Although the defendant specifically invoked his constitutional and statutory right to to be “personally present” at his sentencing hearing, the California Court of Appeal in People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___, held that limiting a defendant to a virtual appearance, while legally improper, creates no harm. The court affirmed the 10-year sentence.
To the prosecution’s credit, it conceded it was error not to hold an in-person hearing. The state constitution provides that a “defendant in a criminal cause has the right ... to be personally present (Cal. Const., art. I, § 15), and this right is also guaranteed by statute. (Pen. Code,2 § 977, subd. (b)(1) [defendant in felony cases “shall be personally present ... at the time of the imposition of sentence” and “at all other proceedings” unless that right is properly waived in writing].)
But error is only the first step to reversal. The appellant also has to establish the error affected the result. And the court found no difference between an in-person and a remote hearing: “There is no indication in this record that Whitmore's physical presence in the courtroom would have benefited his case in any way or otherwise altered the outcome, nor does the record reflect any difficulties or irregularities attributable to Whitmore's remote appearance.”
Comment: Consider the dignity our courtrooms were designed to arouse: the impressive wood-paneling and high ceilings, the bailiff’s announcing “all rise” when the judge walks in, the other catechisms of justice all present in the courtroom. And yet in the space of a few months, we are to be persuaded that this was all no different than holding court in our bedrooms, with trousers optional?
The Upshot: If you want to preserve your right to an in-person appearance — whether that be at trial, at a hearing, or at a deposition — make a record why the difference matters. Here are some ideas:
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.
After Jeff quizzes Tim on a bit of appellate esoterica about the automatic 15-day default extension for appellate briefs, the co-hosts discuss whether appellate justices modulate their approaches to sympathetic cases. The conversation also covers recent cases involving:
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.
Tim Kowal 0:02
But the court is going to be a whole over the place on a jurisdictional issue. How long can it maintain line that it's a jurisdictional issue? It's all jurisdictional if we're gonna publish the decision.
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. Welcome, everyone. I
Tim Kowal 0:26
am Jeff Lewis. And I'm Tim colwall California Department of podcasting license flagged for review. The California appellate law podcast as a resource for trial and appellate attorneys. Jeff and I are appellate specialists. But both our practices are split about even between trial courts and appellate courts. So in each episode, we try to bring our audience of legal practitioners news that they can use in their practice.
Jeff Lewis 0:52
Welcome to Episode 31 of the podcast.
Tim Kowal 0:55
So we don't have a guest for for you today. But Jeff did have an idea where he came across very interesting appellate conundrum. And he thought he would try to stump Tim, whether he could come up with the answer or not. So you want to set it up, Jeff, and lay it on me and see if see if I can come through with shining colors or whether I fall on my face?
Jeff Lewis 1:17
Yeah, sure. Now, this is actually came out of a discussion I was having in my office with my staff, and none of us knew the answer. So we've got we've outsourced Tim, in a new segment called stump Tim, where I asked him a vexing procedural question. Watch him stumble around for the answer. So here this in every appeal, if the opening respondents brief is not timely filed, the clerk will issue a 15 day default notice providing additional 15 day free extension to get a keep on file. That's a rule everyone's familiar with. And the rule only applies to opening and respondents brief not replies. Everybody pretty much knows that. Here's the twist. When you have an appeal and across appeal, you've got four briefs, not three, and you have combined briefs. She'll have an appellant opening brief, and then you'll have the respondents response to that and the opening combined with the opening process of deal, the grief. And the question that my staff and I were wondering was, will be appellant get the benefit of a second 15 day notice for the third brief, the combined appellants reply and cross respondents break. If that party has already received a 115 day notice for the opening brief, will they get the benefit of a second 15 day notice for the third brief?
Tim Kowal 2:34
Okay, so you have a combined scheduling or combined combined briefing? Do you have a combined scheduling order? In my experience? Usually when you have combined briefing, you get a get a scheduling order.
Jeff Lewis 2:47
Yeah, usually it makes sense by stipulation of parties, you present it to the clerk, the clerk says, okay, for briefs, and here's where they're going to be filed.
Tim Kowal 2:53
Yeah, but it doesn't say I kind of think of it normally, the scheduling order doesn't make reference to whether you get the 15 day default extensions on this one. So is it the question is, is it more akin to a respondents brief on which you do get the 15 days? Or is it more akin to a reply brief for which you do not get the 15 days? Because this is a combined respondents brief and a reply brief? I would say that you get the 15 days, but gosh, I would not want to risk it.
Jeff Lewis 3:32
would your answer be the same? If you've got a first 15 day extension on the opening brief, and then when the third brief came due, you're gonna be expecting a second 15 day extension?
Tim Kowal 3:42
I don't think it doesn't matter to me whether you got the whether you took advantage of the 15 days on the opening brief. And I don't think courts look at well, we would give it to you, but you already took 15 days for your first brief.
Jeff Lewis 3:55
All right, that's your final answer.
Tim Kowal 3:57
So to give you an answer, I thought I just stumbled around. If you did, I say I say you do get the extension. But my confidence level is only like 65%.
Jeff Lewis 4:10
Your gut instinct is right, that you should get the extension. And your caution is also right. In terms of the advice I gave to my staff about not relying on that the answer is to be found in rule 8.220 Subdivision B, which refers to just combined briefs. And 8.220 B says when you're finally a combined brief, you get the benefit of a 15 day extension doesn't mention anything about getting a second 15 day extension or default notice. I think more or less you're correct.
Tim Kowal 4:42
Interesting. Interesting. So it just mentioned a combined brief. Yeah. All right. Yeah. Take that the mean any combined brief.
Jeff Lewis 4:50
Yeah. So the first person who writes the fourth brief in the series, which is a pure reply brief, that'd be cross appellants reply brief would not get the benefit of the 15 days.
Tim Kowal 5:02
Yeah, yeah. So you could see, you could see up to 45 days in in three different default extensions for the combined opening brief combined second brief combined third brief, before you get to the final fourth brief, with no extension.
Jeff Lewis 5:17
All right, I'm going to call that segment a rousing success. And I'm gonna encourage all of our listeners to email me vaccine questions that they wished me to torture you with.
Tim Kowal 5:25
Yeah, I did feel like I was stumbling around quite a bit. All right. So with that, with that segment completed, I had a couple of cases, recent cases, I wanted to talk about Jeff, you know, mind, a first couple of cases involved defective notices of appeal. And this is a kind of a perennial topic, I like to like to address just because of different ways that that courts take them up. It's a jurisdictional issue. It's supposed to be one of those issues that you don't see a lot of variation. There's just one rule. But I see more than one one rule sometimes. And so here's, here's a recent case, Ramirez versus Oxford properties that have the fourth district Division Two is from April 2022. And this is my example of how I would expect a court to handle a defective notice of appeal. So in this case, there were two motions to vacate a dismissal of a complaint. The first motion had suffered from an excusable technical mistake, but the court would not excuse the mistake and and said, No, you got to file a second motion to vacate the dismissal. And the plaintiff filed the do over motion to vacate. But then the court said nope, sorry. It's untimely. So then Ramirez, the plaintiff only appealed the second denial, but really the issue was, was about should have, Ramirez should have filed the notice of appeal from the First Order denying the first motion, the Court of Appeal said we would really like to reach the merits. But sorry, we can't because the its untimely. Now you cannot file a motion again, cannot file the appeal from the from the first motion to vacate. So I agree with the analysis. But here's here's another case that illustrates that. Not every case takes this kind of hardline view on notices of appeal. So this was a second district case from a few years ago. bekkering versus Shell Oil Company 2014 case, the Court of Appeal got around a jurisdictional problem by just ordering ordering the trial court to enter a Nunc pro Tunc order. So what happened is, is the appellant in bekkering filed a premature appeal of an order granting a summary judgment. But the court found that that's no problem because the court could simply order the trial court to enter a judgment Nunc pro Tunc the same date as a summary judgment order. So without and then without awaiting the actual Nunc pro Tunc judgment, the court went on to construe the notice of appeal as referencing the as yet non existent judgment. So what what this reminded me of when reading it was that scene in Bill and Ted's Excellent Adventure, when they're stuck in jail, and they're thinking, how do we get out of this mess? And Bill or Ted, one of them says, I know, when we get back to our time traveling phone booth, we'll just steal your dad's keys and put them where should we put them about right here in the corner? Oh, yeah, look, here they are. And then they got out of jail that way. So some someone decided, well, if it's good enough for Bill and Ted, it's good enough to save a premature appeal. We can just just use Nunc pro Tunc orders to change the dates of the orders appealed from
Jeff Lewis 8:26
well, hey, you know, in in this bekkering case involved, somebody was sick or dying from mesothelioma, it was asbestos exposure case, or the spouse of somebody who was exposed to asbestos and person was given priority on appeal for speedy appeal. And it was against one of the most unsympathetic defendants ever Shell Oil. Ultimately, the result was affirmed. I see the court here just wanted to make sure the case was resolved before appellate passed away before he got his or her got her day in court. And I also know not to open another can of worms. But this might be why bekkering And Ramirez were both unpublished to stream kind of results. This is I guess, an argument in favor of not publishing decisions on these important jurisdictional issues when the courts are going to be all over the place.
Tim Kowal 9:17
Well, if the court is going to be all over the place on a jurisdictional issue, how long can it maintain that line? That it's a jurisdictional issue? It's only jurisdictional if we're gonna publish the decision?
Jeff Lewis 9:27
Yeah, it is. It's hard to see where that line is. If you're
Tim Kowal 9:31
so are you suggesting that if the appellant had not been so sympathetic, that maybe a different result would have obtained? Yes, that suggests that the court is a respecter of persons. So the court so the justice is reading the the legal discussion and decides Oh, well, based on this legal discussion, I guess we've got to dismiss this appeal. And then one of the other justices on the panel says, Oh, wait, Bob, did you read the facts? This is a really sympathetic appellate. Oh, I didn't realize that will happen. To find a way to save this appeal,
Jeff Lewis 10:02
I'm going to suggest that bekkering in which it wasn't a fatal mistake in the sense that no judgment had ever been entered. And they I suppose, presumably they could have had the case remanded judgment been entered, and then do a Notice of Appeal, telling someone who's super sick, go do two or three more years of this Kabuki dance, and then we'll talk to you in three years, I'm going to suggest that appellate justices are human. And we're aware that was a harsh result.
Tim Kowal 10:29
Yeah. So you're saying that the same result would have obtained either way? It's just they wanted to cut a few years out of the process?
Jeff Lewis 10:38
Yeah, yeah. Just say it wasn't entirely person oriented in terms of bias, because ultimately affirmed, summary judgment was granted,
Tim Kowal 10:50
right? Yeah. Yeah. All right. Well, let's get to the next one. You got my hackles up already. But I thought this this next case was also surprising. The question is, can you dismiss your lawsuit while it's on appeal? I thought the answer would be yes. But the answer is no. Under curtain maritime Corp versus Pacific dredge and construction, it's a published decision out of the fourth district. In that case, the plaintiff had successfully opposed the defendants anti slap motion, and then the defendant appealed the order denying the motion, the plaintiff decided to dismiss its claims. But the Court of Appeal held it could not dismiss until it was done with the appeal, the court reason that dismissing the case would have rendered the appeal moot. And because the appellate stay is meant to prevent that, the stay means you can't dismiss pending the appeal. Now, this was surprising it was the right result, of course, because obviously, if a if a if a defendant succeeds on an anti slap motion, that defendant is entitled to fees, and so the court was concerned Well, if the case is dismissed, doesn't that cut off the defendants right to slap fees, and the defendant is entitled to slap fees. So we can't let the case be dismissed. But slap fees are a collateral matter they can, that motion can be filed and heard and slap fees orders, ordered whether or not the case is dismissed. So I thought it was strange that the court thought it had to prevent the dismissal at all costs. And Professor Shawn Martin says on his blog that the holding to HIMS, quote seems fairly revolutionary. And Professor Martin links to quote tons of cases that, in fact got dismissed while the matter was on appeal. So he thinks that this is a this is a outlier, holding, but it is a published holding. And so now we have at least one published Court of Appeal opinion that says that a plaintiff may not dismiss the case when the appeal is pending. And as listeners will know, whenever there's a conflict between published Court of Appeal opinions, no matter how lopsided trial courts may exercise discretion under auto equity sales, Inc, versus Superior Court, that's a Supreme Court case, to choose between either side of such a conflict. Well, and
Jeff Lewis 13:08
in here, it'd be the clerk exercising discretion, because nine times out of 10 It's a clerk, not a court that is deciding whether or not to accept a request for dismissal and enter it.
Tim Kowal 13:17
Yeah, yeah, that's, that's true. I don't know how you'd be able to would are litigants able to communicate that to the clerk in some way?
Jeff Lewis 13:26
You have unfettered discretion here.
