportion of the homelessness at least.
Eric Post 37:08
Well, there's, there are two aspects of that. I mean, one is, is like I said, I mean, there's a social safety net, that is woefully insufficient. I mean, even to the folks who are lucky enough to get Social Security Disability, you know, the money is just woefully insufficient to actually address any actual needs. But you know, a lot of it too, I think there is a, you know, much of the data as to the presence of people with disabilities, particularly mental health disabilities, and people who struggle with addiction, a lot of a lot of the data actually shows that it's actually not as sizable but as a percentage as what we see when we see the so called visible homeless, you know, most homelessness exists in families sleeping in their cars, sleeping in garages, things like that, so called visible homelessness is that's the, that's the tents and stuff, those are the people who can't even handle those sort of other alternative living arrangements. And so that's what they're just more visible. At some level, you don't know that somebody's homeless, when they're walking down the street, you can suspect it when somebody is a hot mess because of the symptoms of their disability, or they're struggling with addiction. But you know, one of the other really upsetting parts of this discussion is that, you know, often there's so much of a focus on the development of new housing. And the thing is, is that, you know, City of LA, for example, as well as the county, you know, there is a massive amount of vacant city and county owned properties, as well as tax delinquent properties that could become city or county own. And, you know, there's a lot of this development of luxury condos and apartment buildings that are largely ghost towns where units sit vacant, because it's often like an investment tool, or it's, you know, somebody's like, third apartment that they go to when they you know, go to a Lakers game, you know, that sort of thing. A lot of places across the world have created disincentives for financial institutions and individuals to maintain vacant houses. And I think I think those sorts of solutions would be really helpful in reducing the disparity of we have so many vacant houses, homes, but we have so many people without homes, and until we connect the two, and we're never going to be able to address the problem. And one of the kind of premise of affordable housing policy, really since the 70s. If not before was the only way to provide affordable housing is to provide is to give whatever they can in tax breaks, tax benefits, financially, you know, preferential financing, all of that other stuff to try to make the provision of affordable housing profitable, but, you know, I mean, but But first of all, it's it's never going to be truly profitable. And it's never going to be profitable enough for a company He's who are guided by quarterly returns and profit growth. So it's an it's always going to be the you know, they always have to increase their amount of profits. And and so the affordable housing development just continues to get more and more expensive. And, you know, the governmental response is to throw money at these private entities to try to encourage them to provide affordable housing, but they just don't have an interest in doing so. So I think a lot of the solutions are a need to shift away from commodified housing, and from housing, market based housing, and start focusing on social housing to start caring about, you know, other forms of housing environments, that that aren't necessarily tied to a market that is not interested in providing for this essential need of housing. Yeah,
Jeff Lewis 40:45
interesting. Listen, we've covered a lot of material today, we've covered some information about your landlord tenant practice. And we you've solved the problem, the enhanced, are there any other pearls of wisdom that you've picked up as a tenant's rights attorney that you want to either share with our audience or something that non landlord attorneys might be surprised to learn about your practice that you want to share with our audience?
Eric Post 41:09
Ooh, you know, I think I think for a lot, I think a lot of people who don't practice and landlord tenant think that it's a such a unique area of law, that nothing that they know, from their other practice areas would ever come into play. But, you know, the the advantage of of unlawful detainer practice is that, you know, it's a summary proceeding, but it's it's basic civil procedure, just tighter deadlines, some restrictions in terms of certain motion and certain defenses. But you know, for a lot of attorneys, especially those who are interested in trial experience, doing landlord tenant work is a great way to get your feet wet, you can get a case done in a matter of months, rather than, you know, four and a half or five years. Yeah. So there's a lot of benefits to doing the work in and a lot of the the insights that you all know from your other practice areas are going to be helpful and are going to serve you well, in that practice. But I think I think, you know, the one thing I would like to say that is kind of the most biggest mistake is the kind of mistake that that we see with trial attorneys who want to do their own appeals. And, you know, yeah, exactly. I mean, there, you know, the specific case or quote, kind of escapes me right now. But, you know, there are all these cases that that engage in this great discussion about how recycling trial level briefs will doom your appeal. And, you know, I think I think appellate work requires much more thorough work and a keen sensitivity to how that particular issue is going to fall into the broader context of jurisprudence in that area. It's just not trial level work. And just like trial level, just like trial level work is not the same as doing administrative. And I think, I think for a lot of attorneys, they need to respect the difference and modify their work accordingly. I think trial attorneys, if they thought more about what do I need to do to preserve issues on appeal, and we're more careful about that sort of stuff, they would both be more successful at the appeal level, but also at the trial level. And I think, I think one of the, and then also, you know, just there's just a number of different tactics that are employed by by trial attorneys that just drives me nuts. And those are the things like like waving notice, when on dispositive motions, it's like, you know, waiving notice on a continuance totally understand that there's no need for somebody to have to send notice on that. On the other hand, like if, of course, deny the judgment on the pleadings or something like that don't waive notice, you're entitled to a ruling. And you know, and especially for certain dispositive motions, and other sorts of things. It's really essential in terms of determining the appeal period. But that's a really common mistake that I see of trial attorneys in a landlord tenant context, but even outside of the landlord tenant context, although less frequently.
Jeff Lewis 43:56
Well, that's that those are some great points. And Tim, and I will be sending a check that mail in the mail for that wonderful endorsement of the need for appellate minded advice when handling an appeal. I think, Tim, I think that wraps up this episode.
Tim Kowal 44:12
Yeah. And we want to thank thank Eric post, again for visiting with us on the podcast today. And we want to thank again our sponsor case text. Each week, we include links to cases we discuss in the podcast and we use case text as the as our case database listeners of the podcast can find a 25% discount available to them if they sign up at case text.com/calpe That's the casetext.com/caLP. If you have
Jeff Lewis 44:37
suggestions for future episodes, please email us at info at Calpine podcast.com in our upcoming episodes. Look for tips on how to lay the groundwork for an appeal when preparing for trial. And thank you again, Eric, for being here. And thank you to Frank Campbell for nagging me about having you here.
Eric Post 44:54
Thanks so much.
Tim Kowal 44:56
See you next time.
Announcer 44:57
You have just listened to the California appeal on podcast, a discussion of timely trial tips and the latest cases in 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.
Defendants are entitled to an in-person trial in criminal cases. The California Constitution says so. But the Court of Appeal now holds that, even if you are denied that right, there is nothing you can do about it.
Christopher Melcher joins Tim Kowal and Jeff Lewis to discuss People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___. The court says you have to show you were harmed by being made to appear remotely rather than in-person. But the three appellate attorneys were unable to think of any good practical ways to show the denial of such a structural right resulted in practical harm. Rather, structural rights protect the institution and public confidence as much as individual rights.
Tim’s writeup on Whitmore is here.
Watch the clip here.
This is a clip from episode 34 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.
I sometimes ask our podcast guests their favorite part of the appellate process…other than writing the briefs. Because we already know that every appellate attorney’s favorite thing is writing. So here I try my own explanation why writing is such a fun adventure: because it is a journey to another country. Reaching another person’s mind is a most difficult thing. Done poorly, the traveler is left marooned and alone. Done well, the traveler is met by new friendly company.
William Hazlitt’s observation is what I have in mind when it comes to translating complex ideas to another soul. He said that “the more you really enter into a subject, the farther you will be from the comprehension of your hearers—and that the more proofs you give of any position, the more odd and out-of-the-way they will think your notions.”
In a way, we are all a bit like Whitman: we are untamed, and untranslatable. Usually the most we do is to sound our barbaric yawps over the roofs of the world. Good writing requires we stop our yawping over rooftops and to consider the fact of the other. Good writing is an act of peace, and of friendship.
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.
Civil trial attorneys have an industry secret. Say you are suing over an unpaid loan. If the borrower never intended to pay back the loan, that’s not only a breach of contract, it’s a form of theft by false pretenses. And under Penal Code section 496, civil theft is punishable by treble damages and attorney fees. For those in on the secret, section 496 is a powerful tool in a business lawyer’s toolkit.
One problem: courts really don’t like section 496. They worry that lawyers will overuse it and turn every garden-variety loan or business-tort case into a civil-theft case. So there arose a split of authority, with some cases enforcing section 496, and others refusing to enforce it.
Breaking the split, the California Supreme Court kept this powerful tool intact. In Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081) 2022 WL 2840312, the Court held the civil-theft remedies under section 496 applied to a case involving diversion of partnership cash.
But the Court did not throw open the floodgates. The Court noted that the concerns expressed by section 496 naysayers do “give pause.” And Justice Groban, joined by Justice Kruger, concurred to note they do not read the majority as endorsing civil-theft penalties in “most consumer or commercial transactions.”
And on a separate point of civil procedure, the Court held that even a defaulted defendant may move for new trial to challenge excessive damages.
Siry Investment involved familiar allegations about two partners diverting partnership assets to themselves via the various trust involved. The jury awarded about a quarter million in damages, plus punitives, reduced by the judge to about $725,000 each.
Not a good outing for the defendants, but not devastating.
The defendants’ attorneys then raised a nice technical issue on appeal (the verdict form didn’t specify whether the award was against the defendant individually or as trustee), and got the judgment reversed and remanded for a new trial.
At this point, the defendants had a chance to salvage things. But they took their case in a different direction. They refused to respond to discovery. Then when the trial court ordered them to respond, the defendants refused to obey the court’s order, too.
So the plaintiff got terminating sanctions. And this time around, the plaintiff sought remedies under Penal Code section 496: treble damages and attorney fees.
And the plaintiff got them, too. The court entered judgment against the defendants for almost $1 million in damages, almost $2 million in treble damages (under section 496), $4 million in punitive damages, $4 million in fees (also under section 496), plus costs, for a total of over $12 million.
Looking at the defendants’ case, by this point the wheels had come off. But the defendants still had a couple tricks up their sleeve.
First, the defendants moved for a new trial. And the trial court agreed that it could not award both treble damages and punitive damages. The plaintiff elected the remedy of treble damages. (An interesting choice, since punitives were $4 million and treble damages were $2 million. Probably a shrewd move by the plaintiff, knowing treble damages, being statutory, could not be challenged as excessive or lacking basis in financial condition.)
Ultimately, the trial court entered judgment against the defendants for over $7 million.
Second, the defendants appealed the aspects of the judgment as improper under section 496. And the Court of Appeal agreed with them. Then, the Supreme Court granted review.
The plaintiff cross-appealed from the order granting the defendants’ motion for new trial, which had reduced the damages from $12 million to $7 million. But the Court rejected the plaintiff’s argument.
The Court noted precedent holding that even a defaulting defendant—who has no right to participate at a prove-up hearing—nevertheless may appeal the default judgment on certain grounds. So the Court reasoned that there is “ ‘no reason to preclude [defendants] from seeking a new trial (or, more precisely, a new judgment hearing)’ ” on those same grounds.”
Specifically, a defaulted defendant may move for new trial under Code of Civil Procedure section 657, subdivision 7, concerning “errors in law, occurring at the trial and excepted to by the party making the application.” Even though the defaulted defendant cannot “except” to the errors, the Court held that “for reasons of judicial economy defendants may be seen as having the right to move for a new trial under that subdivision.”