Tim Kowal 13:28
Yeah. What about you, Jeff, do you that opinion strike you as strange? Do you agree with that rule that that rule express that the appellate stay prevents a plaintiff from dismissing a complaint pending the appeal of an anti slap order?
Jeff Lewis 13:46
Now, in this particular case, it seemed like the this ruling regarding the trial court's ability to entertain a dismissal pending appeal was not necessary to reach the result, given existing law that these on slabs are not really part of the main issue under appeal. And so yeah, I don't understand why the court went this far didn't have to, and I don't know, but I suspect one party or an amicus group might seek review the California Supreme Court because this seems to muddy up the waters quite a
Tim Kowal 14:18
bit. Yeah, I think so too. I did have another. Another opinion on this case, kind of, on the other hand point of view that I liked that the court took the appellate stay seriously. Ordinarily, it's the appellants responsibility to take action before the trial court does something that would tend to render the appeal mood, such as seeking filing a petition for supersedeas in the Court of Appeal, but the curtain maritime case is the first case I've seen that rendered a trial court action void for what it deemed to be violating the appellate stay and without the appellant having to do anything to get the court to take that step. Yeah. So here's and then here's my final case I wanted to talk about that kind of juxtaposes with the curtain maritime case. That is art works studio and classroom LLC versus Leonean. It's a another second district case, non published case it was from April of 2022. This is another appeal of an anti slap order. And the plaintiff, there was a commercial tenant, the tenant claimed that there was at least minimal merit for its interpretation of some estoppel certificates that the landlord had had prepared. And the tenant alleged that the estoppel certificates to the buyer of this building had misstated the terms of the tenants lease. But while the slap appeal was pending, the trial court went ahead with the landlord's UD action and entered an eviction judgment in favor of the landlord. And then the judgment in that UD judgment. It rejected the tenants interpretation of those estoppel certificates, which were in turn at the center of the pending slap appeal. So you can guess what the landlord did next, had filed a motion to dismiss the appeal in that in that slap appealed, based on res judicata. It said that, well, this issue has already been decided in the UD judgment, so no need to go forward with this anti slap appeal. And the Court of Appeal bought it it said, because these issues were fully litigated in the unlawful detainer action, appellant is barred from RE litigating these issues. The first thing that struck me is that it didn't seem like quite the same issue whether the tenants interpretation was correct, which was the ultimate issue in the UD action was different from whether the whether the tenants interpretation had minimal merit, which is the touchstone for prong two of the anti slap analysis. But beyond that, if the if the curtain maritime holding is correct, the holding we just discussed that said that that the appeal and what action should stay related actions then shouldn't the appellate stay have stayed the UD case from going forward? And doesn't hurt and maritime make the UD judgment void? Because it would tend to moot the appeal, which is what happened here.
Jeff Lewis 17:15
Let me ask you, though, wouldn't that stabby tenant or savvy tenants lawyer and we know some of those wouldn't a savvy tenants lawyer use this process to delay proceedings by arguing? Oh, the pendency of the appeal. We can't proceed on the UD until this appeals resolved. UD actions are supposed to be summary they're supposed to happen lightning fast and appeals are not.
Tim Kowal 17:39
Yeah. On the other hand, wouldn't savvy landlords use the UD process to short circuit what are otherwise legitimate complex contract disputes and say, Well, you know, let's just flush all of these contractual issues under the bridge and just adjudicate the summary proceeding under a UD action, and then that renders the entire upstairs lawsuit as they call it. The unlimited civil lawsuit moot. Yeah, yeah. It's, it could be sharp practices on on either side. I think in this in this case, you know, summary, the summary, Proceedings of UD action, this is not not my area, but I thought that was typically more for maybe a presidential. That's what I thought, but maybe I'm not right. I, you know, I don't do
Jeff Lewis 18:23
a lot of this. But in terms of possession, I think they should possession is summary. Whether it's residential or commercial, but I don't know. Maybe we need Fran back on here.
Tim Kowal 18:30
Yeah. No, let's put up put on an APB to Fran to address these vexing issues. Alright, so those are the cases that I had to address today.
Jeff Lewis 18:40
All right. And then going down to our news and tidbits there was big news in terms of the CDC mask mandate, if you want to talk about that,
Tim Kowal 18:48
Tim. Yeah, you sent me this. I guess it's it's all over the news this week. We're recording this on April 19 2022. I think this just yesterday, CDC mask mandate for travelers has been struck down by Judge Katherine Kimball Mozelle of the United States District Court out of Florida. The this was the Biden administration's mask mandates mandate for airplanes and other public transport methods. Judge Mozelle said the mandate exceeded the statutory authority of the US Centers for Disease Control and Prevention because its implementation violated administrative law. So this was a question that you and I have been kind of talking about back and forth. This is one judge Jeff, one judge out of 90 Something districts across the country 12 circuits should one judge have the authority to enjoin the entire federal government nationwide? Yeah,
Jeff Lewis 19:41
yeah. It's a lot of power. And and think about this way. Imagine in a in a contested national presidential election, having a judge let's say from California, versus a judge from Florida, decided an issue of whether or not certain, you know, votes were validly cast in a national election. I mean, crazy. This amount of power. Yeah.
Tim Kowal 20:00
Yeah, I mean, I understand the reason for it. But here's, I saw this just recently come across the wires that David lat in his blog talked about Chief Judge Jeffrey Sutton of the Sixth Circuit just sounded off about these nationwide injunctions. And here's what he's what he said. Well, Chief Judge Sutton he recently spoke out about so called nationwide or universal injunctions. This is David lats characterization here, in which a single federal judge issues an order purporting to block the federal government from enforcing a law or regulation anywhere against anyone. Judge Sutton complain that these injury conjunctions, quote, have not been good for the rule of law, and quote, the sooner they are confined to discrete settings or eliminated root and branch the better and quote, and in judge Sutton's concurring opinion in Arizona versus Biden in which the Sixth Circuit stayed a district court's injunction blocking a Department of Homeland Security Policy, setting enforcement policies when making apprehensions and removals, Chief Judge Sutton wrote as follows. Call them what you will nationwide injunctions or universal remedies, they seem to take the judicial power beyond its traditionally understood uses, permitting district courts to order the government to act or refrain from acting toward non parties in the case. Such injunctions create practical problems to the effect of them is to prevent the national government from enforcing a rule or executive order without potentially having to prevail in all 94 district courts and all 12 regional courts of appeals. They incentivize foreign forum shopping. They short circuit the decision making benefits of having different courts weigh in on vexing questions of law, and allowing the best ideas to percolate to the top. They lead to rushes to judgment. And all of this loads more and more carriage on the emergency dockets of the federal courts, unnecessary feature of any hierarchical court system, but one design for occasional not incessant demands for relief and quote. What are your thoughts on Judge Sutton's criticisms of nationwide injunctions? Jeff?
Jeff Lewis 22:11
Yeah, I know it's it's concerning and especially people racing to file lawsuits first to be first in a forum or to their liking. And I wonder if you have one judge determining a rule or holding our entire Nathan, this chill the development of circuits splits such that SCOTUS is unable or delayed and picking an issue up to SCOTUS, because one order one judge has been issued? It's interesting issue.
Tim Kowal 22:39
Yeah, yeah. I think that I think Judge Sutton would agree with you there. And then just to circle back to bring this into the subject of mootness that we were talking about earlier. Maybe these nationwide injunctions are necessary, at least in some occasions to prevent a case from becoming moot. And besides, plaintiffs should not have to wait years and years and years until SCOTUS decides it's satisfied that the issues have been sufficiently developed in the various circuit courts before taking up an issue. So maybe, maybe if this is really a problem, all these nationwide injunctions, you know, it would be I take Chief Judge Sutton's point that it's nice to have the issues fully developed in various different courts, you have a whole buffet of different opinions on intakes on an issue to choose from. But some issues you just don't have that luxury to wait, maybe the maybe the Supreme Court should consider taking some of these issues up on an expedited basis, and maybe a nationwide injunction is a way to get the Supreme Court's attention.
Jeff Lewis 23:42
Yeah, yeah. I'm glad I'm a California lawyer with primary practice and state courts. So I'm going to deal with these additional complexities.
Tim Kowal 23:48
Yeah. All right, Jeff, there was there's one other case that had come up. But speaking of injunctions, it was concerning the UNRWA act here in California. Much tell our listeners just a little bit about that.
Jeff Lewis 24:02
Alright, look, I've been practicing 26 years. And every few years, a new scam that pops up where lawyers who don't have real clients are real claims, develop a whole practice area, or finally, Phantom claims based on phantom clients and making a tremendous amount of money. And these lawsuits are usually filed in volume without a real client, but actually a lawyer calling the shots. So in 2003, there was the Trevor Law Group that abused California's unfair competition law. This is the professions code section 17 200, targeting small businesses with Shakedown lawsuits, it's settled for dollars and there'll be 1000s of these lawsuits that never went to trial. To California ag filed a lawsuit against the trouble Law Group shut that down. More recently, there was the prenda Law Group, which is a group of attorneys who filed Shakedown lawsuits against people who downloaded porn movies off the internet that ended with a A 2013 Federal Court ruling by lawyers are engaged in criminal racketeering, in a very entertaining opinion written with Star Trek themes and references by Judge Otis. Right. Local federal judge. I'll put a link to that opinion in our show notes. But in the same vein as the Tribal Law Group in the prenda Law Group this month, we had Los Angeles and San Francisco TAS office team up to file a lawsuit against Potter, Andy, a law firm for filing meritless lawsuits to enforce the ADEA. And the problem with Potter Handys lawsuits according to the DA is that Palmer Handys, a lawyer represents parties that have likely never actually even attempted to visit this visit the business that is being sued for suppose an ABA violation. And that's a requirement for ADA lawsuits to move forward to give a plaintiff standing. So for example, according to this lawsuit filed by the LA and San Francisco TAS office, one of the clients have said they visited a business that was actually closed during COVID. So there was not possible to establish standing. And look, it's interesting lawsuit when you read it, you see examples of really, really glaring and I'm all for lawsuits like this, but meaning that the velocity to crack down on Potter handy, but I do sometimes get nervous whenever lawyers are sued for filing lawsuits, there is a chilling effect there to think well, if I'm filing what I think is a meritorious lawsuit today will be LA and San Francisco DHS office decide tomorrow. It's not meritorious. And I also wonder whether Palmer handy might respond to this combined la San Francisco lawsuit with an anti slap motion, arguing that its conduct is both protected under Section 425 116, which is the anti slap law and privilege under Civil Code section 47. What do you think about this Ponor? Handy lawsuit?
Tim Kowal 26:47
Yeah, I thought that, you know, I've, I've seen these types of lawsuits, my entire practice here and there. And normally they are they don't seem to have risen to quite the same scale that the potter Handi venture has attempted here. And there's they've got a whole team of professional plaintiffs who each visited allegedly, hundreds and hundreds of establishments. That was the other you mentioned one example where the establishment was closed. So obviously, that was that was a false allegation. But they but the DA also raised kind of a statistical analysis that come on, there's no way that that these these professional plaintiffs visited this number of establishments in the shortest time period. So I yeah, I I'm happy to see a crack down on this. This is you know, they're the law is a profession. It's not meant to be a business venture. And and I think maybe this is an example where we're the DEA is looking to show that there's a line somewhere between running a profession and running a business and the potter handy group maybe has crossed the line. I think that's that's kind of the theme of the DEA lawsuit here.
Jeff Lewis 27:59
And hey, one more case I want to talk about before we go is you've obviously heard of the abbreviation slapped strategic lawsuit against public participation. That's something we talk about all the time, the anti slap, which is California's law to deter slaps frivolous lawsuits, I noticed a new Twitter term on Twitter that I'm going to steal shamelessly, and I'm gonna introduce on this podcast, I didn't come up with it. I read it on Twitter, it's called smack, SM a CC, a strategic motion against credible claims. I don't know who came up with it. But it's a great term. A smack occurs when an anti slap motion and related discovery stays and appeals is used to slow down the progress of a legitimate claim, and bog that case down in procedure and process so that it can't get anywhere. And this past week, there's an example of a smack in Division six of the second district, the Second District Court of Appeal in Los Angeles. It's the clarity consulting case, I'll link to this in our show notes. This was a published decision case represents a stark warning for lawyers who misuse the anti flat motion on context. The opinions starts with this. I would like to be the appellate and receives an opinion that starts with this. This appeal illustrates an attorney's misuse of the anti slap statute. However, however efficacious the anti slap procedure may be in the right case, it could be badly abused in the wrong one, resulting in substantial costs and prejudicial delay. This is the wrong case. In the the clarity consulting court went on to not only affirm $3,000 and sanctions that were issued below, but added on another $20,000 in sanctions for filing a frivolous appeal and ends with a warning about trial lawyers who handle their own appeals to required reading I think for anyone who's considering filing a slap or filing an appeal of a slap order to make sure you really done your homework and you're not filing a frivolous appeal for improper reasons.
Tim Kowal 29:57
Yeah, it's hard enough to get to get it attorneys fees up on an unsuccessful slap movement. So that's what happened here and then but the defendant not leaving not leaving well enough alone went forward and got hit with $20,000. More. That's a That's a tough pill to swallow swallow.
Jeff Lewis 30:15
I'd like to think that appellate specialist brought in as CO counsel would slow the roll there and prevent that appeal from being filed.
Tim Kowal 30:22
A little bit of objectivity is always a good thing.
Jeff Lewis 30:26
All right, well, hey, I know this was a short one, but I think that wraps up this episode.
Tim Kowal 30:30
If you have suggestions for future episodes, please email us at info at Cal podcast.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis 30:42
All right, see you next time.
Announcer 30:44
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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Commentator Michael Shipley calls this one a “bait and switch.” In Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 2022 WL 702912 ___ Cal.Rptr.3d ___, a police officer lost his petition for writ of mandamus. The trial court entered a signed “order” in August, served the same day. But the court did not enter judgment until nearly two months later. The officer appealed. The appeal was timely if it was from the judgment. But it was untimely if it was from the denial order.
The Court of Appeal held the signed denial order was the appealable order, even though it was not a formal judgment. The court focused on the California Supreme Court holding in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, that an order partially granting and partially denying a petition for writ of administrative mandamus was a final appealable order.
Dhillon reasoned: “We have previously recognized that a judgment is final, and therefore appealable, ‘ “ ‘when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.’ ” ’ [Citations.] ‘ “It is not the form of the decree but the substance and effect of the adjudication which is determinative.” Dhillon concluded that the trial court's order was an appealable final judgment because “nothing remained to be done in that court; no issue was then left for the court's ‘ “future consideration except the fact of compliance or noncompliance with the terms of the first decree.” ’ ” (Id. at p. 1117.)
But the officer made some good arguments, too. The officer argued that, under Code of Civil Procedure section 1094.5, subdivision (f), governing proceedings involving writs of mandamus, the trial court “shall enter judgment.” But the court was not persuaded.
The officer also argued that the reason an “order” may be deemed appealable is to prevent appeals from being kicked in cases where a formal judgment does not follow. The court was not persuaded by this, either.
The officer also argued that the order here was no different from orders sustaining demurrers without leave to amend, and no different from orders granting summary judgment, and those are not appealable until a formal dismissal or judgment follows. But again, the court was not persuaded. Specifically, the court noted that section 437c(k) requires entry of a separate judgment.
Comment: But then again, so does 1094.5(f), so I am not sure where the court was going with that reasoning. I thought the officer made a valid argument here and would have liked to have seen the court make more effort to square the examples of orders sustaining demurrers, granting motion for judgment on the pleadings, and granting summary judgment.
The officer also noted that another case, Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, had held that an appeal from a denial of a petition for administrative mandamus must be taken from the judgment and not the order. But the court declined to follow that holding.
The Upshot: When the trial court enters an order that basically ends the case, carefully consider whether it is immediately appealable. Sometimes it will be, like for orders on petitions for writs of administrative mandamus. Other times, it won’t be. This may be a good time to inquire with an appellate specialist.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
[Update: After I filed an amicus curiae request for publication of this opinion, the Court granted rehearing on its own motion, and re-issued a modified and partially published opinion. The Court published its holding that the defendant seeking arbitration here had not waived arbitration by litigating for 13 months. The result is the same, but the Court further stresses that "Quach admitted he incurred no costs in litigation that he would not otherwise have expended had the case gone to arbitration earlier." The Court also deleted a reference to the rule that the moving party prejudices the nonmoving party "by depriving that party of the advantages of arbitration." This was one of the challenges in the dissent, to which the majority also now includes a direct response.
Takeaway: The holding stands for a narrower rule that litigation costs are not prejudice for purpose of establishing a waiver of the right to arbitrate. But the holding now implicitly acknowledges that the delay does deprive the nonmoving party of the intended benefits of arbitration. This represents an anomaly in the Supreme Court's St. Agnes doctrine.]
An employer-defendant answered a wrongful-termination complaint, served multiple sets of discovery, and took the employee-plaintiff’s deposition during 13 months’ of litigation, before finally moving to compel arbitration. The trial court refused to compel arbitration, ruling the employer waived arbitration by its unreasonable delay. That seemed unsurprising.
So it seemed surprising that the majority in Quach v. Calif. Commerce Club, Inc. (D2d1 Apr. 14, 2022 no. B310458) 2022 WL 1113998 (nonpub. opn.) found that these facts, as a matter of law, do not waive arbitration. The court noted that the California Supreme Court in *Saint Agnes Medical Center v. PacifiCare of California* (2003) 31 Cal.4th 1187, 1203, had held that mere participation in litigation, and merely driving up court costs and expenses, are not enough to establish waiver of the right to arbitrate.
True, undue delay and waiting until the eve of trial can be grounds for waiver. But the court here found—again, as a matter of law—that “almost seven months before the trial date” is “not on the ‘eve of trial.’”
Good to know.
The employee also made a good point that the Supreme Court subsequently acknowledged, apparently with approval, a number of subsequent Court of Appeal opinions tending to support the employee’s argument that spending time and money litigation for 13 months can support a waiver of the right to arbitrate. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 374–375.)
But the Quach court distinguished each of those cases. (The fact that the court took the time to analyze each, drawing rather fine distinctions, suggests that the employee had hit fairly close to the mark.)
Several other Court of Appeal opinions tended to support the employee’s argument that spending time and money litigating for 13 months can support a waiver of the right to arbitrate.
Judge Crandall (a San Luis Obispo trial judge sitting by assignment) would have affirmed. Here is the nub of the dissent:
“Although the legality of these compulsory arbitration agreements must be acknowledged for the present moment as water under the judicial bridge, we should not overextend ourselves to preserve a compulsory arbitration agreement that the employer has clearly waived, as appellant California Commerce Club, Inc. (Commerce Club) did in this case with respect to their at-will employee of 29 years, respondent Peter Quach.”
On a point of appellate procedure, Judge Crandall noted that the Court of Appeal must accept the trial court’s finding that the employer’s excuse for its 13-month delay—that it couldn’t find the arbitration agreement—was untruthful. Beyond that, it was not the employee’s burden to prove subjective bad faith. The employer’s lack of candor alone should have played more prominently in the majority’s analysis.
Giving due credit to the trial court’s finding the employer’s excuse for delay to be untruthful, Judge Crandall went on to address the implied finding that follows: that the employer delayed for 13 months precisely “to intimidate a vulnerable at-will employee who lacks the economic resources to cope with such delay.”
Judge Crandall was persuaded by the employee’s argument in his brief: “Quach's appellate brief hits the nail on the head: “[By now], all benefits of a speedy resolution [Quach] could have obtained through arbitration [have] been lost.””
That was the prejudice of the delay: it “deliberately and forever undermined the very nature of a quick resolution that is the central tenet of arbitration.” (OTO, L.L.C. v. Ken Kho (2019) 8 Cal.5th 111, 125.)
Comment: There is an interesting footnote commenting on a briefing faux pas. Here is the footnote, concerning the employee-respondent’s argument that a delay that imposes litigation expenses can be prejudicial if the delay was unreasonable:
“In making this argument in his respondent's brief, Quach copies a lengthy paragraph from Bower v. Inter-Con Security Systems, Inc. (2014) 232 Cal.App.4th 1035 (Bower), without attribution or quotation marks to indicate the material is not original. We have identified at least one other instance of unattributed language elsewhere in the brief. We will give Quach the benefit of the doubt that this was unintentional, but caution counsel to take greater care in the future to indicate when language is taken from another source.”
I have heard a Court of Appeal research attorney express disapproval of cribbing from unpublished opinions. (”We will find out,” was the warning.) But judicial opinions are not protected by copyright. And briefs are not works of artistic expression; their authors score no points for originality. (”That’s a novel argument” is not a comment an attorney likes to hear.) Briefs are tools of persuasion. So the rule is: whatever works. Now, I don’t know why a litigant would not want to attribute a favorable argument to a published opinion. But I don’t see how copying arguments from a court decision is in any way unethical.
Still, take note that some jurists and research attorneys just don’t like it.
The Upshot: Although arbitration waivers are not supposed to be driven by any single factor, expect that the court will insist on a showing of prejudice or unfair advantage. Try to show the party seeking arbitration obtained some tactical advantage. (The dissent noted that the arbitration rules here might—or might not—have permitted the discovery employer had already obtained. Unfortunately, the majority did not find that persuasive.) And while delay is relevant, a delay of even 13 months might not suffice.
But do not rely on mere participation in litigation or driving up litigation costs.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
The appellate court in People v. Williams (2022) 75 Cal.App.5th 584 admonished a criminal defendant’s attorney for failing to tell the court about a relevant case that had held the kind of order involved there was not appealable.
The appeal was from an order denying resentencing under Penal Code 1170. The defendant had petitioned for resentencing based on Los Angeles DA George Gascón’s more lenient policies. But the trial court rejected the petition as untimely. The defendant filed an appeal in pro per.
For appellate representation, the case was forwarded to the California Appellate Project. The CAP’s executive director himself took on responsibility for the case as counsel of record. In the opening brief, counsel included a jurisdictional statement that the order was appealable under Penal Code section 1237(b), which makes a postjudgment order appealable that “affect[s] the substantial rights of the party.” A pretty malleable standard. So maybe that was enough?
Unfortunately for the defendant and his counsel, the Court of Appeal did its own research and found another Court of Appeal case on point holding that an appeal from an order denying resentencing is not appealable. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726 [a Fourth District case, also citing First and Second District cases].)
The court gave defendant and counsel a chance to respond. The court directed counsel to submit a letter brief whether Chlad could be distinguished, and whether counsel’s failure to mention Chlad violated counsel’s duty of candor. (Rules Prof. Conduct, rule 3.3(a)(2) [a lawyer shall not “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel ....”].)
To this, counsel took an odd tack. He did not try to distinguish Chlad. He also did not take the position that he was unaware of Chlad. Instead, counsel justified his decision by asserting he had a duty “to refrain from arguing against his client . . . .”
The court called this “a false choice . . . because the duty of candor is one of disclosure not acquiescence.” Counsel could have met his duty of candor by simply citing the adverse authority and arguing “this court should decline to follow that authority and permit the appeal to proceed as one taken from an order after judgment affecting substantial rights.”
The court warned that any future violation “may warrant disciplinary review by the State Bar or other corrective action.”
The Upshot: If you are an appellant, this is a good reminder that the Court of Appeal pays close attention to your Statement of Appealability in your opening brief. Do not gloss over it. If there is doubt about appealability, be prepared to raise the collateral-order doctrine, or to seek review on a writ basis. If you are unsure whether your order is appealable, consider consulting an appellate specialist.
Comment: There is just one word about this opinion bothers me, and that word is, “controlling.” As in, the citation to rule 3.3(a)(2) of the Rules of Professional Conduct, which says a lawyer must disclose any legal authority “in the controlling jurisdiction....”
This opinion was issued by the Second District Court of Appeal. Chlad was a Fourth District case. And regardless of the district, the California appellate court system has no horizontal stare decisis, which means that no Court of Appeal opinion is binding on any other Court of Appeal.
Comment 3 to rule 3.3 states: “Legal authority in the controlling jurisdiction may include legal authority outside the jurisdiction in which the tribunal* sits, such as a federal statute or case that is determinative of an issue in a state court proceeding or a Supreme Court decision that is binding on a lower court. But this case did not involve a federal statute, or a Supreme Court decision that was “binding” on this court.
So Chlad was not “controlling” authority. It was merely persuasive authority.
Still, bad move not to cite it. But in a system like California’s in which no Court of Appeal decision is binding on any other Court of Appeal, it seems wrong to me to require, under pain of sanctions, that attorneys must bring up cases that have no binding effect.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
In this special episode, Jeff interviews me about the best and worst things about appellate law. I talk about a couple of my favorite war stories, my approach to legal writing, and my favorite comedian.
Then to business, we discuss some recent cases, including appellate sanctions for trial court conduct, the nonappealability of arbitrator injunctions, and the publication of a recent family law opinion reversing a judgment for failing to provide a statement of decision.
Tim Kowal 0:01
inside jokes don't work in the law. All you have is the record.
Announcer 0:05
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 0:24
Welcome, everyone, I am Jeff Lewis.
Tim Kowal 0:26
And I'm Tim colwall provisionally licensed by the California Department of podcasting. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Well, Jeff, and I are appellate specialist who's split our time evenly between trial courts and appellate courts. And in this podcast, we offer some of our appellate perspective on various issues that arise and on trial and on appeal.