The Court declined to follow other authorities that suggested defaulting defendant may not file a motion for new trial under any circumstances.
The defendants were not successful, however, in persuading the Court that the civil-theft remedies under Penal Code section 496 were improper in this case.
The Court analyzed three Court of Appeal cases applying section 496. Bell v. Feibush (2013) 212 Cal.App.4th 1041 held that the civil-theft remedies under section 496 did apply. In Bell, the defendant borrower asked to borrow money from the plaintiff on the false pretense he needed the money to settle a lawsuit concerning a related enterprise. As the loan was induced by false pretenses, section 496 applied.
True, the Bell court acknowledged, construing section 496 too broadly could turn all commercial cases into civil-theft cases. But section 496 is “clear and unambiguous” when it refers to “receiv[ing] any property that … has been obtained in any manner constituting theft or extortion, knowing the property to be so … obtained….” Even other states followed California’s example and enacted their own versions of section 496 in and effort to reduce instances of civil theft.
But Lacagnina v. Comprehend Systems, Inc. (2018) 25 Cal.App.5th 955 declined to extend section 496 to wage-and-hour cases. Labor is not “property” subject to the statute.
Tipping things back in favor of enforcing section 496, Switzer v. Wood (2019) 35 Cal.App.5th 116 followed Bell. Switzer involved a joint venture between business partners. The court held that section 496 could apply to such cases.
Back to the facts at hand, the Siry Court followed the Bell and Switzer cases. The Court held that section 496 is “unambiguous.” Reversing the Second District Court of Appeal, the Court rejected the intermediate court’s view that the statute does not apply in “theft-related tort cases.”
The Court concluded: “A plaintiff may recover treble damages and attorney's fees under section 496(c) when property has been obtained in any manner constituting theft.”
Here, the fact that the judgment on review was a default judgment made it easier to affirm the section 496 remedies: the defaulted defendants were deemed to have admitted the allegations of theft. But in cases where misrepresentations or unfulfilled promises “are made innocently or inadvertently,” the civil-theft remedies under section 496 would not apply.
The Court also disagreed that following the text led to an absurd result. Section 496 still requires a fraudulent intent in obtaining property, so these limitations prevent statute from being invoked in every business tort. Besides, how could this interpretation be “absurd” when other states have looked on it with favor and implemented it in their own jurisdictions?
The Court did take the policy concerns seriously. But, the Court noted, “these policy issues have not been hidden from the Legislature's attention, nor are they new.” “Indeed, courts of other states have so construed their statutes even in the face of policy-based admonitions against unduly expanding such remedies.” The Colorado legislature, for example, has adopted a similar civil-theft statute, and its Supreme Court has applied it even more broadly to employee breach of contract actions. There is no reason to presume our legislature is less nimble.
Lest there be any misinterpretation, Justice Groban, joined by Justice Kruger, concurs to say the majority opinion does not “create a sea change in the law.” Justice Groban specifically cautions against seeking section 496 remedies in cases involving wage and hour laws, false advertising laws such as the unfair competition law or Consumers Legal Remedies Act, warranty laws such as the Song-Beverly Consumer Warranty Act, or real estate or mortgage lending disputes. And he concludes: “I do not believe it is likely that section 496 will apply in most cases concerning consumer or commercial transactions, and I do not read the majority's opinion to suggest otherwise.”
Section 496 is strong medicine in the right business tort case. Here, it took a $1 million judgment and added a further $6 million in treble damages and attorney fees. (The $4 million in fees is another story.)
If you have a civil case involving fraud that amounts to something akin to theft by false pretenses, consider seeking remedies under Penal Code section 496(c). Do not get too creative. But under Siry Investments, policy concerns are no longer a valid basis to refuse to enforce section 496. **
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.
Here is a common scenario, with a rather uncommon resolution. You have appealed a judgment, and you have separately appealed the attorney fee award. You reversed the judgment. After reporting the victory to the client, you suddenly remember: what about the fee award?
That is what happened in Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC (D4d3 Juul. 20, 2022 no. G059899) 2022 WL 2824967 (nonpub. opn.). The appellants reversed the judgment, but briefing had not even begun in the separate appeal of the fee award of almost $500,000.
Here is what the parties did: They filed a joint stipulated request to summarily reverse the attorney fee award. And the appellate court granted it.
But the court made a few comments about the parties’ request.
First, the court noted that an appellate court has “inherent authority” to summarily reverse. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 5:82, p. 5-34.) This power may be exercised when the correct outcome of an appeal is clear, making further appellate proceedings a waste of time. (Melancon v. Walt Disney Productions (1954) 127 Cal.App.2d 213, 215 [motion granted because recent Supreme Court case on same issue compelled reversal].)
But the legislature has something to say about this procedure. Specifically, Code of Civil Procedure section 128(a)(8) imposes a presumption against stipulated reversals. Section 128(a) states:
“An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.”
The burden under section 128(a) is very difficult to meet. (Hardisty v. Hinton & Alfert (2004) 124 Cal.App.4th 999.)
And the Court of Appeal has its own local rules concerning stipulated reversals. (Ct. App., Fourth Dist., Div. Three, Internal Practices and Proc., V C, Stipulated Requests for Reversal.)
Here, the parties did not address the statutory factors.
But that was not really important, the court concluded, because the parties were correct that reversal of the fee order was inevitable after the judgment was reversed. “A disposition that reverses a judgment automatically vacates the costs award in the underlying judgment even without an express statement to this effect.” (Ducoing Mgmt. Inc. v. Superior Court (2015) 183 Cal. Rptr. 3d 548, 555.) So there is no way a nonparty or the public’s trust could be undermined by the reversal.
Under Ducoing and many other cases, this procedure seems unnecessary: the reversal of the underlying judgment operates to automatically vacate any fee or cost awards. But given the award was under separate appellate review here, the trial court lacked jurisdiction to vacate the award. And the appellant was understandably reluctant to simply dismiss the appeal.
An alternative to seeking stipulated reversal here would have been to point out in the briefing the existence of the separate appeal of the fee award. That way, the appellate court might have disposed of it in the same opinion as the underlying appeal.
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.
Reviewing a recent book on persuasion trial trips based in science, Stefan Love’s conclusion is that the tips are in greater abundance than the science. True, there is much interesting science on the limits of human attention: for example, you can get a jury to remember a few things, but one too many and they forget it all. But does this mean you should ditch a particular piece of secondary evidence at trial? That, as ever, still comes down to discretion and common sense.
Stefan talks with Jeff Lewis and Tim Kowal about some of the other helpful trial advice in John Blumberg’s Persuasion Science for Trial Lawyers, and whether it is scientific, or just common sense. Advice like:
Stefan Love’s biography and LinkedIn profile.
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.
Stefan Love 0:03
If your first and second strongest argument for an outcome, haven't convinced your reader, don't bother with the third one because it's probably not going to do it I've
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 0:29
And I'm Tim colwall, the California appellate law podcast as a resource for trial and appellate attorneys. Both Jeff and I split our time about evenly between trial and appellate courts. We're both appellate specialists and we try to give our listeners some legal news tips and perspectives that they can use in their practice.
Jeff Lewis 0:46
And a quick announcement this podcast is sponsored by case text case Tex is a legal research tool that harnesses AI to lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019 and I highly endorse the service listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at case Tech's dot com slash scalp. That's case text.com/ca LP
Tim Kowal 1:11
Today we welcome Stephen love to the show. Stephen is an appellate attorney at grinds Martin Stein in Richland. Before joining gmsr, Stephen clerked for Judge Paul J Watford at the Ninth Circuit, Stephen has published in law 360, the business lawyer, UCLA Law Review, and UCLA Journal of Law and technology. He graduated first in his class from the UCLA School of Law. Before Stephen became a lawyer. He was a professor of music theory holding a PhD from the Eastman School of Music. Stephen, welcome to the podcast.
Stefan Love 1:43
Thank you very much. Thank you.
Tim Kowal 1:45
I was I was very interested to read in your in your bio about your music background. And I wonder if you tell us a little bit about yourself and your practice.
Stefan Love 1:53
So I started out as a music professor, as you mentioned, and then my wife is actually a TV writer, and I was a music professor in Massachusetts. And my wife is a TV writer in LA and that wasn't working so great. So I sought out another career I came to LA came to UCLA School of Law. And I knew from my first moot court experience that appellate law was for me, I loved writing the briefs really just sinking my teeth into complex analytical issues and questions. And I love love, love oral argument. It's a lot like teaching, in that, you know, teaching is kind of a persuasive act, you have to bring your students around to your view of things. And it's also in the same way oral argument is actually an educational act in that you are educating the judges or justices about your case. So the commonalities between my former life as a professor and my current life as an appellate lawyer, are deeper than they might first appear so that it was at UCLA that I realized appellate law was for me. I spent a year after law school at a big law firm just doing trial litigation. And then I went and clerked for Judge Washford, as you mentioned, which was a transformative experience. He is an incredible judge and credible legal thinker. And I was very glad to get right out of that clerkship, my current position, as you mentioned at grayness Martin, the LA based appellate boutique,
Tim Kowal 3:25
and what are some, can you draw any commonalities between your music career and your legal career? I hear sometimes, you know, kind of behind the scenes conversations with songwriters about words and music. Do you write the words? First you write the music? First? I wonder if there's any similar themes with with brief writing or arguments? Do you come up with the the analytical logical arguments first? Or do you come up with a theme or story of the case? First?
Stefan Love 3:50
I tend to I tend to go arguments first, for sure. The other thing that strikes me as linking music theory to legal analysis, is there there's not and this will bring us actually to our topic a little bit. It's, you can't look up the right answer of how do you analyze this piece of music, really, you're taking certain analytical tools, and you're applying them to the piece of music and you're trying to convince your students or somebody reading your academic article, hey, I've got the right approach to this, but the music kind of stands on its own terms. The same goes with the facts of a case or an appeal. The facts are the facts and the legal theory, or theories that the different sides bring are kind of standing independent of those facts. So there isn't a kind of certain right answer the way there would be with a math problem or something like that. Really, you're trying to convince your jury or your judge that your connection between the theory and the facts is the right one, but it can't be It can't be definitively or deductively proven in the way it might In some other discipline
Tim Kowal 5:01
right now, that's the interesting thing about and we will get into this. We're going to talk about John Blumberg book about persuasion science for trial lawyers in your review of that in the recent California litigation magazine. And and we talked a little offline or over email about the difference between, you know, arguments that are or advice that is ScienceBase. And advice. That's just good sound advice. I don't know how you would go about proving it by science. But it's in talking about, you know, words and music and what makes what makes for a good argument analytically, and what makes for a good argument in a persuasive sense, and they're not always the same thing. I was reminded of an anecdote, I can't remember who the who the songwriter was, but it was a writer heard someone whistling the tune to a song he had wrote the lyrics for, and he said, Oh, you know, I wrote the lyrics for that. And he's, and the guy whistling a tune says, Yeah, but I wasn't whistling the lyrics, you know, sometimes it's the music, that it's memorable. And if you can get a you know, that's that's kind of what's persuasive, you have to find a way to persuade. And sometimes it's a little bit different from what, you know what the cold logic of the case is about. Absolutely. So so let's get it. Well, you know, I did want to want to ask you a couple other kind of background questions about you, in your experience as an appellate attorney, what is uh, do you think of any common mistakes that you see other attorneys making like, either trial attorneys or appellate attorneys?