Jeff Lewis 0:51
Yeah, you know, two years ago, during the pandemic, when the courts were shut down, we had this idea of starting this podcast and today we've reached episode 30 of the podcast and in most of our episodes, we've had some guests to discuss their practice area or interesting aspects of appellate law. And today, I thought it would be a fun idea to commemorate episode 30. And change up the format a bit and take a closer look at our co host Tim Cole. Let me just read a little bit from your bio. Tim is a shareholder at Thomas Bogum associates in Costa Mesa. He uses both trial and appellate court remedies and specializes in developing unique legal strategies for its clients. Tim's trial and appellate victories total over $60 million. Wow. While in law school, Tim served as editor in chief of the Chapman Law Review, and before practicing law, Tim helped run a successful it sales and consulting firm in Orange County that continues to serve small businesses and individual customers in the region. He graduated from UC Irvine with a BA in philosophy, no surprise there as an alumnus of St. John Bosco High School in Bellflower. So, welcome to the podcast, Tim.
Tim Kowal 2:00
Glad to be here. Jeff, I'm reminded that, that you are the one who had the brainchild for this, this this podcast was your brainchild, and you invited me to be on it. And I'm so glad you did. It's been it's become just a lot of fun. It
Jeff Lewis 2:11
was my idea. But boy, did you blow it up with your effort and ideas and everything. So thank you for all you've done to turn this little hobby into a thing. Yeah,
Tim Kowal 2:20
it's been a blast.
Jeff Lewis 2:21
Let's jump right into the interview. Tim, tell our audience why did you become a lawyer?
Tim Kowal 2:27
Oh, well, as you mentioned, in my bio, I was I was doing computers for about six years after I graduated from UC Irvine and I was just kind of putting around becoming a lawyer was not part of a grand strategy or anything, you know that the closest I have to knowing what I wanted to do when I grew when I grew up when I was younger was I wanted to be Michael J Fox and secret of my success. Only I didn't I didn't trust my ability to change my pants and an elevator. So finally my my mom kept pushing me into what you know, why don't you go to law school? Why don't you go to law school. And finally after I kind of tired of slinging keyboards and setting up networks, I decided, yeah, I think I'd like to try to do something else. And so I went to law school and day one of law school, I thought Why did I wait so long? Because I just really loved it. Yeah, it's downhill from there.
Jeff Lewis 3:13
I had a similar experience. I didn't particularly enjoy undergraduate But boy did I love law school. I really enjoyed the classes. And yeah, it was life changing. All right, well, tell me tell us about one of the more interesting appeals or the trials that you've been a part of in your career,
Tim Kowal 3:28
you know, I have a few of them. Some of them are good experiences, and some of them are frustrating experiences. And I think that probably makes up all of our experiences as a lawyer, you know, it's never all up. And hopefully it's it's not all down either. So I'll tell you one, one good experience that actually came out of a frustrating experience we were in, we were in trial, my partner and I were in a in a trial on a contempt proceeding against the bad guy that he was not complying with the court's preliminary injunction to let our client back into the business that he had frozen them out of. And so we are in there on a contempt proceeding that had gone a couple of weeks. And this was a Muslim owned business. And the judge kept making these comments that well, the the contempt, nor was was was the elder in the family. And so we have to defer to these cultural differences. And we said, the hell you do this is a court of law. So finally, we decided what are we going to do if the judge has the thumb on the scale based on these cultural differences that shouldn't have any application in a court of law? We consulted with a with a retired judge that we know and, and on his advice, we we asked for an in camera proceeding to discuss this and to to make a record of it. We brought in our own private court reporter because we were calling into question, you know, judicial propriety judicial bias. So we had to have our own court reporter there. So there we are crammed into the courts chambers, the judge's chambers with that with two court reporters, the courts reporter and then our private reporter and discuss this issue very as diplomat equally as possible, but as as upfront as possible. And to his credit, the judge, even though denied that, that he would put any thumb on the scale, we stopped hearing any comments or rulings based on cultural differences. And shortly thereafter, we got a very favorable settlement in the case. So that was, that was a good a good outcome, a born of some frustration in the court. Another outcome that was that was frustrating and did not come to a good outcome. There was there was a we represented the judgment debtor. Okay. And there was there was an appeal. We were I was not appellate counsel, but I was kind of, you know, playing playing the gap role. So I was in between I was the the attorney helping with obtaining the bond and getting a stay of judgment enforcement pending the appeal, when the appeal was not successful. I had read the court of the Supreme Court decision, the name is escaping me now. And the Queen may be that pointed out that if you pay a judgment, if you satisfy it in full, then that cuts off the right to getting any attorneys fees for judgment enforcement, right that well, we've gone through a lot of judgment enforcement efforts. So there's going to be a big fee motion coming for judgment enforcement, why not just cut off that right? Show up with. But the exception is, if you if you try to give a cashier's check, or any other foreign form of payment other than cash, then the judgment creditor can simply hold on to it and not cash it, proceed to file the motion for fees and say, No, I haven't had the judgments not been satisfied in full because the check hasn't cleared. So the only way to actually take advantage of that supreme court rule and the Supreme Court actually contemplated this is to pay in cash, you should so we showed up, we had an armored truck show up at the office at the attorney's office with the cash it was about a quarter million dollars as I recall, and pay off judgment interest. So there's no dispute it was paid off in full. They still filed their motion for fees. And we thought we got him we will cite the Supreme Court case that says that, you know, that's paid off in full the right to attorneys fees for judgment enforcement is cut off. The trial judge simply said, I don't like that result. I'm going to allow the fees anyway. And at that point, that you know, there was there is no gas left in the tank to take up another appeal. And so there is where it was left the we follow the supreme Supreme Court's guidelines for how to for how to do this. And yet judges sometimes just don't like don't like the result. And so it's kind of a What are you going to do about it type of mentality that I find so frustrating?
Jeff Lewis 7:29
How does one go about hiring an armored truck?
Tim Kowal 7:32
How do we do we just I think your bank will will probably point you in the direction to someone who can do that. But there are private services private armored trucks you hire for that purpose.
Jeff Lewis 7:42
Who knew? All right, let's talk about what you like about appellate law. I'll tell you the reason I got into appellate law is just from a quality of life, work life balance. I was tired of all the trial work of my opponents making my life miserable with Discovery demands and discovery motions, you know, appellate law, you can be kind of master of your own universe in terms of your workflow and deadlines. How about you? What is the thing that you like most about appellate law?
Tim Kowal 8:06
You know, I've heard a lot of appellate attorneys asked this question, and they always give the same result. And I really have the same answer, I really tried to come up with a different answer. But writing the brief really is a lot of fun. I mean, I do, like we say in our intro every week, Jeff, we both spend about half our times in the trial court and half in the Court of Appeal. And I like the work in the trial court doing post trial motions, doing trial consulting work, and even the litigation work. I think there's a lot of a lot of good strategic elements to litigation work in sometimes the appellate work can be a little dry, just sitting at your desk alone, you shut the phones off and try to get some work done. But that really is the, for me the the essence of appellate work, it's trying, it's trying to find a way to reach another mind, you know, this idea, this kind of philosophy about life, that, that reaching a mind is like traveling to a different country. And not like traveling to a different country in the 21st century, where you just take a plane, it's like, like in the in the, in the 18th century where, you know, you have to, you have to make a long trek, because if you if you don't prepare, if you if you're too glib about it, you know, you're gonna you're gonna die along the way, you know, if you have to take a lot of care to reach another person's mind because it's it is like a it's like a different country. And that's why I think we value our relationships with people close to us so much is because we share a lot of the same values and it's easier to communicate with them what what you're feeling and what your ideas are, they don't if you talk to someone who doesn't share any of your experiences, they sometimes look at you like you're a crazy person. And that can be the same thing in the law. You know, you try to think how is a How is it How's a trial judge or how's the Court of Appeal going to take this you have to proceed by by these steps and try to anticipate what their reactions are going to be to each one of your statements if you try to make like too, too strident a statement that there is no dispute that such and such you know, you have to you have to let some of the air out of the blue unless they pop it you know, before you can get to the next step. So It's, it's always it's like this interesting process of give and take and trying to take leaps of faith out there, but then pulling back a little bit, so you don't come across as too, you know, if you travel to fit, you know, again, my metaphor of the mind being another country, if you if you're traveling at a at a state at a moderate speed they'll they're more likely to take you as a friendly visitor. But if you you're traveling at them at a at a gallop, they're more likely to perceive you as a charging army. So you have to, you have to kind of moderate your approach a little bit so that you come at them as someone who's trustworthy and friendly that they can take your representations and arguments as something that that's worthy of consideration. So I really enjoy that that process in writing.
Jeff Lewis 10:41
Yeah, interesting. Yeah. You know, we've had prior guests on the podcast talk about it's a mistake to assume that judges are excited to read your brief. And if you can find the right combination of emotion, and issue selection and presentation without crazy trial, lawyer type arguments that are over the top, it's the key to unlocking a judge to at least have more interest in your brief than the other briefs on that judge's desk that particular day.
Tim Kowal 11:07
Yeah, yeah, that's right. And, you know, easy way to start with that is just to weed out adjectives and adverbs from your writing. You know, I think Mark Twain said something like if you see an adverb kill it.
Jeff Lewis 11:20
Clearly, that was good advice. Yeah. big pet peeve seeing the word clearly in a brief. Right. Let me ask you this. What is the thing that you hate the most about practicing appellate law?
Tim Kowal 11:34
You know, like I mentioned in a couple of my stories a moment ago, you have those frustrating experiences, like rules that are that are there, but they're not enforceable for one, one reason or another, like I like the automatic appellate stay, for example, you file an appeal, the default rule is that everything in the trial court concerning that that order on appeal is stayed. But But how do you enforce a stay? That's automatic? You know, all you have is, is you calling up opposing counsel saying there's a stay in place? Well says says you, I don't think there's a stay. So there's no such thing as an automatic stay, you're going to have to wind up going to court anyway. And if this is the same judge who ruled against you, you know, good luck trying to get them to agree that there's a stay. Yeah. So these kinds of rules that are unenforceable, also the rule that you're entitled to a reasoned opinion on appeal. You know, good luck with that, you know, half, it seems I don't know, half the time that there's a good, good, good percentage of the time that I'm getting, getting an opinion back. And if it's unfavorable, I'm looking okay. Well, but how did the court respond to my, my key argument, how they respond, I thought I had him dead to rights. I had really Adam back into a corner on this no way to weasel off the hook. Let me see how they tried to wriggle off the hook. Well, the way they wriggle off the hook is just by not responding to my argument at all, you know, and what what relief is there from that? None. So those are those are things I find I find frustrating. Another another one that's frustrating. It's it's it's what I call those those had to be there moments, I've appeared as appellate counsel and post trial motions, like on a on a motion for new trial, say, and at the hearing, I'll be there along with the judge who had presided over the trial and with opposing counsel who had been trial counsel. And they'll both say, Well, Mr. Cole was was not here. If If only he had heard the the witnesses if they had heard the arguments that had been made the whole time, the tenor everyone understood, this is what the case was really about. And and I think, you know, have you ever told one of those jokes that that kind of fell flat, and then kind of regain your composure? You say, Well, you had to be there. If you had to be there, it's not much of a joke, right? It's an inside joke. And it doesn't it doesn't work inside jokes don't work in the law, all you have is the record because you know, you know who else wasn't there at the trial, the court of appeal is going to be more like me, and they're more likely to have my impression after looking at the record, then then they're likely to have your impression from having that front row seat at trial. So I I find those I find it somewhat frustrating sometimes that judges sometimes don't realize that the only thing that exists is what's in the record. And just saying well, you had to be there is not going to cut it at trial and often cut it in post trial motions. And so that's something i i tried to I tried to impress upon upon judges and post trial motions, but with only limited success.
Jeff Lewis 14:26
Interesting. I've never I've never actually heard a trial or judge give voice to that argument. If you had to be there. Like imagine that would be super frustrating, especially when you have to Novo issues on appeal or issues of law. You didn't have to be there. And your rights right on the record. It doesn't exist. That's right. Interesting. Okay. So let me ask you this on the subject of trial work, what are your biggest pet peeves when you receive an appeal handed off from a trial lawyer?
Tim Kowal 14:52
I don't know that I have. I have pet peeves. When I when I get from the when I get a case from the from the trial lawyer probably the the only fresh trations are things that I wish they would have done is getting me is gotten me involved sooner, like in the trial itself, or certainly in the post trial motions, post trial motions are a great time to pivot the case. Because, you know, the one of the main advantages that an appellate attorney has over the trial attorneys, if they have objectivity, they are coming in and they're looking at the record, as it is now, after the trial. They are not, you know, appellate attorneys don't have that subjective attachment to the to the facts of the case as they would be or is you hope you would be able to get the trier to believe they are, you're just going to have to operate you know, you could use a chessboard example, you know, when you go into, when you go into trial, the chess board is set up in the opening position. And you have all these designs about how you're going to control the center of the board, and you're going to, you know, put them on their back foot. But by the time by the time you have a bad result after a trial, you're not in that position that you had hoped to be at the beginning, you have to deal with the chessboard the way it is, and sometimes it it's a long process in getting there just mentally to realize the case is not what you hoped it would be. And so that's and so a great time to start pivoting from that and just accepting the facts, as they've been found is in post trial and trying to find defects and the legal reasoning or inconsistent verdicts, things like that. And those those arguments you need to start coming up with in post trial motions.