Stefan Love 6:21
making too many arguments, too many different arguments? I see. The typical brief raises too many issues, pick your strongest arguments, pick your strongest issues and drop the rest, because you're distracting or, you know, irritating your reader by bringing in a lot of less effective issues.
Jeff Lewis 6:42
I usually find two to three is the magic number for briefs in terms of appellate briefs, I like to find my two or three strongest issues and then drop the rest Do you Do you sometimes file single issue appellate briefs,
Stefan Love 6:54
two or three is what I've tend to use as well. But I the case kind of dictates it because you know you can get if there's a complex procedural posture, you kind of have to tackle additional issues. But I guess maybe it's not even so many issues, as much as it is arguments. If your first and second strongest argument for an outcome, haven't convinced your reader, don't bother with the third one, because it's probably not going to do it either. You know, if you know it's your weakest, just save the words, save the time,
Tim Kowal 7:27
you ever be able to really struggle trying to trying to drop an argument, you know, you've got got it maybe got a third or a fourth argument, that's it's really quite strong, you're kind of partial to it, you know, that maybe objectively, it's not the strongest, but you just have trouble dropping it, or maybe your client doesn't want you to drop it.
Stefan Love 7:46
That's the it's the latter. I think that that is more of a struggle as a client has maybe a pet argument. And you know, in the appellate sector as well, this can be an issue, if something was a really important issue at trial argument at trial, it can be hard for the client or trial counsel to let that go on the appeal. But it might be just a loser argument. And that might not even be because of the substance of the argument. It might be, for example, if we're talking about a substantial evidence issue, you lost that issue at trial, you are not going to get that reversed 99% of the time. Yeah. So boy, you spent so many hours trying to work that one at trial, and you lost and probably you got to give it up. It's just not going to not going to change on appeal. And that can be hard, hard point to make, you know, to the client or trial counsel.
Tim Kowal 8:38
Yeah. I had an experience that I don't know if it confirms or disconfirms. The advice about, you know, about dropping the weaker arguments, I dropped an argument. That was because it was an abuse of discretion type of argument, it was that the trial judge erred because he should have bifurcated the accounting issue and held that first because their whole bunch of issues, legal errors on the accounting, gave it to the jury, that sort of thing. But I thought, Well, gosh, it's an abuse of discretion. It's going to be hard to win. I wound up so I dropped it. But I wound up winning on that issue. The Court of Appeal raised that issue sua sponte, and said that the trial court abused its discretion. I thought, wow, that's, that's interesting. So I didn't even raise that argument. Maybe it's because the way I drafted the procedural, you know, the statement of facts and procedural history, so that it really elevated that issue without me having to directly argue for it.
Stefan Love 9:28
I had the experience recently where I left an argument out of a brief after discussing it with my the other counsel for my firm on the case and with the client. And then and we were the appellant and then the respondent made a big deal. And they were in the respondents brief. They wave this argument, oh, they can't raise this on reply. And I thought, Oh, no. Should I have raised this like, Did did. Are they kind of so relieved that I didn't raise this because they were afraid that I would raise this that really gave me pause. about, gosh, maybe actually should have should have kept that one in. Yeah.
Tim Kowal 10:03
Okay. Last quick last personal question. Every appellate attorney, you know, has the favorite part of their practice to write the briefs. Do you have a favorite part of your practice other than writing briefs?
Stefan Love 10:15
I mentioned oral argument before and I like oral argument even better than, than writing the briefs. I was very fortunate to actually do an argument before the California Supreme Court about a month ago in a in a pro bono matter. And I love love preparing for it. And man, I love the argument. I just it's such a thrill. It was not a by video or in person. It was by video is remote. Yeah. Interesting.
Jeff Lewis 10:43
I've never I've never argued before the Supreme Court. I've never argued to a panel more than three justices. I imagine. Boy, the preparation for that is, is unbelievable. Did you do a moot for that? In advance of them?
Stefan Love 10:54
Yes. I did a move with three other lawyers from my firm. And they were it was it was like a three hour move. It was really, really involved. But I felt very prepared by the end of it. And of course, the real court was easier on me than the than the moving attorney Chapin. Yeah,
Jeff Lewis 11:10
I bet. Hey, before we jump into the California litigation article, I have a question. Do you ever in addition to writing appellate briefs and arguing cases, do you ever serve as embedded counsel for trials we ever sit and look across the trial? Lawyers shoulder and help them out to make sure they're preserving appellate issues?
Stefan Love 11:26
I haven't done it yet. But it's something that that my firm does pretty regularly.
Jeff Lewis 11:31
Okay, interesting.
Tim Kowal 11:33
Okay, well, let's let's talk about your review of John Blumberg persuasion science for trial lawyers. As I mentioned, this, this article can of yours can be found in the spring edition of California litigation magazine. Blumberg book promises to go beyond mere anecdotes of how to do it in terms of persuading a judge or jury at trial, and to go into the science of how jurors are actually persuaded. And Stephen, your article tackles the question of whether Blumberg actually fulfills His promise of getting offering science backed advice to trial lawyers, if you would tell us a little bit about Blumberg book, and maybe just in general, how you rate it.
Stefan Love 12:15
So I thought Blum Berg's book was excellent as a compendium of trial tips and strategies, absolute Absolutely, strongly recommended in that way, I think as a compendium of science, it was a bit weaker. It's to kind of reiterate what you said, the way Blumberg positions. The book is, here's this advice. And he's a very experienced trial lawyer. But he's saying this isn't just based on my experience, and my talking to other lawyers. This is based on science. And so in that way, the book kind of slots into this popular science vein of, you know, some counterintuitive, eye opening suggestions are an analysis of everyday situations. That's really how Bloomberg is trying to position this book. And I found that sometimes the scientific angle fell short of that promise. One common weakness, I might say is that the science just turns out to confirm common sense. So for example, it's an evergreen writing tip, to write more simply avoid unnecessarily complex words, avoid long sentences, keep things simple, keep things direct, keep things plain. That's just every everyone who thinks about writing and who has tried to improve their writing has encountered that advice. And sure enough, there are scientific studies that prove supposedly that this is good advice. Do we need those studies to know that this is good advice? Personally, I don't think so. So for Blumberg to say, you know, in your strive for more simplicity in your legal writing, Oh, and here's the science that tells you, you should do this. It kind of feels like like painting the lily, like we know, this is good advice. We've heard this advice before. So fine, there's a study that confirms it. But it seems more like a matter of packaging something than actually using the science, the science isn't really doing any work. And then the other way that the science the science angle, sometimes fell short of the goal is where the scientific study might have even been distorted to serve Blumberg point. So let me give an example of this. There's a scientific finding that psychologically people strive to maintain the status quo of their beliefs. So we all you know, approach the world with certain assumptions about how it works. Just to give an example, somebody might have a view that corporations are big and evil, and they don't care about people. And this is a kind of bias or assumption somebody might bring to the world and when we learn something new or when presented with new information about the world according to the science, we try to conform that new information to our pre existing beliefs. So if I hear about corporation you know, there's a dangerous product of corporation put out I'm gonna that's confirms for me Oh corporations are bad, typical heartless Corporation. And maybe the story of this product hurting somebody also involves the person using the product might not have, you know, done so in the most intelligent way. But I'm going to read this I'm going to understand his story in the way that maintains my own biases. So that's what the science says we strive to maintain the status quo of our beliefs. But when Blumberg starts talking about this result in his book, he shifts it to be the real world status quo. And the example he gives is plaintiff's counsel trying to get a jury to award a verdict to the for the plaintiff, and award damages. And so Blumberg says, well, the plaintiff's lawyer is always because of this science is facing an uphill battle, because that award of damages that plaintiffs verdict that shifts the concrete state of the world that shifts money from the defendants hands to the plaintiffs hands, and that imposes liability on that defendant that takes the kind of pre trial status quo and seeks to alter it. And according to Bloomberg, this is more difficult because everybody's trying all the jurors are trying to maintain the status quo. But what Blumberg does here is conflate the status quo of our beliefs with the status the real world status quo. And it's true that a plaintiff's verdict does alter the real world status quo. It shifts money from the defendant to the plaintiffs, it imposes liability where there was none before. But if the if a juror on that jury approaches this case or trial already with beliefs that might favor a plaintiff's verdict, I believe that corporate and big corporations are evil and don't care about people a belief that, you know, the little guy is always getting screwed the little guy being the plaintiff, then actually that juror, Juror voting for a plaintiff's verdict is maintaining that juror status quo. So that plaintiff's lawyer is actually being helped by this bias of this juror, and any other juror have the same set of beliefs. So that in other words, the scientific finding that people strive to maintain their mental status quo can actually end up helping plaintiffs or defendants. But Blumberg is conflation of the real world status quo, with the psychological status quo leads him to kind of distort the significance of that research to the trial con,
Tim Kowal 17:46
right. And jurors might not have the same the same fascination with status quo as judges and attorneys do. We understand that, you know, the status quo or the status quo ante and judges are in the court system itself is parsimonious. They don't want to act unless they know that those certain legal thresholds are met. And jurors don't necessarily have those hang ups. They just like you say they might have some view their own personal view of the world that corporations are big and evil, and they ought to pay whenever someone is hurt within their Ambit, they ought to pay and they don't have any compunction against disturbing what lawyers and judges think of as the status quo.
Stefan Love 18:24
Right. So that illustrates, you know, another way that the science elements sometimes falls short in Blumberg book that the research might be distorted to make what might be a very valid piece of support what might be a very valid piece of advice, but it's not coming from the science at least,
Tim Kowal 18:41
right? Well, as I read the book, as well, after I read your your excellent review of the book, I thought, well, this, this book promises to have at least a lot of good tip, Stephen points out that maybe maybe some of them are backed by science, maybe not all of them are backed by science, but at least I'm gonna get some interesting tips. And I wrote them down and I thought maybe we could talk about them. And at a minimum, or our audience can hear about some of Blum, Blumberg steps and read them for them for themselves. I thought maybe we could discuss each one, whether whether they're backed by science, whether they're not backed by science, and whether, you know, regardless of whether they're backed by science, if if it's still a good tip, and how we can know it's a good tip if it's not actually backed by science. So here's the first one I wrote down. Excessive information can lead to worse, not better decisions. I don't know if you recall that from Bloomberg book. Do you recall it that is backed by science or not backed by science? As you can recall,
Stefan Love 19:38
I believe that one had some pretty good scientific backing. And you know, you can imagine the studies, and I'm sure Blumberg read them inside of them that support this kind of finding where somebody is kind of overwhelmed with information about a decision and they freeze or they take longer to make the decision or they make a worse decision. Sherman, and actually a few of a lot of Blumberg advice, I think actually comes from what is this core scientific finding about the limitations on people's attention. We can't hold on to that much information at one. And that's a kind of core failing of human psychology. And so trial lawyers, I think Blumberg is exactly right. Should should keep that in mind.
Jeff Lewis 20:22
Yeah. And and appellate lawyers, I can't tell you. I've been in cases where the other side files an application for an oversize brief. Are you kidding me? Yeah.
Tim Kowal 20:32
Application to make worse arguments exactly undermine my persuasive impact. I remember Bloomberg related to a story about a study where participants were asked to remember you know, certain number of numbers I think, and and then walk down the hall and report all the numbers they can remember to the other person with the clipboard at the end of the hall. And the first group did it and reported their numbers and did fine. And then the second group went down the hall, but right before they got to the person with the clipboard, they were confronted by another person who gave them another bit of information. And then they did much, much worse than the first group. So I think it goes to your, your initial tip, when we first started talking about don't throw the spaghetti at the wall don't make too many arguments. It undermines your, your persuasive impact.
Stefan Love 21:14
And sometimes I found myself actually digging in trying to come up with like the third nuance on some argument, I'm trying to make an A brief, like just kind of digging, digging, digging deeper, and I thought, okay, I can barely think of a way to write this down in a way that I'll be able to understand it two months later, maybe I shouldn't even say this, because there's basically zero chance that the person reading it is even gonna get what I'm saying. So an argument can be perfectly logical and correct. But it's a loser argument because it's too complex. And it gets to this point, yeah.
Tim Kowal 21:51
Okay, almost by think of it as, imagine if you could, you could talk underwater, trying to communicate to someone underwater while they're holding their breath. You know, get the get the key points out and then let that person get up for a gasp of air for heaven's sake. Okay, here's another point that Blumberg another bit of advice from Bloomberg. But there are really only two grades in the practice of law a or F. Basically, it's all binary, you're either going to persuade or failed to persuade is that scientific, scientific observation or not scientific?
Stefan Love 22:19
That doesn't sound like science to me. But But I do think it gets to really what what this is what Weinberg's point is, you either win or you lose? Whether it's the issue or the you know, the motion or the trial, you win, or you lose? And you know, these tips have succeeded or failed. The only way, you know, the only feedback you get that really counts is whether you win or you lose, you can watch the jury or watch the judge for signs of, you know, understanding or signs of agreement, but you really don't know till the end.
Tim Kowal 22:50
Yeah. Here's a tip that Blumberg relates from Robert F. Kennedy, on lessons that he learned during the Cuban Missile Crisis. And this this advice from Kennedy is do not humiliate your opponent, always leave your opponent away out. Is this science or not science and as a good advice, or regardless of whether it's scientific,
Stefan Love 23:11
I don't think it is science. I can't even imagine what this study would look like that would prove this. But it sounds to me like really good advice you face and saving face is really important in negotiations in trial. And you know, what I'm thinking of, as one application of this advice is when you're arguing that the trial judge if you're writing an appellate brief, and you're arguing that the trial judge made a mistake, don't pile on. Don't go too hard about that. And this isn't necessarily that the that the appellate justice, personally, you know, wants to save his or her own face, but they're going to be sensitive to the trial judge. And then if you are just tearing into this trial judge, oh, my gosh, this judge made was just so dumb. How could they make this error of live? So obviously, the Court of Appeal might actually be resistant to that kind of vicarious face saving on behalf of the trial judge, they're going to be maybe more inclined to hold that the trial judge made an error if you say, Hey, listen, this is there was an error here. Nothing too embarrassing about it. But that's it. This is just not what the law is. Right? So that kind of emotional dimension matters and a lot of times,
Tim Kowal 24:26
okay, next tip from Blumberg. Juries learn better with pictures, but avoid competition for resources. In other words, don't use written word and spoken word and pictures all at the same time because that tends to overload the jury's cognitive abilities. Is that science or not science? And is it good advice regardless,
Stefan Love 24:47
I love that advice. And I'm glad you brought it up and I think it is I think it's good science. I remember Blumberg citing a study or studies about that very point. And I remember finding that to be counterintuitive. But I was very gratified to learn it for that reason. But then I thought back to all of the times I've sat through a PowerPoint presentation, and the presenter pops up the slide. And there's a big block of text there. And the presenter is maybe reading the text or maybe paraphrasing it at the same time as it's up there. And maybe I'm ignoring the presenter because I'm just reading the text. And I thought, Gosh, this is this is spot on, give the juror give the judge give your listener, one thing to do at a time. Look at the picture, listen to your voice. Don't make them do all the things at once.
Jeff Lewis 25:36
I'm a big fan of using pictures in text. And did you notice in the Supreme Court decision involving prayer for the 50 year 50 yard line? The dissent by Sotomayor used not one, not two, but three photographs of the huddle at the 50 yard line I thought was very effective contrast to have the majority opinion author described. The prayer is very effective. Yeah, very striking.
Tim Kowal 26:02
Okay, next tip, and this is related but a little bit different. Blumberg says you should not present all the evidence at trial because it overloads the jury's cognitive capacity. And this is sometimes hard to this is a hard sell for trial attorneys because I got good evidence I want to put it all in front of the jury but Blumberg suggests you might be overloading the jury on on that score. What do you think science, not science. And as a good advice. Regardless,
Stefan Love 26:28
I think this is science to this gets back to what we were saying about the limits on attention and memory. And there's a lot of different kinds of research to back that up. And it strikes me as good advice as well. This is a kind of another version of the same problem we talked about earlier where you know, the temptation might be to raise every argument, you made a trial, also raise it on appeal. Similarly, if you've gone through all this discovery, if you've gathered all this evidence, before trial, you Boy, you really want to put all this in front of the jury to make all that work in your mind at least pay off. But ultimately think about what's gonna be most persuasive, the jury is going to remember the most compelling bits of evidence. And it's going to be only a very small percentage of the entire record. If you think about the record has all the discovery you you ever did. So the difficulty is selecting that most compelling subset of the evidence and really presenting that to the jury and emphasizing it again. And again, that's what's going to lead the jury to, you know, go to the jury room, and that's going to give them what they're going to be talking about when they reach a verdict.
Tim Kowal 27:38
Okay, continuing on that theme, Jeff and I on this podcast, we've discussed in brief writing how it's how important it is to have white space in your briefs that the eye craves that you need to see the end of paragraphs and the worst thing in the world is just see this page pages long blockquote that they have to read through without any indication of what is actually relevant to the case. Blumberg says it suggests something similar for a trial attorneys a trial trial lawyers should consider taking moments to stop talking allow the jurors to actually process the information they've been given. And Blumberg also I recall talks about how judges are a little bit some sometimes a little bit too ruthlessly efficient in their trials in the name of being considerate to the jurors and their function. They actually in their ruthless efficiency, they don't allow the jurors actually process the information. What do you think about that Stephen is that science or not science and is a good advice regardless,
Stefan Love 28:31
that strikes me as science, if I'm if I'm the arbiter of what is science that strikes me as science, again, getting to these, the limit on attention, this core limitation on human cognition. And it's good advice. The effect of the pause is sometimes underestimated, whether in an oral argument or in an examination of a witness or an opening or closing argument, both as a rhetorical tool and as a mental breathing space for your listener. When it comes with regard to efficient trials, I think we ought to be clear about what efficient means coming back to this point about not throwing all your evidence before the jury. Suppose the trial is going to take exactly the same amount of time. But you take, let's say, 10% of the evidence you were thinking of putting up and instead you use silence or repetition of the other 90% That's probably going to make for a more effective trial, then if you throw that additional evidence in there, that the trial might take the very same amount of time. So from one definition of efficiency, it's no more efficient, but but it is more efficient in terms of you're using less evidence to achieve a greater persuasive effect.
Tim Kowal 29:48
And what happens when the judge says counsel, you're being cumulative and duplicative? This is not an effective use of the court's time.
Stefan Love 29:56
I suppose you you stop and you move on. Yeah.
Tim Kowal 30:00
But yeah, we're just offered the the second tier evidence, I guess. Okay, next next tip from Bloomberg, and this is on the topic of expert examinations. Blumberg says that when it comes to expert examinations try to create immediate interest. And he talks about the normal routine of starting in with the experts qualification. But that's, you know, for most jurors, that's just that's just dole is watching paint dry instead, he gives us example assume your your experts name is Dr. Jones, Dr. Jones, I'm going to be asking you whether there's a connection between repeated concussions and permanent brain damage damage. And so now with that question that the jurors are suddenly asking in their own minds, I wonder what his qualifications are for answering that question. And so you've is that, that struck me is good advice. But is, is that science or not science and is a good tip. In your view,
Stefan Love 30:53
it seems like a good tip. I don't know if that precise tip could find much scientific footing. But, you know, this is kind of 1000s of year old advice. We try to grab your audience. Nobody likes to read a recipe. Nobody likes to hear a recitation of somebody's resume. They want to hear about something concrete that they can grasp. i Another example that Blumberg gives about a more effective expert examination is to say, you know, Dr. Jones, how many heart surgeries on young children did you perform in the last year? And all of a sudden, we're seeing Dr. Jones, and we're thinking, wow, hard surgeries on young children this person really, that's that's serious stuff. Oh, and you performed, you know, 20 heart surgeries on young children. Oh, my gosh, you must really understand, you know, the heart or an anatomy or whatever it is that this person is being put up here for then maybe after you've got the jury interested in this person, you can, you know, explore their actual credentials to the extent you even need to.
Tim Kowal 31:52
Yeah. Okay, and then here's your here's the last tip that I wrote down from Bloomberg to ask you about when people are told what to believe, they often reject it and strongly begin to consider the opposite. So Blumberg advice, advice is to avoid triggering what he calls the reactance attitude of you can't tell me what to do. So you know, don't say things like the evidence compels a verdict. You want to give an inoculation against reactants, such as, you know, telling the jury, the jury that the decision is up to you. Is that is that science? Do you recall that it's being backed by scientific evidence? Or is it not science? And just maybe good advice? Regardless,
Stefan Love 32:32
I don't think there's much science behind that precisely, I think you could offer some, some science that's adjacent to it, such as when we discussed about the status quo of our beliefs, people might be more willing to go along with a conclusion that has some dissonance with their own pre existing beliefs. If the conclusion isn't stated, you know, in the strongest possible terms, so if they can, if they're kind of permitted to reach the conclusion, rather than, you know, demanded that they do it. I mean, what this comes down to really is the ancient idea that people are stubborn, that nobody likes to be told what to do. So you know, that that is a truth about human nature. And maybe that transcends science. One thing I've caught myself doing more recently, that fits with this advice is, you know, you're writing headings of briefs, or you're writing always the first or last sentence, and you you could you have a choice, you could say, and this could be in a trial level brief or an appellate brief, but I'll give you an appellate example, this court must reverse the decision below. Or you could say this Court should reverse the decision below. And I've been really aiming to go for should reverse lately, and it feels a little risky, like, oh, but they really must. I've got to, I've got to make them make them do it. But ultimately, you can't make them do it. So even though saying, you know, the court should reverse or the decision below rested on legal error, you're not demanding that they do anything, you're just presenting to them to the Court of Appeal in this example, here's what happened. You make your own decision, but you should reverse. It goes that goes along with this advice, if you don't want to Court of Appeal doesn't want to be ordered around.