Jeff Lewis 16:24
Interesting. And I imagine there's two battles there battling with a trial lawyer in terms of, hey, it's time to pivot, and start posturing for appeal, and then battling with a to have that shift in thinking about the case, two separate battles there.
Tim Kowal 16:37
Yeah, that's right. There's gonna be a lot of discussions with the client about, you know, what about all this evidence that says, you know, this, this fact wasn't so sorry, that's it's not going to work anymore? You have you really only have one chance you have, you have two chances to make your legal arguments, you know, if the trial judge doesn't get the legal arguments, right, you still have a second bite at the apple on those kinds of arguments on appeal on factual questions, you only get that one bite at the apple, that burden of persuasion can only be can only be overcome once and that's in front of the trier all the you know, all the persuasion on facts is lost on the Court of Appeal.
Jeff Lewis 17:15
Yeah. All right. Well, let me ask you this. If you could go back in time and give yourself a young Tim Cole advice during your first year of law school, what would that advice be?
Tim Kowal 17:26
That's a That's a tough question. I one of my other philosophies of life is try not to live with regrets. And I try I try not to, in most cases, look back and say I wish it would have done things another way. But I do have exceptions to that rule. And and one of them in fact, as I mentioned earlier, when I started being almost day one of law school, I thought, Gosh, this is this is great. This is really why I belong. And I wish I would have started sooner. And as I mentioned, I spent about six years in between graduating UC Irvine and before I went to before I succumb to my mother's advice and and went to law school. And so one of my only regrets is that I wish I would have done that sooner. Now I don't know what what would have what would have happened if I had done it sooner. But one one thing I do think about those six years is it kind of that I'm always thinking about those six years that I lost, so to speak, and I and it kind of drives me to be that much more productive and effective every day because I've got to make up for that lost time. There's so many other attorneys who you know, who are my same age but they've been they've had six more years of experience so I have to work that much harder to make up for that lost time so I try to that's when we I tried to use that that regret so to speak of those last years to my advantage as kind of a you know a whip my my back
Jeff Lewis 18:45
Yeah, well, you know, those timing issues if you had gone to law school right away and maybe never would have met Tom or me and this podcast wouldn't have happened so I'm glad you took the six year hiatus.
Tim Kowal 18:54
Yeah, that's That's right. You can never you can never really imagine what what things have been like in your life if you know they're that but that butterfly effect theory right, you change one thing. What one movie I like, just as a tangent. What was it called Justin time? It was with Rachel McAdams and Bill Nighy was about a guy who could could will himself to go back in the past and like relive moments or do things over but once he had children, he could not go back to before he had children. Because if he made even a whisper of difference to his life, then he would have had different children. You know, we could think of how subtle that process is. And I think that that kind of butterfly effect thing, kind of I think about that sometimes when I think about regrets, you know, I don't think I would want to change anything for that reason. Everything was made for it there. There is a design to things I'm a I'm a I'm a theist, I'm a believer in God and fate and so I believe there's a purpose.
Jeff Lewis 19:56
Okay, and tell tell our listeners one thing I They might be surprised to learn about you. I
Tim Kowal 20:02
have a probably that I'm a big nor McDonald fan. I was a very sad when he passed away last year but I am a big fan of his humor is kind of philosophical humor is his art of the awkward joke, but I enjoy that.
Jeff Lewis 20:18
You know, I enjoyed his stint on weekend news for Saturday Night Live. And you know, Word on the Street was that he was terminated or removed from the news for he was constantly ribbing OJ Simpson during the murder trials. And if you go on the internet, you can see the super cuts of Noor McDonald just ripping into OJ show after show after show he was just vicious. And yeah, I'd say it wasn't well deserved. But yeah, he was. He was amazing. And I really enjoyed him on Saturday live.
Tim Kowal 20:45
He was he was on Letterman one time, but very shortly after he had been fired from from Weekend Update. And and he was very magnanimous about the whole thing. And he said, Well, you know, I talked to Donald Meyer, and, you know, he seemed like a decent, a decent guy, you know, just doing his job. And Letterman said, I know Donald Meyer, he's an idiot. And the Norm Macdonald say, No, I don't know, I think he's just doing his job. And then maybe this was just before he was fired. Anyway, if he came on back on the show a few months later, Norm did and he said, Yeah, I remember you telling me about Donald Meyer. And, you know, I said he was a decent guy. And you said he was an idiot. And, you know, turns out you were right. You could ever tell with Norm if that was like a long play. The bill is just like a delayed punch line. He was setting that up months and months earlier when he was when he was on the show the first time, I would not put it past norm for doing that.
Jeff Lewis 21:41
Alright, so Tim, this is the portion of our podcast where we normally have our patent pending trademark, a special lightning round for guests talking about special issues regarding briefing letters and spaces between periods. But you know if I know all the answers to these now, we're just gonna we're gonna mix it up a little bit, and we're gonna have a very special edition of our lightning round. Just three questions. Three questions to get to the end. Are you ready, Tim?
Tim Kowal 22:06
All right. You haven't you haven't given me the questions to prepare. I know. I know what how our guests feel terrifying.
Jeff Lewis 22:13
Yes. Question one. Who was our first guest on the podcast?
Tim Kowal 22:17
Oh, this is an easy one. MC son, Gala. I didn't know this. Yes. She has her own podcast now. The Porsche project. Excellent. Has a lot of great, great female judges and attorneys on it.
Jeff Lewis 22:30
Yeah, it's fantastic. Well, we should put a link to that in our in our show notes to that great podcast. All right. Question two, you survived question one. Question two, when we started this podcast, and one of my requirements or suggestions or ideas was we keep every episode below 30 minutes. We have miserably failed at that. How long was our longest episode?
Tim Kowal 22:47
I think I noticed the might have been the Sean Brady episode. Did we go an hour 12 or so?
Jeff Lewis 22:55
In fact, it was the vaccine litigation case discussion one hour and 14 minutes.
Tim Kowal 23:01
One hour 14. Yeah. And although I will, by the way,
Jeff Lewis 23:04
blowing a hole in my theory, I thought shorter episodes will be more popular. That is not only our longest episode, but it's one of our more popular terms of downloads.
Tim Kowal 23:14
I think it is the most downloaded episode so far.
Jeff Lewis 23:19
All right. Final question. Very important question. As of last night, when I was writing these questions, how many downloads has the California appellate law podcast had?
Tim Kowal 23:30
Oh, isn't this a trade secret? Jeff, we want to give this away? I think we are we're approaching 5000 downloads, not quite there.
Jeff Lewis 23:38
That's right. We're in about 4200. So yeah, not too bad for a little hobby that started in the pandemic. And again, you know, kudos to you for all the efforts you put into this thing. I really admire what you've done with this.
Tim Kowal 23:49
Yeah, I appreciate it. I was looking Not that I care about these things. But I was comparing our podcast with other with the mean or median and, and we're we're in the upper 25% of all of all podcasts, at least on our platform. So that's not too shabby. I think, for an obscure subject matter like California appellate law. I think that's not too shabby.
Jeff Lewis 24:12
Let's do another 30. All right, you've survived the lightning round. I'm not going to send you a mug or a t shirt, because you're a co host. But you so you can say that you survived lightning round.
Tim Kowal 24:20
Not even a bumper sticker, Jeff.
Jeff Lewis 24:24
Not even a bumper sticker. All right. Were there some news and tidbits you want to share?
Tim Kowal 24:29
Yeah, I did want to talk about a few of recent cases that I that I've written up and I thought maybe we'd share with our listeners. Let's see the first one. The case the case is about challenging an arbitration award that resulted in sanctions for filing a frivolous appeal of $38,000. The case is McQueen V. Wong. It is a issued in march out of the second district. The courts sanction the appellant and his counsel over $38,000 for challenging the ARB award based on illegal air mere legal error, as you know, Jeff has not aground to overturn an ARB award. So the appeal, you know, presumably was doomed from the start, even though there are some decent arguments in there. I didn't think the the, the appellate challenge by itself was frivolous. So what the court really pointed to in grounding the sanctions was the appellant gamesmanship in the trial court. And I thought this was interesting, because the appeal itself, as I said, Didn't seem frivolous. It was the trial court conduct that was overly aggressive and smacking of strategically, and I was taken aback that this can be a basis for appellate sanctions. What about you, Jeff, that did that surprised you?
Jeff Lewis 25:37
You know, it is an interesting result. I'm always paying attention to cases where appellate counsel or counsel are sanction as opposed to a party. You know, I think of it this way, it is very difficult for any court of appeal to issue sanctions when an appeal is taken for purposes of delay, because how do you establish that a party only appealed? Because delay? It's hard to get that from the cold record and from the briefs? And I guess one way to establish that is, through a recounting of the history of litigation, this thing bounced between a couple of courts and been some long delays. But the thing that struck me most about the decision or the opinion was plaintiffs counsels comment at oral argument describing the litigation history as gamesmanship when you're facing a sanctions, and the Court of Appeal has put you on notice that you are going to be sanctioned. I'm not sure those are words that would come out of my mouth describing how my client has acted in litigation.
Tim Kowal 26:32
Right. It did did appear that there was not due caution taken by appellate counsel, once once they were aware that sanctions were on the table. The next case has had to do with another another arbitration case. And this is a case where a preliminary injunction had been issued by the arbitrator. And the Court of Appeal held that although preliminary injunctions are normally appealable, they're right in CCP nine oh 4.1. They're not appealable when they're issued by an arbitrator. The case is Kirk V. Ratner. It's another second district case came out in February of 2022. And a preliminary injunction. Let's see they the preliminary injunction is not considered to be quote unquote, an award under the appealability statute for arbitration under CCP 12 83.4. The parties had settled their show business dispute in that case, and they agreed to confidentiality and worry that Kirk would breach confidentiality. The moot the movie executives initiated arbitration, the arbitrator issued a temporary restraining order followed by a preliminary injunction, and the movie executive plaintiffs were not required to post a bond for the injunction. That was the other thing I've found surprising about this case, because under CCP 529, a preliminary injunction must be bonded. A preliminary injunction that's not bonded is void and can be vacated for that reason. So Kirk appealed, but the Court of Appeal dismissed holding both that the injunction was not a award subject to a petition to vacate. And the order dismissing the petition was not appealable for the same reason. So I mentioned one, one thing that was surprising to me, Jeff was, was the bond issue. The injunction was not bonded, and it could could have been vacated for that reason, but there was no mention of this in the opinion. Another thing that I thought was surprising is that the reason injunctions are appealable, at least I think my understanding is that they're made appealable to protect appellate jurisdiction. Because if an injunction is issued, and you have to sit around and wait for a judgment, before you can appeal it very likely, in a lot of cases, the any appeal of the injunction award is going to be moot because it's already going to have been complied with at least substantially substantially, if not, in totality, by the time you get get around to an appeal after a judgement. But there was no mention of this consideration, either in the opinion. And then one final point about this case that jumped out at me is that Jeff, you and I and some of our guests have talked about what seems to be a trend in favor of greater review ability of orders coming out of arbitration, but obviously this case seems to go the other way. So I don't know if that if that spills kaput, to our theory of a trend or if we're just kind of witnessing fits and starts and not really something like a trend.
Jeff Lewis 29:27
Again, this is an interesting case. Did you say it was published? Is this a published decision?
Tim Kowal 29:31
I think this one was, you know, I think it was published.
Jeff Lewis 29:35
Yeah. i It's counterintuitive to me that you can't seek immediate direct appeal from an injunction. You know, it seems like the only path to challenges would be by way of writ. Typically a challenge in any red proceeding is explained to the Court of Appeal, why you get to cut the line and go in on an emergency basis why you don't have another appellate a traditional appellate remedy, and it would seem this case would be a way to establish good cause for you RIT to be heard, if this case holds and isn't reviewed by the Supreme Court, that you can never seek review of an arbitrators preliminary injunction. It's very counterintuitive. I appreciate you bringing it to my attention.
Tim Kowal 30:15
Yeah, yeah, I thought so what about what about RIT? Review? Do I don't even know the answer this question. Can you see, I suppose you could seek review of an arbitration order like an injunction?
Jeff Lewis 30:25
Yeah, I would think that's the only way you could challenge it. And this case, our jobs as appellate lawyers filing such a writ easier, because before this decision, I would I would if I were on the other side, I would say they could just do a direct appeal. You don't need an emergency read? And the answer to that argument now is well, Kirkby Ratner, you can't seek direct review of such an injunction therefore, a writ is the only way. And there's some exigency here. So in some ways that you might see an increase in rent filings with the Court of Appeal.