Jeff Lewis 34:23
Yeah, whether you're speaking to appellate justices or teenage kids, I found should works better.
Stefan Love 34:30
Or I have the toddler actually added a preschooler as well. And even though I could, you know, make him do whatever I want, it's so much smoother. If I say, could you please, you know, take your shoes off. He's gonna actually a lot more likely to do it than if I say take your shoes off this instance. So right.
Tim Kowal 34:49
So we've talked about several bits of advice. Some of it is backed by some science, some of it's probably not backed by science, maybe maybe couldn't possibly be backed by science. It's just based on its nature. But just about all of those tips, I think we all agree that that they are good advice. Yet, if it's not backed by science, you know, how do we know? How do we know things are good advice if they're not backed by science? And I wonder if that's something you could draw on. On your music background, I remember seeing something somewhere explaining why we say things like, tick tock, but we would never say tock tick, or, you know, we say there are certain language patterns that are just kind of innate to us. And I don't know, if we, I guess you could put our brains under an MRI and say, oh, yeah, the brain somehow resists you get different, you know, different colors or patterns emerge when you say tock tick, rather than tick tock so it's tick tock is obviously more soothing. But I don't know if we have an answer to why we can just, we can just describe it, these things work and these other things don't work. Do you have any, you have any, any personal standards of how you, we all hear writing advice and an art, you know, how to be persuasive, that type of advice all the time? How do you rate? What, what is good advice, in your view?
Stefan Love 36:08
I think there before you get to science, you get to simple observation of what works, what doesn't to achieve a result. And I wouldn't want to expand the definition of science to take in this very, you know, simple, like, suppose any, you're trying to achieve any particular result, cook a meal, you know, build, hammer a nail into the wall, you're just it's a very, it's a concrete result in the world you're trying to bring it about, and you're trying different things to make it happen. Well, I've cooked scrambled eggs a lot in my life. And I've learned, what are good ways of doing that. Is any of that science? No, it's just instrumental. It's bringing about a result. And I think persuasion is just like that. How do you know when your persuasive technique has worked? You persuaded your your listener, you don't have to understand maybe you couldn't understand maybe it would be a waste of time to try to understand exactly why neurologically, that result came about the important thing is that it did or didn't know when it comes to assessing advice without having the support of science. I mean, we've we've sat here and we all we have a feeling that Blumberg advice generally is is good advice. How do we know that? I don't even think about studies. When when I think is that good advice? I just think about does it jive with my experience? Have I found myself to be more persuaded? I mean, when when we talked about the words plus pictures example, I mentioned how, as I read that advice, I thought back to all the bad PowerPoint presentations I've seen where the presenter bombarded me with all the different, you know, media at the same time, and I thought, oh, that's probably good advice. I don't have a study, I'm just one guy. We don't have a study of 200 people, and they understood something better or worse, depending on what they were exposed to. I just had my own experience. But that's enough for me to draw on and say That's good advice. That's bad advice. Same with writing advice. I have been working a lot lately on using shorter sentences, I find very often something that's a long sentence should be and is much more effective. If it's split up into two or three sentences. Do I have a study to support that? Absolutely not. But I can think, Oh, when I read good writing, that's one thing and good clear writing on complex topics. That's something I noticed about it. And then I tried to apply that to my own writing. And I see, gosh, that sentence, what does it look like? If I take that sentence and I split it into two sentences? Oh, I like how that sounds that does. That's punchier. That's clear. I don't have a study to back it up. But I do have my own experience. And I do have my own experience of whether it worked on me or not going to get back to this idea of achieving a result.
Tim Kowal 38:57
Let me ask you this way. If you had a choice between if you had to pick a trial consultant to help you help advise your your strategy, what evidence to offer what story to tell the jury, would you rather have a very successful social scientists or a very successful television writer?
Stefan Love 39:17
Hmm.
Jeff Lewis 39:18
Your wife? Well, your wife won't be listening to this. Don't worry.
Stefan Love 39:23
I might go with the TV writer. If we're talking about what's his story. How will I frame this evidence into a story that persuades persuades the jury? I think I might go with the writer, the TV writer, because I do think that and I don't think that's scientific. I don't think that I think that you can be better or worse at telling a story. And a TV and a talented TV writer is going to be good at telling a story. But is that science? I'm not sure it's more like they they're they're good at engaging our attention with the beats of a narrative. I mean, we feel engaged when we hear the stories they tell? Yeah, it's it's achieving real world results, I think more than its sign.
Tim Kowal 40:07
Now, what's your answer, Jeff?
Jeff Lewis 40:08
Oh, TV, hands down a TV writer, because it's all about grabbing attention and using storytelling and
Tim Kowal 40:16
yeah, no, I think so too. I think Stephen makes the point that, you know, social science has become very popular. They sell a lot of books. You mentioned Jonathan Hite in your article, Malcolm Gladwell. There's a several several authors who have popularized social science and how to explain the world around us. But yeah, there's a popular television writers have succeeded in capturing our imaginations for a lot longer than social scientists have.
Stefan Love 40:45
I think that if lawyers were limited to using only the tactics that have support from science, they could they would end up doing very little, because he just couldn't possibly justify everything you do when you're running a trial through, you know, a study, you have to go on intuition about what what achieves end result.
Tim Kowal 41:06
Yeah. Okay. Just the last couple of observations from Blumberg book, we're running a little long, but I did want to ask this question about, he talked about jury instructions. And this is something that's occurred to me too, you mentioned that studies show that jurors don't understand jury instructions. So just, you know, reading, you know, the judge spending half a day reading jury instructions to jurors is really not effective. They're not going to be shaken at any rate from their lifetime experience of what common sense is just by listening to the judge read the law. So with that in mind, what is the purpose of jury instructions? Are they are they just ceremonial? Is it just just for us? Appellate attorneys benefits so that we can say, look, they were duly instructed with the law?
Stefan Love 41:48
Ah, I would say it's ceremonial. I wouldn't say it's just ceremonial. I think the fact that it's ceremonial matters. I mean, what's the alternative that we don't even that we just give up any pretense and say, okay, Jerry, who do you like more? I mean, we have to, at least, we have to, at least, you know, make make a deferential gesture to the law, even if we might be cynical about the jury's comprehension of it, and of how the the possibility that the judge reading jury instructions could ever provide comprehension where it wasn't there before.
Tim Kowal 42:28
All right, so we've covered we've covered a lot of tips. I'd like to end by asking you to share with us if you would, maybe a piece of writing advice that you particularly like, or maybe an author or piece of writing that kind of is your muse or helps shape your approach to writing or to or to giving arguments at oral argument.
Stefan Love 42:47
I have to cite Paul Wofford, my my judge for my clerkship, he is a phenomenal writer, very clear, manages to, you know, never sound managed to present difficult legal concepts in just plain terms. And in a way that I strive to emulate I probably never will. But he his writing was a big influence on me having my draft opinions be completely rewritten by him into something that I thought oh, this is just there's no way to untangle how confusing this is. Oh, no, there is actually and he just did it. So if you ever need writing inspiration, look at Jed Blackford opinions.
Tim Kowal 43:30
Excellent advice. All right, Stephen, love. Thank you for joining us today. We're going to Jeff, do we have a few news and tidbits to give to our audience today? And Stephen, you want to stick around and maybe just offer any any comments if you have any to the couple of the cases we're going to read about?
Jeff Lewis 43:47
Yeah, sure. I could start with talking about a case. It's not a California case. That's why I found super interesting. It's Arkansas times versus Mark Waldrip. Coming out of Arkansas, I'm not sure which circuit and in 2017, Arkansas passed a law requiring public contracts to include a certification that the contractor doesn't boycott Israel, and a local newspaper sued saying that law violates the First Amendment this requirement for certification and the district court dismissed the action and stay on board. The Court of Appeal reinstated the law say it doesn't violate the First Amendment. And I will put a link in the show notes to this but I find it interesting because California has a very similar provision in California law and it'd be issued. See, if somebody takes us up to SCOTUS,
Tim Kowal 44:36
does that fall on a commercial speech distinction? Is it because it's a business that they have less entitlement to free speech?
Jeff Lewis 44:42
I think it was more it was more about just being content neutral, believe it or not, as opposed to commercial versus non commercial distinction?
Tim Kowal 44:49
Yeah, that'll be interesting to follow. Because it's
Stefan Love 44:52
about something extrinsic to the I mean, it's a it's about what the business is doing, you know, not in a speech way more like their action. Yeah,
Jeff Lewis 45:01
that could be too. That could be too. It just, it wasn't regulating, I guess direct enough a direct regulation of speech. Yeah.
Tim Kowal 45:10
Okay. The next tidbit is there's some some more news about the Los Angeles District Attorney George Gascon and his his efforts to to not enforce the three strikes law. He has now George guests don't guess Cohen has now filed a petition for review in the Supreme Court. In his brief, he argues that, quote for more than 25 years, this Court has declined to provide a definitive answer on the question of whether the law, the three strikes law violates the separation of powers. The time has come for this court to step in. And quote, that's that's Georgia scones petition for review to the Supreme Court on the constitutionality of the three strikes law.
Jeff Lewis 45:51
And I predict by the way, the Supreme Court will take that app, it's an interesting set of issues. I wasn't really fully satisfied with how the Court of Appeal resolved it and I predict the supreme court's going to take it up.
Tim Kowal 46:00
Interesting, Stephen, any, you want to weigh in there?
Stefan Love 46:04
No great insights there.
Tim Kowal 46:05
Yeah, I don't either. I'm, I'm not I'm not sure. I would be surprised, but sometimes I'm surprised. Okay, and then another bid on Orange County Superior Court Judge Derek Hunt was admonished recently by the Commission on Judicial performance over his conduct in four cases in recent years. I read through the admonish admonishment and noticed in two of the instances, Judge hunt ruled without allowing counsel to argue, and although the commission admonished him judge hunt did in his inimitable way, offer counsel some good advice on briefing when plaintiff's counsel in a certain case asked if he could submit an opposition before the judge went ahead and granted a motion to dismiss the case judge hunt replied, Well, the way it works is file when you can I'm not going to turn it down. I start reading and when I get bored, I stopped reading so put the good stuff up front. So I thought not proper but still good advice
Jeff Lewis 47:07
science or not science.
Tim Kowal 47:11
Right? Yeah.
Jeff Lewis 47:12
And the other tidbit when you're in front of Judge hunters by the way don't put your hands in your pockets ever is not like it when you go in his courtroom and argue with your hands in your pockets.
Tim Kowal 47:20
I believe he's find attorneys for hands in the pockets
Stefan Love 47:24
and they just want more eyes in their pockets. What's he find them whatever was in their pocket? Yeah,
Tim Kowal 47:32
yeah. So same advice is for a judgment debtor examination. Don't don't bring any cash with you.
Jeff Lewis 47:37
One other update I'll just kind of surprise to read this. In the potter handy case. This is the case where the LA and San Francisco da has joined forces to file a lawsuit against the potter handy law firm for EDA lawsuits contending they were Shakedown frivolous lawsuits in federal court, etc. But super surprised. See, the Callahan and Blaine in Orange County is representing Potter handy and they came back with a demurrer and not an anti slap. I could have bet money that Potter Handy was going to come out of the gates with an anti slap motion but anyway, they filed a demur I don't think there's been a ruling yet but on the issue see what Callahan Callahan and Blaine does with this case they are they're a good firm.
Tim Kowal 48:13
Yeah, that's an interesting one to follow. All right, well, that wraps up wraps up this episode again, and we want to thank case text for sponsoring the podcast each week we include links to the cases we discuss using case text and listeners of the podcast can find a 25% discount available to them if they sign up at case text.com/ca LP.
Jeff Lewis 48:34
And if you have suggestions for future episodes, please email us at info at Cal Pat podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. And remember to always keep your hands out of your pockets.
Tim Kowal 48:48
See you next time.
Announcer 48:49
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases 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.
Only a small fraction of cases and issues go up on appeal. That means trial attorneys see things that appellate judges don’t. So when high-profile family-law specialist Christopher Melcher sees an appellate court issue an unpublished opinion tackling a troublesome issue, he asks the court to publish it, for the benefit of the rest of us.
You should, too. Anyone can request publication of an unpublished appellate opinion. Even if you’re not a party to the case. Clear rules help everyone.
Watch the clip here.
This is a clip from episode 34 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.
On the topic of judgment enforcement, the new rule announced in Coastline JX Holdings LLC v. Bennett (D4d3 Jul. 7, 2022, No. G059552) --- Cal.Rptr.3d ----, 2022 WL 2527118 is that a judgment-debtor’s profit-sharing plan is exempt from levy under both ERISA and California law, because profit-sharing plans are non-assignable.
And on the topic of civil procedure, while a trial court lacks jurisdiction to reconsider a “final” order, that does not apply to interim rulings whose deadline to appeal has not yet expired. So the trial court’s reconsideration here was valid.
This clarifies a number of recent cases holding trial courts lacked jurisdiction to entertain motions for reconsideration.
Coastline involved a March 12, 2020 order to turn over a profit-sharing plan to the levying officer. Three months later in June, the debtor moved for reconsideration, arguing his individual retirement account and profit-sharing plan were non-assignable and thus exempt from levy under the Employee Retirement Income Security Act of 1974 (ERISA; 29 U.S.C. § 1001 et seq.).
The court denied the motion, but in July it entered a minute order stating the court “potentially reconsiders its ruling” concerning the profit-sharing plan. The court issued a tentative ruling granting reconsideration in August, and then actually granting on September 21.
On appeal, Coastline first argued that the debtor’s motion for reconsideration, filed three months after the March 2020 order, was untimely. Code of Civil Procedure section 1008 requires the motion to be filed within 10 days. Three months was way too late.
That’s true, the Court of Appeal acknowledged. But according to the Supreme Court, an untimely motion for reconsideration “do[es] not limit the court's ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107 (Le Francois).)
Ok, but if nothing prevents a trial court from considering a late motion for reconsideration, doesn’t that lay waste to the statutory 10-day window? Perhaps, but the Supreme Court was clear on this as well in Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1249 (Brown)): “it should not matter whether the “judge has an unprovoked flash of understanding in the middle of the night” [citation] or acts in response to a party's suggestion.” (Le Francois, supra, 35 Cal.4th at p. 1108; see, e.g., In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1308 [although motion for reconsideration that is unsupported by new legal authority or new evidence violates § 1008, such a motion may inspire the trial court to reconsider its previous decision on its own motion].)”
Coastline then argued that the trial court had no jurisdiction to reconsider its order because it was final. On this, Coastline had some solid authority. (See here.)
But the court disagreed. First, the postjudgment order was an interim order, not a final order akin to a judgment. For this, the court cited the Supreme Court,s Le Francois decision again, noting its distinction that ‘... final orders ... present quite different concerns’ from interim orders.”
The other facet of Coastline’s argument was a little different. Coastline noted that, even if the March 2020 postjudgment order was merely interim, by late September when the trial court issued its reconsideration ruling, more than six months had passed. And so the time to appeal from the March 2020 order had expired. So that made the March 2020 order final and beyond the trial court’s jurisdiction to reconsider, right?
On this score, the court accepted Coastline’s major premise, but rejected the minor. The court pointed to the trial court’s July minute order: “We construe the language of the court's July 6, 2020 minute order that it “potentially reconsiders its ruling with respect to distribution of $60,000 from the profit-sharing plan” (italics added) as the court then commencing the reconsideration process and informing the parties that, after it completed that process, it might reverse (potentially) the relevant portion of the March 2020 Order.” The court noted that the trial court ordered further briefing and set a further hearing.
Here is how the court concluded:
“As the trial court in July 2020 commenced its reconsideration of the PSP portion of the March 2020 Order on its own motion well before the August 26 deadline for filing an appeal from that order, the trial court had jurisdiction to proceed. In any event, the court clearly had reconsidered the March 2020 Order by the August 10 hearing as evidenced by the court announcing its tentative ruling reconsidering the status of the PSP as automatically exempt from levy. As both the trial court's announcement of its intent to reconsider the March 2020 Order and its tentative ruling reversing the part of that order as to whether the PSP might be levied upon occurred before the deadline for filing an appeal from the March 2020 Order, we do not need to address the extent to which a trial court has inherent authority to reconsider an order after the time to appeal that order has passed.”
Something seems odd about this reasoning. Jurisdictional rules ordinarily cannot be extended except by statute. But here, the court held that the time in which the trial court could reconsider the order was extended when the trial court indicated it would “potentially” reconsider it. After that point, the Court of Appeal does not suggest how long this “potential reconsideration” period might last. This seems to leave nothing of the jurisdictional time limit for the trial court’s period to reconsider the order.
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.
When you look up an answer whether an order is appealable, the cases are supposed to give you straight answers. But here are three cases that give surprising answers. (Ok, really just two — if you are surprised by the second one, you were mistaken.)
Also: Counsel horse-traded verdict forms in a recent med-mal case in Silvester v. Niparko for limitations on judgment-enforcement. (See Tim’s write up on Silvester here.)
We also discussed:
Jeff Lewis 0:03
No lawyer ever got sued for malpractice for filing too many notices of appeal.
Announcer 0:07
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 0:21
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:23
And I'm Tim co off. On this podcast. We tried to provide a resource for trial attorneys and appellate attorney, both Jeff and I are appellate specialists. We split our practices pretty evenly between trial courts and appellate court, and in each episode, we try to bring our audience some legal tips, news or insights that they can use in their practice.
Jeff Lewis 0:41
And welcome to episode 42 of the podcast and a quick announcement. This podcast is sponsored by case text case Texas, a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019. And I highly endorse this service listeners of the podcast will receive a 25% lifetime discount available to them. If they sign up at case Tech's dot com slash scalp. That's case text.com/ca LP.
Tim Kowal 1:10
All right, Jeff. So let's say we catch up on some recent cases. I found some cases recently that caught my eye covering topics of appealability. So we're going to discuss whether an order granting summary judgment might be appealable, despite the usual rule that orders granting summary judgment are not appealable. We'll also discuss the question does a minute order have to be signed to be appealable? In recent case confirms no. And then we'll cover whether a vexatious litigant may appeal an order denying a pre filing request to file suit. And Appellate Court recently said no. Okay, so the first case will cover whether summary judgment orders are appealable. Reid versus Aviva USA Corp held that the summary judgment order granting summary judgment was appealable. That case was last month, June 2022. So, Jeff, the normal rule, and correct me if I'm wrong, is that orders granting summary judgment are not appealable. Is that your understanding?
Jeff Lewis 2:10
Absolutely, without exception?
Tim Kowal 2:14
Well, you'd be wrong on that last part. Why do you have to say that last part, Jeff, orders granting summary judgment are not appealable. It says so right? In Code of Civil Procedure section 437 C subdivision am one that if you want to get review of an order granting summary judgment or denying summary judgment, you can file a writ, but sorry, no direct review. And there are many cases that confirm that rule except the rule, it turns out is a lie as it proved in read versus Aviva USA Corp. The trial court they're granted defendants motion for summary judgment. For some reason, the trial court did not enter a formal judgment. So the plaintiff appealed from the order granting summary judgment. And when it got up to the Court of Appeal, the the Appellate Court acknowledged that in order granting summary judgment is not appealable, for the reasons that we just discussed, but the court reviewed the order on direct appeal. Anyway, here's the here's what the courts rationale was, quote, because the trial court's order granting summary judgment stated that reads claims against Aviva were quote dismissed with prejudice in their entirety. we construe the order as an appealable judgment because it showed a clear intent to finally dispose of Reid's complaint against respondents in quote,
Jeff Lewis 3:27
hang on, are all orders granting summary judgment? Aren't all of them dismissals with prejudice?
Tim Kowal 3:35
You know, if anybody has or has to be Yes, right. I've
Jeff Lewis 3:39
never heard of an order granting summary judgment, not Jude occation. But judgment. That is, oh, yeah, without prejudice, go ahead and refile.
Tim Kowal 3:45
All of them are only awaiting the formal order. But if you don't actually have to wait for the formal order, then why wouldn't this rationale apply to every order granting summary judgment? So sorry. So Jeff, I have some philosophical problems with this about, you know, the rule of law and jurisdictional rules should mean what they say and all that. But I can. I won't bore you with abstractions. I can think of at least two practical problems with treating this jurisdictional rule as discretionary as the Reed Reed Court did. First, the court has the trial court has a duty under Code of Civil Procedure section 664 to enter a judgment. So let's say it's been a few weeks after an order granting Summary Judgment, the plaintiff wants to appeal but he's waiting for the judgment to be entered as the as the statute requires, but it hasn't been entered. So maybe the the attorney says okay, well, I better file a motion under CCP 664 To have a judgment entered. But then by the time the trial court gets around to granting that motion, and the clerk enters the judgment, it's quite likely that 60 days is already elapsed from the entry of the order granting summary judgment. So litigants could be tricked into blowing their appellate deadlines. And even if the appellant files the notice of appeal of the order, granting summary judgment in time, what happens when that Trial Court finally does enter judgment. Does the appellant have to appeal from the judgment to are there two appealable orders here? And does the judgment extend the time to file the appeal? The normal rule is that you don't get any extensions of the time to file an appeal other than the extensions provided under Rule 8.108. So these are some practical problems that I have with the ruling. The second practical problem is if an order granting summary judgment is appealable, does that mean that the deadline to file a memorandum of costs and a motion for attorneys fees runs from that date, because we know that the the deadline to file a motion for attorneys fees is the same as the deadline to file the appeal? And if the order granting summary judgment is the appealable order, then it seems that the attorney trial attorneys are going to have to make a note on their calendars, that their motion for attorneys fees is going to have to be is triggered based on the entry of that order and not to sit around waiting for entry of a formal judgment. Hey, hang on, calm down. Tim,
Jeff Lewis 6:02
is it true? There's a huge difference in what the Court of Appeal did here which says that this order is construed as an appealable judgment, as opposed to saying, cited or made summary judgment orders are themselves appealable when you are construing, something as appealable that's something what kinda like saying, Hey, we're gonna treat this almost like a writ petition. And we're gonna forgive a mistake. But that's very different than saying, hey, every lawyer in California, get ready to read Calendar or learn how to read Calendar appellate deadlines, because you're now going to have double the deadlines in every MSJ case.