Tim Kowal 30:55
Yeah, I just never seen have you. Had you ever seen a review of an interim arbitration award ruling? Never, never. Never. Yeah, I had an either I just the structure these things usually gets funneled up through a petition to confirm or vacate an arbitration award. And I don't know if you would have to similarly funnel the challenge up through the Superior Court first by some kind of motion to vacate and an interim arbitrator ruling. I've never heard of such a thing.
Jeff Lewis 31:24
Yeah. And also on a crazy expedited process to at the Superior Court level very complex.
Tim Kowal 31:30
Yeah. Well, they're just there are just two other cases. I wanted to mention quickly. One is about an order granting withdrawal of attorney being found to be not appealable. This was Elias V. Jensen. It's a out of the fourth district and an unpublished opinion. The reason I thought this was interesting, it's a very brief decision. And you could see why it came out the way it did. Some of the facts are a little bit ridiculous and amusing. But the reason I thought was interesting is that, as you know, an order granting disqualification of an attorney is appealable as a collateral order, and I thought, What's the difference between disqualification and withdrawal, it still kind of has the same, the same effect, at least as far as a client is concerned, maybe just not as far as the attorneys is concerned. Anyway, I thought it was interesting enough of a distinction that maybe it ought to be published. So I, I filed my first Amicus request to publish it was denied. But, you know, I figured I gotta start somewhere. But the the slightly ridiculous facts of the case was that in leading up to the attorneys motion for withdrawal was that the attorneys client and quote, demoted her to co counsel, and the client had been filing documents under his own name. And the client even filed a State Bar complaint against the attorney and yet opposed the the attorney when she wanted to withdraw as counsel and the Court of Appeal reasonably said, if the if the client's allegations against the attorney are true, then the client should not be represented by a conflicted attorney with to me as a present decision. So not a surprising outcome. Again, I just thought it was interesting that the court distinguish between withdrawal of an attorney and disqualification of attorney for purposes of appealability. And then the other the other last case I wanted to bring to your attention was we discussed San Francisco V. Hale, in Episode 27. With Victoria Victoria Fuller, this was the family law decision were the one of the litigants had asked the family judge for a statement of decision and the family judge said nah, not going to do it. Not going to bother with that here. And the Court of Appeal reversed and said, you know, Judge, you really need to give the statement of decision. It was timely requested, and to prejudice here. Under these circumstances. There was an unpublished decision, but the Association of Certified family law specialist saw my post on this, they were nice enough to let me know that, that I had tipped them off to it. And they filed a request for publication, noting that there had been a disturbing trend of judges doing just this denying timely and appropriate request for a statement of decision. And now there is a published case on that point that family judges really do need to give statements of decision when they're timely and appropriately requested. So that's all I have as far as cases this week. Jeff,
Jeff Lewis 34:07
love Hey, that's a great that's a great result man that was great about Association let you know that they that they read your posts. So good result there. Yeah, it
Tim Kowal 34:14
was kind of I mean, it kind of prompted me to to get off the Schneid and start sending out my own request for publication. We'll see where they go.
Jeff Lewis 34:21
You're winning the war regarding unpublished decisions one case at a time.
I start somewhere.
Well, that wraps up episode 30 of the podcast.
Tim Kowal 34:32
And if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal while preparing for trial.
Jeff Lewis 34:44
All right, see you next time.
Announcer 34:46
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
You know about “de novo” and “abuse of discretion” and “substantial evidence.” But most attorneys have never heard of the “finding compelled as a matter of law” standard of appellate review. That is because it rarely comes up. The “compelled finding” standard only comes up when the party with the burden of proof (usually plaintiff) loses at trial, and argues on appeal that its case was so truly overwhelming that only an unreasonable fact-finder would have been left unpersuaded.
With that in mind, there are two interesting things about Missinato v. Missinato (D2d7 Apr. 15, 2022 no. B305989) 2022 WL 1124871 (nonpub. opn.). First, it is surprising because the court found the defendant’s statute-of-limitations defense so overwhelming that only an unreasonable person would be unpersuaded. Second, one of the panel was unpersuaded.
That seems awkward, no?
This was a partition action where brother and sister, Marco and Elisabetta, pooled their mother’s advance on their inheritance to buy a house together. But they left Marco’s name off the title (apparently assuming, incorrectly, they’d get a tax advantage given Marco was not a U.S. citizen.)
You know what happened next: Elisabetta denied Marco’s ownership. Marco sued, and after a trial the court awarded Marco his one-half interest under a resulting trust — which the Court of Appeal held was effectively a judgment of partition.
On appeal, Elisabetta argued that the trial court should have found in her favor based on the four-year statute of limitations. Marco filed his action in September 2018. He had first asked in 2013 or 2014, when he first began suffering glaucoma, which resulted in blindness in one eye. Marco asked for his share of the property so he could make ends meet.
Elisabetta argued she had repudiated Marco’s interest when he first asked, more than four years prior to the complaint. Marco argued Elisabetta did not affirmatively reject his interest until a 2018 email.
(Interestingly, both parties misjudged the applicable statute of limitations as four years under Code of Civil Procedure section 343. But Marco’s claim was based on an oral agreement, so the statutory period under section 339 is two years. But the court proceeded with its analysis under the four-year statute, because that the statute the parties raised: “Although both sides cite the wrong statute of limitations, we decide the issues the parties ask us to decide. (See United States v. Sineneng-Smith (2020) ___ U.S. ___, ___ [140 S.Ct. 1575, 1579, 206 L.Ed.2d 866] [courts “ ‘normally decide only questions presented by the parties’ ”].)”)
So the question was whether Elisabetta repudiated Marco’s interest before or after September 2014. And because all the inferences fall in favor of Marco as the respondent, the question was whether there was any substantial evidence that the repudiation did not happen until after September 2014.
It is important to emphasize how difficult Elisabetta’s burden on appeal was here as the appellant seeking to reverse a factual finding on which she bore the burden of proof at trial. As the court summarized:
“But because the statute of limitations is an affirmative defense, on which the defendant has the burden of proof (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 945), the standard of review is different (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838). Where the appellant has failed to meet his or her burden of proof at trial, “ ‘the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law’ ” because “ ‘the appellant's evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ ”” (Ibid.; see Lent v. California Coastal Com. (2021) 62 Cal.App.5th 812, 837-838 [applying this standard to the defense of laches]; Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 647 [applying this standard to the defenses of waiver and estoppel].) The appellant in this situation has an “ ‘almost impossible’ ” burden. (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734.)”
But in a dramatic turn, the court announced: “And yet Elisabetta has met it here.” The court pointed to discussions between Elisabetta and Marco in 2013 in which Elisabetta said “it’s not half your house, Marco, it’s all mine,” and that she refused to sell it and share the proceeds with him.
The court spent only one paragraph rehearsing the evidence concerning the statute of limitations. This seems odd, given the standard of review is more exacting even that substantial evidence. The analysis must consider not just the evidence favoring the appellant, but the evidence and inferences supporting the judgment. Reading the majority’s analysis suggests there must have been really scant record evidence on this point. But as we will see, that is not so.
The upshot of the majority opinion is that no reasonable jurist could look at the record and fail to be persuaded that Elisabetta had not established her statute of limitations defense. It must have taken some pluck, then, for Judge Noël Wise, sitting on assignment, to write a dissent confessing he was not persuaded.
First, Judge Wise acknowledged the discussions the majority referenced. But Judge Wise noted that the record doesn’t actually say they occurred in 2013 — more than four years before Marco’s 2018 lawsuit — as the majority assumes. Instead, Judge Wise carefully noted the testimony reflected that the discussions happened at “times since” 2013. Not “in” 2013. The record elsewhere places the discussions in or after 2014, rather than 2013.
So no, the record did not reflect such clear and uncontradicted evidence such as to support a finding compelled as a matter of law.
Finally, Judge Wise noted that—contrary to Elisabetta’s repudiation of Marco’s interests—she offered that Marco could take $450,000 (his half of the purchase price) from her inheritance when their mom died “to make things equitable.” This supported an inference, Judge Wise noted, to support the finding that Elisabetta never orally repudiated Marco’s interest until her 2018 email.
(Judge Wise acknowledged that the inference could go either way. But Judge Wise correctly noted that, in the case of competing inferences on appeal, the court must always credit the inference to affirm the judgment. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613.))
Judge Wise’s dissent seems to me clearly correct, and the majority opinion clearly incorrect. Here are some things that stood out as particularly odd:
The majority’s opinion here is really quite shocking. On the merits, the appellant took a blind man’s inheritance. An appeal from facts like that is almost guaranteed not to work, particularly when facing an “almost impossible” standard of review.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
You know it is deadly to file an appeal too late. But there is also such a thing as filing an appeal too early. In the recent case Moreles v. Herrera (D4d1 Apr. 12, 2022 no. D077032) 2022 WL 1090255 (nonpub. opn.), the court decided to save the appeal. But the decision is at the court’s whim. At the end of the post, I will tell you about a similar case where the court decided it would rather not save the premature appeal, and dismissed the appeal filed too early—same as if it had been filed too late.
In Moreles, son caused a fatal car accident while driving father’s car, killing the victim’s father, Moreles. At trial, Moreles failed to prove negligent entrustment against the defendant father. But then there was some discussion about the parties’ stipulating to a judgment amount of the $15,000 provided by Vehicle Code section 17151, the permissive-use statute.
The court entered judgment, but the judgment directed Moreles’s counsel to prepare further documentation concerning the $15,000 amount concerning Moreles’s permissive-use claim.
Moreles appealed from the judgment before the contemplated further documentation was finalized.
The court correctly noted the judgment calling for further documentation was not final, and therefore not appealable.
A judgment that disposes of fewer than all causes of action asserted against a party is not a final, appealable judgment. (See *Sullivan v. Delta Air Lines, Inc.* (1997) 15 Cal.4th 288, 307.)
The court noted “the ‘judgment’ that is the subject of this appeal appears to be interlocutory in nature, requiring the preparation of ‘the appropriate documentation for resolution’ of a remaining cause of action.
However, the appellate court may deem such a judgment final for the purpose of determining appealability if any remaining causes of action are subsequently resolved or dismissed. (Id. at pp. 308–309 [court may deem appeal is from final judgment where, for example, plaintiff dismisses with prejudice or waives the right to litigate any remaining cause of action].) Similarly, where a trial court makes a ruling resolving a cause of action but the ruling is not carried over into the formal judgment, “it is appropriate to preserve the appeal by amending the judgment to reflect the manifest intent of the trial court.” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 289, fn. 1.)
Here is what happens when a non-final judgment later becomes final: “[I]f the plaintiff dismisses the remaining cause of action with prejudice or expressly waives on appeal the right to litigate an unresolved cause of action, the appellate court may either deem the judgment to be final or amend the judgment to reflect a dismissal of that cause of action with prejudice. (Sullivan, supra, 15 Cal.4th at pp. 308–309.)
When the Judgment Here, Leaving the Amount Undetermined, Was Later Satisfied, the Judgment Became Final, and the Court Saved the Appeal:
Here is how the non-finality of the judgment got resolved here. Recall that the judgment rejected Moreles’s negligent-entrustment claim but left the parties to supply further documentation (a contemplated stipulation) for the permissive-use claim.
In short: defendant father paid the $15,000 statutory cap. There was some dispute about acknowledgement of satisfaction of the judgment, but that ended in a hearing with the judge, where the judge confirmed that $15,000 was the correct amount.
That left nothing left to do on the judgment, meaning it was final. As the court observed, the appellate court may deem such a judgment final for the purpose of determining appealability if any remaining causes of action are subsequently resolved or dismissed. (Sullivan, supra, 15 Cal.4th at pp. 308–309 [court may deem appeal is from final judgment where, for example, plaintiff dismisses with prejudice or waives the right to litigate any remaining cause of action].) Similarly, where a trial court makes a ruling resolving a cause of action but the ruling is not carried over into the formal judgment, “it is appropriate to preserve the appeal by amending the judgment to reflect the manifest intent of the trial court.” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 289, fn. 1.)
The court concluded: “In the interest of justice and efficiency, we therefore deem the October 19, 2019 judgment to be final....”
The Court of Appeal may choose to save your premature appeal. But do not count on it. Here is a case in point. This author handled the briefing in Ibrahim v. Liquipel, LLC (D4d3 Jun. 26, 2019) G055697 (nonpub opn.). That appeal was taken from an order denying a motion for leave to file a compulsory cross-complaint under Code of Civil Procedure section 426.30. But at the time the appeal was filed, another cross-claim was still pending against the appellant. So technically, the appeal was premature.