Tim Kowal 6:35
What are you saying that? Is this kind of like a like a Schrodinger is appealable judgment type of situation? It's, it's both appealable and non appealable, depending on whether appellate court later deems it to be appealable. Yeah, I think there's a there's a great line in a case, I can't remember the name of the case, but it says matters of appellate jurisdiction cannot be made into matters of appellate discretion. So it's a jurisdictional rule, or it's a discretionary rule. But you can't go around deeming things appealable. It either is appealable, or it's not appealable. That's my understanding anyway. I think what the Court of Appeals should have done here was to catch the problem when the appellant filed the Civil Case Information Statement. That's what the Civil Case Information Statement is for. It's why you're required to attach your appealable order to the Civil Case Information Statement. So the the clerk's and research attorneys can raise any red flags to appealability problems. And then once once they noted that problem, send it back to the plaintiff and say, go back, get a formal judgment. And we can either you can either do a new appeal, or we can deem the appeal to be taken from the formal judgment. Once it's entered, we can avoid all these problems, and we can take appealability with the seriousness that it deserves instead of deeming things to be appealable. Just for convenience sake,
Jeff Lewis 7:53
I construe your comments on this case as well taken. Okay,
Tim Kowal 7:57
next case about whether minute orders have to be signed to be appealable. This case is Liang vs. Shi, it's out of the fourth district Division Three down here, Santa Ana, also a June 2022 case. Now maybe I got the wrong idea into my head, Jeff, but I had always thought that a minute order did have to be signed to be appealable. But after reading this opinion, I've been disabused of that, of that notion, even though inlaying Vichy the opinion is unpublished, I think it's holding is correct that the unsigned minute order there was appealable. So Lange involved in action to enforce a marital settlement agreement, the trial court awarded the mother $100,000 and fees, but the court made the award in an unsigned minute order and then only later signed a formal order. So the father contended that the minute order was not the appealable order, because it was unsigned, that the father timely appealed from the from the later formal, signed order, but it was untimely if the unsigned minute order was the appealable order. That's it's actually easy to find lots of cases that backup the father's position, that unsigned minute order is not appealable. And I've I've seen these authorities myself, that's that's why I sort of have the idea in my head that an amended order has to be signed. So I was surprised when I first read the opinion. And in fact, the appellants attorney was a certified appellate specialist. So So even the best of us. So So Jeff, I'm in good company, that I'm not the only person out there who had that idea. But I went back and looked at the authorities that it turns out all of the authorities that say that a minute order has to be signed to be appealable. We're minute orders of dismissal under Code of Civil Procedure, section 581 D, and minute or minute orders or any order of dismissal of a case does have to be signed under that statute. But that rule doesn't necessarily apply to other types of minute orders. So if you're if you're like me, then and you think that a minute order has to be signed to be appealable be disabused of that notion. ended orders very well may be appealable if they're final.
Jeff Lewis 10:03
Okay, well, let me ask you this, Tim, not exactly the facts of this case, if you get a minute order in a case and the minute order states on its face, hey, attorneys prepare a formula order for the court signature, and it says that the minute order and you're approaching day 59, they 60 After that minute order, and no formal order signed by the prepared by lawyers or signed by the court has been forthcoming. Do you file a notice of appeal on that minute order just to be safe?
Tim Kowal 10:31
Hey, you know, Jeff, we didn't have a stump Tim slated for today. But but I'll answer the question that those words are usually a dead giveaway that the that the order is not final because something further is contemplated, but it still would make me nervous, just like it still makes me nervous. If there's there's an order that's final, it's it's served. Maybe it only lacks the file stamp, even though the rules say that no one has to be filed stamped in order to trigger the appellate deadlines. I don't know if I want to hang hang my my face and possible malpractice on a single item like a file stamp or just language stating that everything else is final, except the court contemplates maybe issuing a more formal order later on. I think I would still I would, I would make sure that that that formal order gets taken care of within my appellate deadline. I think that's the first thing I do. But if, if the client comes to me on day 59, I'd say take the appeal, what would you do?
Jeff Lewis 11:25
Absolutely. Nobody ever got sued for malpractice for filing too many notices of appeal. And yeah, sometimes there's there's things outside of your control when you know you're waiting on the other side of the court to sign or formalize or finalize an order. So yeah, and by the way, you can clean it up later, when you have two or three notices of appeal. You can either dismiss them or consolidate them or whatever deal with it later, but better to be safe than sorry.
Tim Kowal 11:50
Agreed. All right. The third case that I wanted to discuss this is about the vexatious litigant. This is marriage of deal. This is out of the first district third division also June of 2022. Another non published opinion of the vexatious litigant. There's not a very sympathetic figure to next husband many years after the divorce proceedings were done. He's still filing appeals and lawsuits. He's got 12 appeals at the point. This this case starts and seven repetitions. They've all been the meritless. One in some of his appeals, the court has said that the ex husband has made quote, implicit threats against various members of the California judiciary in the state bar. And the ex husband observes, the court observes the ex husband now quote, stands alone on the silent battleground, rattling his saber, so already
Jeff Lewis 12:42
wouldn't be a good idea to represent yourself in general and especially in a emotional divorce case. Fantastic idea. Go ahead,
Tim Kowal 12:49
right. So you can you can already see the trajectory of how this is going to turn out. He's he. He's been declared a vexatious litigant. Once a court has declared someone to be vexatious, under Code of Civil Procedure sections 391 and 390 1.7. You have to file a pre filing request to file your lawsuit with the providing presiding judge. So the ex husband here did so Request permission and predictably it was denied. So the ex husband going for appeal number 13 files his 13th appeal from the denial. The court predictably finds that the the appeal is frivolous, but goes the extra step to say he didn't even have the right to appeal because the pre filing denial under Section 391 is not an appealable order, and a pre filing order denying a vexatious litigants request to file new litigation is not among the appealable orders listed in in the Code of Civil Procedure section nine oh 4.1 the appealability statute. And it's not a post judgment order, the court holds because the order does not involve issues different from the underlying judgment, and it doesn't involve enforcement or stay issues. The court also holds contrary to another published decision that the pre filing order is not an injunction or an order denying a motion to dissolve an injunction. Those are normally appealable orders. And another case, Luckett versus pianos a 2008 opinion had held that such orders such denials of a pre filing request are appealable as denials of an order requesting to dissolve an injunction but the court split from that authority here not it didn't mention that authority, but just just held it the vexatious litigant only has one crack at that requesting leave to file a new lawsuit. And denials of such requests are not appealable I was surprised by this. I learned of it by reading Professor Shawn Martin's blog, and he was also surprised by it he said, quote, We don't generally let a single judge decide things once and for all without any right to review whatsoever. And I I tend to agree with that. I think that his case was met was meritless. I would have no qualms with the with the court's conclusion that it was a frivolous appeal, but I'm confused why it went the extra step to find that he had no right to appeal to begin with.
Jeff Lewis 15:10
Well, let me ask you this, and maybe you haven't litigated against enough vexatious litigants to appreciate the need for some finality here. The court basically said here that is one and only option was a writ and they've denied the writ. Right. Right, right. There are lots of areas of law like Liz pendants, orders, expunging Liz pendants and orders on peremptory challenges and orders on disqualifying counsel and Public Records Act things that are only reviewable by read. I gotta tell you, I fall in my camp of this particular type of order dealing with vexatious litigants is properly circumscribed, and the amount of review and due process given to folks like this who really abused the legal system,
Tim Kowal 15:54
so you're okay with with I'm only getting written review? Yeah, I'm saying, yeah. Okay. What about what oh, when someone files, an anti slap motion, and it's denied? Maybe, maybe you get one crack at that, and and review should be by read only.
Jeff Lewis 16:09
Tim, anti slap work is the most sacred work than any lawyer can do. In the practice of law. It stands in that category on its own.
Tim Kowal 16:17
That's right. So sometimes I forget that. Okay. The next case, Sylvester versus Nick Parco. The reason this caught my eye, Jeff, is because I saw that the Court reversed a jury verdict based on the trial judges improper exclusion of evidence. And well, I'll include a link to the case summary that I wrote up on this case, but the part I really wanted to talk with you about was this, it wasn't discussed at length in the opinion, but what happened is that by the time the the plaintiff and defendant got up to preparing the jury verdict forms, normally, as you know, the plaintiff usually wants a general verdict form. This is a bleed. This was yeah, this was a medical malpractice action. So the plaintiff wanted a general verdict form he, he just wants the the jury to come back and say, yes, there's liability and then get right to filling in the big fat dollar amount. The defendant wants more opportunities to, you know, to trip up the jury to get the jury to answer a lot of interrogatory ease and explain exactly how there was liability, how there was causation, whether there was there was damages and everything else. So what the what the parties did here is they came to a compromise, and the compromise was that was on judgment enforcement. And they agreed that if plaintiff got a jury verdict, that that that enforcement of the of the judgment would be only against insurance, and would not would not be enforceable beyond that. I thought that was interesting. Maybe I maybe that this happens more commonly. I've just never heard of it. What about you, Jeff, have you heard this before?
Jeff Lewis 17:50
I've never I've never seen anything like this. I'd say I'm not suggesting anything improper happened here. But I wonder if this was insurance Council, and if insurance Council could even ethically propose or enter into such an agreement? Yeah, super interesting raised a lot of issues in my in my head.
Tim Kowal 18:05
Do you Do you know, if if such an agreement would be enforceable? Would it be practicable? I mean, once you get a judgment, it just seems like, you know, you have the full bevy of the enforcement of judgments law at your disposal, you will be able to go in and get writs of execution and judgment debtor examinations. The clerk is not going to know about this order, I guess. I guess it's just on the honor system.
Jeff Lewis 18:25
I think we've got in the next few weeks, perhaps someone who's a guest, who does judgment collection, I'd be interested to ask that guest that question. Oh, there are other ways by contract to carve out or limit judgment enforcement methods.
Tim Kowal 18:40
Yeah. Good tip. Let's, let's put a bookmark on this one and come back to it. All right, Jeff, I think you had a few cases you wanted to cover?
Jeff Lewis 18:46
Yeah, there was a Ninth Circuit decision that came down and Brack V Newsom, you know, full discovery, my firm filed an amicus brief below on this case, but involved a group of parents who sued the governor over school closures. And the district court in California dismissed the case sewist Vontae. On summary judgment went up to the ninth circuit, there was a decision on the merits in the Ninth Circuit, and then there was unbond review. And the whole case was dismissed as moot on the on the issue of schools are open now. And this was the first worldwide pandemic that the school system had to deal with in many years, and basically gave Newsom a pass saying it was the first time he gets a mulligan on this one. It was interesting, because the plaintiffs in that case, wanted to get an actual adjudication of well, what about the next time? What about, you know, what is going to be the standard for opening and closing schools next time? And then next, I could said, Now, it's moot. It was an interesting disposition. And then the second case I want to talk about and this is a super interesting one, it has to do with evasive discovery responses. Now, Tim, you're familiar with the rule of Union Bank, the Superior Court in summary judgment motions that factually devoid discovery responses can be used to satisfied defendants initial burden of proof on an MSJ. Right, right. And there's a related rule in D'Amico versus Board of Medical Examiners that holds a party opposing summary judgment can't create a travel issue of fact, by using a declaration that's at odds or contradicts admissions made in a deposition. Once a deposition is taken, the client is locked in and can't later declared do a declaration that is at odds with his deposition testimony this month or last month, I should say a third iteration or extension of these two cases was issued by the second district in a decision in favor of US Bank. The cases field versus US Bank and the rule announced by the second district is that an evasive discovery response cannot be leader contradicted by a more elaborate declaration in opposition in opposition to a summary judgment motion. So in the field case, the bank had asked the plaintiff of contention interrogatory about a key issue in the case. And the plaintiff answered the contention rod with one word, unsure, as US Bank moved for summary judgment on the basis of that response, and the plaintiff opposed to summary judgment motion with a plaintiff's declaration containing more facts about that contention, beyond the word unsure, and the trial court granted summary judgment and then the Court of Appeal affirmed in from the decision issued by the second district, the Court held that California Civil discovery process aims to unearth the truth of the case, thus facilitating settlement on the basis of the mutually expected value of the suit. Evasive discovery responses frustrate this goal by concealing the truth a party cannot evade discovery duties, and then try to defeat summary judgment by adding factual claims to create last minute disputed issues. That was the tactic here and it fails, we publish to reiterate your heart scuze me to reiterate that you harm your clients interests when you craft or transmit evasive discovery responses. This case, I imagine Trial Lawyers gonna be citing this pretty frequently alongside unionbank and the and the de Mikos. Case. And this case kind of reminds me of one of the policies one of my favorite judges downtown LA Rupert Birdsong, he tells every attorney that appears in his courtroom on CMCS are trial setting that his courtroom only has two rules, litigations, not poker, you show your cards early and try the case that you have not the case that you wish you had. And I like this holding, what do you think about it, Tim?
Tim Kowal 22:18
Yeah, I wonder what what would happen if instead of trying to supplement that interrogatory response, just be a declaration attached to the summary judgment? Opposition, if they had just filed a supplemental response to this to interrogatory ease would that have whatever changes the result?
Jeff Lewis 22:35
You know, one day later, maybe, I guess, depends on when the MSJ was filed. If that supplement happened after the MSJ is filed, I would guess some of the fields case that wouldn't that would not be satisfactory?
Tim Kowal 22:48
Or maybe consider if you find in reviewing your discovery responses or seeing them attached to a motion for summary judgment that you have given an incomplete or arguably evasive answer. Maybe you file one of those motions under 437. C, I think it's H to get a continuance of the hearing on the motion and so that you can conduct further discovery and then use that as as an opportunity to supplement your responses. Yeah, although and I also say
Jeff Lewis 23:13
here, this was a pretty extreme case, it's pretty easy to say the one word unsure, is evasive. There might be paragraphs and paragraphs that one could write that may not be so easily categorized as evasive.
Tim Kowal 23:26
Yeah, yeah. The one word response unsure, I think was not well taken here. I think I agree with you. I think I liked I liked the holding. I think I agree with it. But regardless, it's a clear rule. And as we talked about earlier, it's important that we have clear rules that all we can do. We can ask them judicial opinions is that they give us clear rules. What is that there's a legal maxim that says a good law is that which affords as little discretion as possible. Yeah. That the judge? Okay. What do we got next year? Oh, I think I wanted to talk about just briefly this this case that was making the rounds in in the news a few weeks ago. This is a cautionary tale in using social media at your law firm. So what happened was after the defense attorney obtained a successful defense verdict in a medical malpractice case, the attorney went back to his law firm and regaled the rest of his staff with the glorious victory and how they pulled victory out of the jaws of defeat, including the ringing of a victory bell. Now, it seems seems a little a little gauche, maybe in poor taste, given this was a medical malpractice case where someone died and then posted the video and social media. But here's the part of the attorneys remark, again, made made in this video that really got an a negative reaction. The attorney described the case as involving, quote, a guy, the plaintiff that was probably negligently killed, but we kind of made it look like the other people like other people did it. And so we'll post a link to that in the show notes that was making the rounds. I don't know What's what's become of that the video was almost immediately taken off of the firm's website. It was amazing that I'm sure someone had a stern talking to about posting that on the firm's website. Maybe they thought, Oh, well, it's just a great example of the kind of victories that we achieve here. But very bad luck.
Jeff Lewis 25:18
It was a fantastic victory. I think they got a defense verdict in 20 minutes or something ridiculously small amount of time that the jury deliberates. So it was a huge victory. I gotta tell you, I've got three employees at my firm, my firm, it's important to recognize milestones and recognize achievement. So having a bell that employees ring, they recognize their achievement, no problem with that. But yeah, the decision by somebody to record that and puts it put on social media and the canons of ethics that talk about not misleading tribunals, with with statements of fact that are at odds with the truth. Yeah, this is a real problem.
Tim Kowal 25:54
Well, I would have thought you would just have a victory bell for this brief has only once one space after every sentence, and it is in the correct font, and does not use too many adverbs.
Jeff Lewis 26:06
We we did just recently move offices and we did have a discussion with my staff about installing a victory bell like this for every time we got a an appellate brief on file without a clerk rejection because especially down in Orange County, every once in a while The clerk will find a different rule to reject a brief with so stay tuned. We might still install one.
Tim Kowal 26:26
I feel that pain.
Jeff Lewis 26:29
Okay, now, you mentioned something about the appellate practice network. Yeah, this
Tim Kowal 26:33
will be of interest to appellate attorneys. There's a new appellate practice network that's just been launched by the California Lawyers Association, part of through the litigation sections committee on appellate courts. The appellate practice network is the first and only public publicly open membership statewide bar group for appellate lawyers and lawyers interested in appeals. Members of the appellate practice network will have access to the statewide network of appellate attorneys through a listserv open to any member of the California Lawyers Association at no cost. And we'll put a link to the to join the appellate practice network in the show notes, I think could be an interesting, interesting resource. I'm looking forward to see what what crops up on it I've I joined when I first learned about it a couple of weeks ago. How about you, Jeff? Yep,
Jeff Lewis 27:20
I joined I'm looking forward to seeing what kind of information can be gleaned from this resource.
Tim Kowal 27:25
Okay, I think that rounds us off for for today. Yes, it
Jeff Lewis 27:29
does. Again, we want to thank case tax for sponsoring the podcast each week, we include links to the cases we discussed using case texts and listeners of the podcast can find a 25% discount available to them if they sign up at case text.com/help. That's case text.com/c A lp.
Tim Kowal 27:45
And if you're a listener to the podcast, and there's a subject that we haven't covered that you think is sorely needed, or there's a guest that you think would be would make a great interview on our podcast, please let us know it by emailing us at info at Cal podcast.com. And on our future episodes will continue trying to send you more news tips and insights you can use to lay the groundwork for an appeal when preparing for trial. See you next time.
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Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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Almost any order having to do with an anti-SLAPP motion is appealable.
Almost.
In Kaplan v. Davidson (D2d7 Jul. 11, 2022 No. B312826) 2022 WL 2662982 (nonpub. opn.), Kaplan defeated Davidson’s anti-SLAPP motion. Orders granting or denying anti-SLAPPs are appealable. (Code Civ. Proc., § 904.1(a)(13).)
Kaplan then moved for attorney fees. Orders granting anti-SLAPP fees are appealable, as an “order after an appealable order.” (Code Civ. Proc., § 904.1(a)(2); Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244.)
But Kaplan’s motion for fees for defeating the anti-SLAPP was denied. And on appeal, Kaplan learned that this is the one order after an anti-SLAPP motion that is not appealable.
The court followed the holding of Doe v. Luster (2006) 145 Cal.App.4th 139, 142 (Doe). The Doe reviewed both a denial of an anti-SLAPP motion and a denial of fees. Although the former was appealable, the latter was not. The statute makes orders on anti-SLAPP motions appealable, but not orders on anti-SLAPP fee motions. And there is “no creditable argument that combining the two motions—one that results in an immediately appealable order; one that does not—somehow transforms the nonappealable order into one that is appealable.” (Id. at p. 150.)
No creditable argument? Had Doe gone too far? The Fourth District, Division Three thought so. In Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265 (Baharian-Mehr), the court thought that, so long as it has to review the anti-SLAPP denial, it might as well review the fee denial. After all, to defer the latter issue “artificially separates two intertwined issues” and potentially wastes judicial resources. (Id. at p. 274.) This “would result in absurd consequences the Legislature never contemplated.” (Id. at p. 275.)
The unpublished Kaplan opinion sided with Doe. “The decision whether to allow an immediate appeal from the denial of a request for attorneys’ fees is a policy decision for the Legislature to make.”
But whether the Second District thinks there is a “creditable argument” that SLAPP fee denials are appealable, there is an argument supported by published authority. Despite the conflict in authority, trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
“You have an informal writing style.” How do you take that? Compliment, or criticism?
This is hard to answer, says legal writing pro Ross Guberman. There is a strong trend in favor of more direct and approachable legal writing—and in this sense, “informal” is a compliment. But there is also a trend among judges—and lawyers following suit—toward the pithy (Twitter-ready), the precious (pop-culture-referencing), and even the biting (Judge VanDyke’s McDougall concurrence).
While there is something to be said (good or bad) about the attention-grabbing lines, Ross explains what really takes skill—and achieves persuasion—is to write as though you were having a conversation.
Watch the clip here.
This is a clip from episode 33 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.
Lawyers in California courts may not rely on unpublished cases. But federal courts may. And California courts may rely on federal courts—even when the federal court relies on an unpublished California case. In Meza v. Pacific Bell Telephone Co. (D2d3 Jul. 12, 2022 case no. B317119) 2022 WL 2680080, that’s just what a California court did.
Meza filed a class action against his employer, Pac Bell, over meal and rest violations. The trial court denied class certification as to certain of the claims and Meza appealed from this order (among others).
The Court of Appeal reversed, finding that the claims were common among the class members. As part of its analysis, the court relied on a Ninth Circuit decision in Magadia v. Wal-Mart Associates, Inc. (9th Cir. 2021) 999 F.3d 668.
But as the Meza court acknowledged, the Ninth Circuit relied on two unpublished California appellate decisions in its analysis of the issue. Meza further acknowledged that “we are not permitted to rely on such cases,” citing Airline Pilots Assn. Internat. v. United Airlines, Inc. (2014) 223 Cal.App.4th 706, 724, fn. 7. But, the resourceful court went on, “a federal court may do so,” citing Employers Ins. of Wausau v. Granite State Ins. Co. (9th Cir. 2003) 330 F.3d 1214, 1220, fn. 8.
This is one of the many ways courts commonly disregard the no-citation rule under California Rules of Court rule 8.1115. (I list more here and here.)
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.