But a few months later, that cross-complaint was voluntarily dismissed, without prejudice. So at that point, the order on appeal was final.
So the same result obtained as in Moreles, right? The Court of Appeal saved the premature appeal, right?
Wrong. The court dismissed the appeal. The court reasoned that the issues involving the appellant were not fully resolved until the cross-complainant “dismissed the cross-complaint in which [appellant] was a cross-defendant.” The court decided not to exercise its discretion to save the appeal.
(Actually, the court then stated: “This [voluntary dismissal without prejudice] was the judgment from which he could have appealed.” But that is an incorrect statement of law. The court cited two cases in support, but neither support that proposition on appealability. To the contrary, “[i]t is well established that a voluntary dismissal under Code of Civil Procedure section 581 is not appealable. ‘The entry [of a request for dismissal] is a ministerial, not a judicial, act, and no appeal lies therefrom.’ (Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120, 108 Cal.Rptr. 782.)” (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975.) Gutkin goes on to cite Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760–761, which states: “there is no kinship of a voluntary dismissal to a final judgment. A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review rulings on demurrers or motions made prior to the dismissal.”)
The Upshot: If you are presented with an order that ordinarily would be appealable but may not be final, use extreme caution. Your safest bet may be to file a notice of appeal, even if it is premature. But you are not done yet. Watch carefully for further orders or actions that will render the order final. And as soon as that happens, take a second, precautionary appeal. Do not rely on the court’s good graces to save a premature 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.
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On episode 29 of the California Appellate Law Podcast, probate appellate attorney David Greco joins Tim Kowal and Jeff Lewis to discuss some of the unique features and challenges in probate appeals:
👉 Fact challenges in probate appeals are uniquely difficult to win. Probate trials are typically bench trials, and appellate courts very rarely overturn a judge’s factual findings.
👉 The “stay killer” in Probate Code § 1310(b) can render many probate appeals moot. David explains why section 1310(b) is his “favorite provision of the Probate Code.” And should there be a similar “stay killer” in the CCP or Family Code?
👉 Fraught family relationships and charged emotions can make representation in probate appeals difficult.
👉 The large role played by professional fiduciaries—trustees, conservators, and guardians—raises unique ethical and due-process considerations. David explains how abuse of these institutional relationships can and does sometimes happen.
David Greco 0:02
If I didn't have to have a rule of thumb that would be well, if I audibly scoff when I'm reading the appellate brief then I would probably file a motion for sanctions.”
Announcer 0:20
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 host, Tim Cole and Jeff Lewis.
Jeff Lewis 0:34
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:36
And I'm Tim Kowal California Department of podcasting license number 254709 are in each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of both Jeff and I are appellate specialists who split our practices evenly between trial and appellate courts. We work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal.
Jeff Lewis 1:07
Alright, welcome, everyone to Episode 29 of the podcast.
Tim Kowal 1:12
Today we welcome David Greco to the show. David's in my rolodex under probate appellate attorneys. David is a partner with RMO LLP. He's a managing attorney in the San Diego office, which he helped launch. David also chairs the firm's appellate practice. He represents beneficiaries as well as professional and corporate fiduciaries like administrators executors, trustees, conservators and guardians in contested trust, estate and probate litigation matters as well as real related estate administration issues. David previously worked for the California Court of Appeal, the California Attorney General's Office and the US District Court for the Southern District of California. He graduated magna cum laude from the University of San Diego Law School where he was a member of the San Diego Law Review. So welcome to the podcast, David.
David Greco 2:03
Thanks for having me. I'm really looking forward to it. Now,
Tim Kowal 2:06
I wonder if you would tell us a little bit more about your practice that I didn't cover in that intro.
David Greco 2:10
I mean, I think you've covered it right. We are a trusted foundation firm. That's really all we do. If it's contested and it's in probate court, then it's right up our alley. Most of our work lately focuses on trust contests or claims against fiduciaries for breach of fiduciary duty. And then we do have institutional clients, financial institutions and professional trustees who we represent when they're getting sued for those types of plans.
Tim Kowal 2:34
So is your practice 100% devoted to these probate issues?
David Greco 2:39
Yeah, well, the firm's practice is 100%. probate litigation, I have probably about 3%, education, appellate issues, I used to practice quite a bit of education law. And I've really went up that down basically, to the cases that I want to take, which are the Ida and related issues on appeal at the Ninth Circuit, but that practice area gets thinner and thinner day by day.
Tim Kowal 3:07
Now, your firm has an Appellate Practice Group, which you you helped found. Tell us a little bit about that. I don't know that I have heard them another another firm that has that has a probate litigation and Appellate Practice Group, why don't you tell us a little bit about starting one at your firm?
David Greco 3:22
Yeah, you know, because we're only a probate litigation firm. I think you're right. I don't think other probate litigation firm, separate probate appellate department. But the reality was that we were already doing these appeals. And we know this stuff inside and out. And so because I love appellate work, I've often would often volunteer to take on the appeals. Other folks in my firm don't love it as much as I do. And when I realized that there are a lot of probate litigators who don't want to do their own appeals, I felt it was a good niche within a niche, you know, so all we really did was formalize the arrangement that we had, which was I would handle most of the appeals on the berm, particularly the California appeals. And it's been a great sort of pivot because now people realize they could send their probate appeals to us a probate firm rather than just some appellate attorney. No offense to generalist appellate attorneys, of course,
Tim Kowal 4:16
I certainly wouldn't have would not have inferred that. What else has been involved in developing your practice group other than, you know, putting out an APB, send all your appeals to David.
David Greco 4:27
You know, we did formalize some internal appellate procedures that we were just sort of ad hoc. And, you know, we would do an appeal when we look up all of the local rules or court rules and we put together some internal procedures and templates to make sure that we're expediting that kind of processing. And we've identified folks in the firm who want to do the appellate work and whose work I'll supervise another attorney in my office in San Diego. He is really into appeals as well and so he likes to do him. He just finished briefing one that I Are we confident about? So other than that other than formalizing it sort of streamlining the procedures? We haven't done much?
Tim Kowal 5:07
So if you had your druthers, would you be doing 100% appellate work? Would you be doing some hybrid? What's the ideal mix for you?
David Greco 5:16
I've got the perfect arrangement. Now, you know, I love the hybrid, because I love to be at the trial court level. Because I manage the San Diego office, I'm also overseeing all of the cases in that office. So I've got my management hat on, I've got my appellant hat on, and I've got my trial lawyer hat on. And I apparently have giant head because they all fit.
Jeff Lewis 5:37
David, tell me, you know, probate cases are usually emotionally charged family disputes, and most appellate lawyers like me, like briefs, and they hate people, they hate dealing with people. How do you deal with emotionally charged clients and probate cases people are fighting over family money? How do you make sure that clients are making objective decisions as to whether to pursue an appeal? And how do you deal with some of the emotions that are in a probate case?
David Greco 6:03
Yeah, you know, one of our we have four core values at our firm, and one of them is lead with empathy. And so we really value the sort of support we can provide the client on an emotional level without becoming a therapist. And so we let our clients get those emotions out. We validate their feelings, right? I know, I know, it's difficult to lose a loved one. I know it's difficult to then fight over their money with your sister or your stepmother. Those things are hard. And we really take it to heart that we are going to be there for our clients to let them know we understand because this is what we do every day. And then to make sure they're making the right decisions, we beat them over the head with the costs. You know, it is not cheap to do an appeal. For example, it's, it's going to be $50,000. And for reasons I'm sure we'll talk about during this podcast, you might lose your appeal, and you might lose it badly. And what I tell clients, often when they call and say, Should I do an appeal as well? Do you want to spend $50,000, wait two years and be exactly where you are now? And when they hear it that way? The answer is often no. But you really do have to let those people deflate, you kind of have to let them feel their feelings. And that, you know, that's a skill that a lot of really effective probate mediators have to because they want to tell their story. And then once they tell it, they're more receptive to the feedback that you have for them.
Tim Kowal 7:35
So that's a great perspective. And there's, there's something like someone's getting some attorneys got to come up with like a, you know, like a seven stages of grief. It's there's like a, like a certain number of stages of litigation, you know, that at the beginning of limited litigation, everyone's you know, raring to go, you know, spare no, no expense, you know, this is about vindicating a principle. And then a few months down the line, after getting a few attorney bills, you start saying, Whoa, whoa, what's going on here? What are we fighting over again, and then by the end of the of the thing, it's like, hey, the only only the attorneys are getting rich here, Where's, where's my piece doesn't make any sense. So you got to find a way to kind of cover all those stages, prep the client that you're gonna have to deal with, with all of these, all of these things, and you got to do in short order before we sign you up, because we don't want to we don't want to be the bad guys, as the attorneys by the end of this, we want to, we want to be part of the part of the good guys.
David Greco 8:26
Yeah. And you know, one of the things that I found really effective with clients is to tell them, who do you want to inherit your mom's money, me or you? Because at the end of the day, it's gonna be one of us. You know, and I use that line, of course, when I'm trying to convince a client that it's not worth doing what they want me to do.
Tim Kowal 8:45
Yeah. All right. So on in your appellate practice. Tell us your favorite part of the appellate practice, other than this gonna be the tough one for appellate attorneys. Every appellate attorney has the same answer. It's writing the briefs. What's your favorite part? Other than writing the briefs? Doing the research count?
David Greco 9:03
That's kind of part of writing the brief. Yeah. Good. Yeah. I you know, because research and writing really is the meat of appellate practice. oral argument is great. But I think that everybody on this podcast knows that oral argument changes the opinion point, oh, 1% of the time. You know, I have seen in my entire career, one opinion get changed after oral argument. And it was on an issue of first impression, many, many years ago. So, you know, it's fun to get up there and be a big boy at the podium. But really the intellectual stimulation of doing the research thinking about your case, and putting it before the court in writing is the best part. So sorry, I answered your question by violating the premise of the question.
Tim Kowal 9:46
Well, you know, it happens it's hard to control attorneys. When you have an opinion about oral argument you mentioned you know, there's grim odds and in trying to actually persuade by the time it comes to oral argue Do you ever counsel your clients? Look, you you have the option to just have me submit on the papers, we don't need to go to oral argument and and pay my fees for it. Has that ever attacked that your your clients take?
David Greco 10:12
You know, I do tell clients about the realities of oral argument. But one of the things that I really like to provide to the client is my potential insight from what I gleaned from oral argument. I think it's a valuable tool while we're waiting for the opinion to come out. So, you know, last year in October, I did an oral argument in a case where the panel was very clearly going to affirm in our favor. I mean, the the Presiding Justice said, I think the trial court would have abused its discretion hadn't ruled it any other way. You know, and so that was a really valuable tool that I could bring back to my client and say, maybe it's time to make a settlement. Right. And so there's value in oral argument because you get the impression, and you have the sort of the opinion hanging over the head of the opposing attorney, who maybe doesn't want to get the opinion before they have a settlement agreement. So there's value in that, but I do disclose to the clients that the judges are unlikely to change their mind.
Tim Kowal 11:12
Well, let's talk about some specifics on probate appeals. David, tell us how are probate appeals different from ordinary civil appeals? Are there any special considerations that you have to be aware of in probate appeals?
David Greco 11:25
Yeah, well, you know, probate judges have such leeway. And they're also the fact finder, you don't get a jury and probate court. So there goes all your jury selection appeals, right, there goes your jury nullification appeal. There it goes for jury misconduct appeal. And the factual findings made by the judge are presumed correct, as you know, and any inferences that would support those factual findings are presumed to be part of the decision. So if you're looking at a fact based appeal from a probate decision, it's a huge uphill battle. And I think that's even more true in probate court. You know, probate judges correctly understand their role is more than just to adjudicate a dispute between the parties, they are the protector of the estate, the courts job is not only to make sure the estate is distributed correctly, but that it's not stolen or wasted. So they, you know, the legislature has implemented these broad powers that probate judges have probate code 17 206, gives the probate court the discretion to make any order it deems appropriate. Now, there are some limits to that provision, which have been come up in recent case law. So some of the Courts of Appeal are starting to draw boundaries around that broad power, but not boundaries that are really going to limit the discretion with which they review a probate court's decision. So if it's not an issue of law, or arguably an issue of law, it's virtually not it is virtually impossible and not worth it to do an appeal.
Tim Kowal 13:02
Are you suggesting that, that when it comes to factual findings, civil appellate attorneys know that the substantial evidence standard of review applies there, and it's always tough to overcome? Is that Is it even tougher to overcome in in probate? Is there another gloss that even on top of substantial evidence standard, there's kind of this probate judges can make any order that's appropriate in the interest of justice? Is that all just lurking in the background? So you have to overcome even if you can, you can tick all the other boxes, you have to also persuade the court of appeal that this was in the interest of justice, this was an appropriate outcome.
David Greco 13:38
Yeah, I think that it's in the back of every appellate justices head, that what they're reviewing is the finding of a judge and what they're reviewing is the finding of a probate judge. So you know, there's no case law saying that a probate judge has factual findings are any more powerful than a jury? But in my experience, I don't think I've ever seen the factual findings of a probate judge get overturned unless they there really was no evidence, you know, really could not meet the substantial evidence standard, which almost never happens.
Tim Kowal 14:07
Okay, so the next thing I want to ask you about was appealable orders in probate court. Now under in civil appeals under CCP nine oh, 4.1, you have, you know, your list of appealable orders under probate code 1300. And some of the other probate code appealability provisions, you can practically take an appeal after the court says good morning. And and I was wondering, I mean, I've in my limited forays in probate matters. I've come up against this problem where I have to keep advising my client every time there's an order that comes down. Well, technically, this is appealable Do you want to appeal it? And you know, if you have a client who just who's happy to appeal everything you can wind up with with a large basket of appeals. I wonder if it makes you nervous that so many orders in probate court can be appealable and if it can be appealed, it must be appealed or else it's, you know, that right is forever waived?
David Greco 15:00
Yeah, you know, at first glance, section 1300 does seem pretty broad. And in some ways it is. But in other ways, it kind of just catches orders and judgments that, for all intents and purposes are just like final judgments that are nine oh 4.1, you know. So, for example, in order setting settling an account, it's basically a final adjudication on a petition to compel accounting. But because it's called the settlement of an account, it doesn't fall within, you know, the civil codes language of an appealable order. I think also that the denial of an accounting, of course, is not appealable. And so the legislature saw fit to include an order settling and account as a separate appealable order just to make clear that you could appeal that. So that's more of a final judgment, just using different language. And the same is true for ruling under Probate Code section 850. Section 50 is basically replevin codified, right, the law school thing we learned in first year replevin, the return of property. And so a final judgment or a final order from an 850 petition is really just an order after trial or summary judgment on a replevin action. But because the probate code uses different language than final judgment, I think they saw fit to create section 1300 to make clear that those orders were appealable. Yeah, and then there are things that are truly interlocutory, that 1300 makes appealable like the sale of real property. But I never see the sale of real property get appealed. Because it doesn't get stayed unless you post an undertaking. Nobody ever wants to post an undertaking. And it's reviewed for abuse of discretion. And so every sensible attorney is going to advise their client unless the property was sold for less than 50% of what it was worth. But it's not going to be worth appealing this kind of work, particularly because you have to post the undertake. So I don't view 1300 is particularly powerful or expansive, beyond, you know, the Civil Code.
Tim Kowal 17:02
You're not seeing too many too many cases where you have multiple appeals being taken up. No, definitely not. No. Okay. All right. Well, the next the next thing I want to ask you about was appellate stays in the probate context. Now, in your back, you know, starting with the comparison, in civil appeals, the general rule, under CCP 916 Is that an appeal stays the trial court proceedings. You know, that's the general rule. Of course, the general rule is swallowed by all the exceptions. But that's different in probate court, it seems under probate code, section 1310. A, you know, you're you're supposed to have a stay pending. You know, once you take the appeal, you tell us a little bit about the operation of the automatic of the automatic stay in light of well, just, I'll just go on and share my experience with the automatic stay. The difficulty there is that automatic is in the eye of the eye of the beholder, right, if your opposing counsel disagrees, that there's a stay, there's no automatic way to enforce it. You have to go and file a motion to get the trial court to say yes, there's a stay, or no, there's not a stay, and then then you're left with the petition for supersedeas. In the Court of Appeal. I wonder what your experiences and in the in the probate court do? Is there is there? Is there agreement among probate attorneys about what you know, what types of orders are stayed pending appeal, or is there a lot of motion practice on that?
David Greco 18:24
You know, I haven't seen a lot of motion practice on it. At my last firm, I did some civil appellate work. And I did have to, as you said, go through the rigmarole of filing a motion getting the court to confirm that there was a stay, it was an order to compel arbitration. But usually what I do when I file a notice of appeal is I send out a cover letter that explains the litigation has stayed to the opposing attorney. And sometimes that works. And sometimes pre educating my adversary is helpful because it saves the law of motion practice. Other times I get a phone call saying What are you talking about? There's no stay, you know, and then we have a conversation. But so far, I don't think in the last three years, I've had to fight over what state and what's not in probate court.
Tim Kowal 19:08
That's fortunate. I find those I find those fights, very taxing. Now let's move on to on the same subject of appellate stays under 1313 10. A has the provision for the automatic appellate stay and in appeals of probate orders, but under 1310 B, there's a provision that allows judges to make any order that would otherwise be stayed on appeal to be enforceable pending the appeal. I refer to this as the probate stay killer. How common is this? In my research, I haven't seen it come up too much. But I wonder if you see it in your practice, the 1310 B stay killer.
David Greco 19:47
It's my favorite provision of the probate code 1310 B for us comes up most often when we've had a trustee removed from that office. You and replaced. And you know, our standard practice is to ask the court to appoint a private professional fiduciary as somebody who is going to protect the assets of the trust and manage it competently. And 1310 B, you know, really basically, in my mind comes back to the courts role in protecting the trust and acting as a sort of shield against trustee malfeasance. Because if you have a trustee who has access to all these bank accounts, has access to all this real property, all this personal property, and they don't want to get removed, and they're removed, and they file an appeal, and it stayed. They see the writing on the wall. The judge already knows that the you know, that this trustee has acted in a way that concerns the judge, the trustee gets that. So is it really a good idea to stay there removal pending the appeal, which, depending on how many extensions they get, could be two or three years? Right. We know the Court of Appeal doesn't care how many extensions you get, I think you had a whole blog post about it. So it really that provision in my mind comes from the legislature's intent that the court protect the trust. And like I said, it's my favorite provision, because we get trustees removed all the time. And then they appeal. And then we file an ex parte to have them removed pending the appeal. And it's usually granted, we just had one done in Los Angeles. And thank goodness, we did because the new fiduciary who got in, got control of the assets turned out there were all these mystery signatories on the bank accounts and all sorts of chicanery that, you know, we suspected, we have proof of some chicanery, and then she gets behind the scenes the fiduciary, and discovers that it was much worse than than we had ever imagined. And so it is a state killer, but I think it's necessary in this type of litigation.
Tim Kowal 21:54
Now, is there a tension there between you know, the there's ordinarily you have a right to take an appeal. And under 1310 B, I mean, the idea there is it's it's going to moot the appeal, if you can enforce the order before the appeal is shaken out. By the time the panel gets to reading the briefs and working up its tentative opinion, you know, all the damage is going to have been done. And so the appeal is going to be moot. Do you see that happening? often to the point where it seems like Gosh, as litigants right to appeal is being obviated, and in many cases by 1310 B.
David Greco 22:28
I think that that is true in trusts that are meant to be administered over a short period of time. So if it's a testamentary trust, and somebody died, and you've got some real property to divvy up some cash to get rid of, yeah, I do. Because by the time you get to briefing or argument, most of that work is already going to be done. You know, and that's not always the case, sometimes there's a concurrent challenge to the validity of the trust, that will continue to progress while the appeal is going. But on the flip side, is these trusts that are meant to go on forever, or for 30 years, or, you know, the trust exists for the purposes of living beneficiaries, you know, up to the age of 30, and that they get a payout. And in those instances, you're not losing your right to appeal, you're just losing your right to be the trustee for two years. And then if you win on appeal, which you probably won't, because it's abuse of discretion, substantial evidence standard, but you know, shoot your shot. You get to be the trustee again, when the opinion comes out.
Tim Kowal 23:34
And the famous example, everyone will remember, the famous application of 1310. B was in Donald Sterling's case, the former owner of the clippers, when he appealed the the probate court had entered an order under 1310 B that allowed the the team to be sold out from under him. So by the time the appeal went up, damage had been done. And so the appeal, I think, if I recall correctly, it was dismissed as mood. So that was that's the famous example of an application of their teen 10 B stay killer. All right. Well, that's an interesting, interesting perspective. So that's so you would you think that the 1310 B is useful? It probably probably it sounds like you would agree with it ought to be limited to the probate context, or do you think there ought to be an equivalent to 1310 B and in a civil appeals or family law appeals?
David Greco 24:22
I think that needs to be limited to the probate context. And that again, goes back to the courts more expanded role in managing and protecting the trust assets. You know, the court has no interest the civil court has no real interest in a contract dispute between two parties. It's not its job to protect those assets, but it is the courts job to protect somebody's testamentary statement.
Tim Kowal 24:46
Let's move on to a two bit of pop culture. There is a there's a movie it was a 2020 movie. Someone turned me on to it a few months ago called I care a lot. And I think I found it you can watch it on Netflix. It's about conservatorship of views and I wanted to ask you a bit about it. I think you told me you haven't had a chance to see it. But you've read a little bit about it. For our audience who hasn't seen it, the premise of I care a lot, is it's about a corrupt professional fiduciary, a conservator, who has a back scratching relationship with with some doctors, of wealthy elderly people and the fiduciary will go to go into court with a declaration drafted up by one of one of her doctor cronies. And the declaration would state that, you know, poor, wealthy, Miss Jones is desperately in need of the assistance of a professional conservator. And the judge would would sign off on and say, Well, of course, Miss Miss conservatory is a very well respected Conservatory in our court. And this doctor is a very well respected member of our medical community, and go ahead and appoint the conservatorship and then the the greedy, corrupt conservator would go in and loot the estate. And so I was watching this and thinking, Now, this could never happen in our system, because, because I thought, I'm going to ask David Greco that question. So David, why could the premise of why Kerala never happened in our system?
David Greco 26:09
Well, the answer is that it does not I think, to the extent that the movie sensationalizes it and dramatize it, and I haven't seen any back scratching relationships with physicians. And I really haven't seen any professional fiduciaries behave in this way. But, you know, I have seen conservatorship abuse. I have seen children that attempt to have their parents conserved because they were written out of the estate plan, and they want to get the conservatorship and change the estate plan. And I've seen children tried to have their parents conserved because the parents stopped taking their phone calls, because they don't want to talk to their child, which is, you know, probably difficult for the child, but a conservatorship is not the answer. And, you know, we have seen in our practice, conservators take advantage of wealthy disabled people. We had a case must have been many years ago, by now where the stepdaughter of this very wealthy, taxable estate type gentleman, took it upon herself to take him to a new estate planner, deed a bunch of his properties to her using the conservatorship. And then when her conservatorship status was contested, you know, she locked him in the house with her. She refused to let the court investigator interview and she was used to let any of the examiner see and it was a protracted, really contentious battle. There was a guardian ad litem appointed, you know, and there's so many other children involved. And I want to say probably that case, cost collectively the party's, you know, seven or eight figures to litigate over the course of our many years. So it does happen. But the good news is that the legislature has started to catch on with the free Brittany movement. I think that somebody thought this might be important. And so they did implement some new changes this year to the conservatorship laws. They broadened the types of people who can ask the court to investigate conservatorship abuse, they increase the penalties for conservatorship and abuse against both individuals and private professional fiduciaries. They brought into the investigators powers. And there's some other stuff in there that it's moving in the right direction. And of course, one of the most important things that came out of the free Brittany movement, so to speak, is that conservatives can now choose their own counsel. And the Business and Professions Code has been incorporated by reference into this new section, to make clear that the Conservatives chosen Council's job is to advocate for the Conservatives preferred position, not what the council may independently think it's best for the conservative tea. Right. And so you know, the changes are positive. But I don't think there are enough. And also many of them are funding dependent. They're subject to a separate legislature bill providing funding for these laws to go into effect. And who knows when or if that will happen?
Tim Kowal 29:12
Yeah, no, that's, that's interesting. So you're saying that a moment ago, you said that one of the recent changes is that proposed conservatives or conservatives now have the right to retain their own counsel to advocate for their own positions? I'm surprised that I was not aware that that's only a recent development, how recent is that?
David Greco 29:31
It was past I want to say at the end of 2021, and goes into effect this year. And you know,
Tim Kowal 29:37
before that you would have conservatories or guardians ad litem who would just go into court and say, Well, this is what I think Mrs. Jones needs, and then and no one would be would be hearing from Miss Jones as to what she actually wanted.
David Greco 29:51
That's right. Yeah, court appointed counsel. And it really depends on the court appointed counsel because some had always viewed their role as advocating for what the conservatory want
David Greco 30:00
It other court appointed counsel viewed their role more as a guardian ad litem somebody to act for the conservatee and so the change in the law really makes it clear that you act on behalf of the conservatee
Tim Kowal 30:12
yeah yeah you mentioned the the free Brittany movement and I just one comparison that has stuck out to me once that became a thing a meme was that I recall well I know of how the the the asylums the mental asylums in California were done away with back in the 70s I believe and so you know, there's there's pros and cons to that obviously but we see a lot of homeless who are in need of mental probably need someone to go and ship them off up there but they're not going to do it voluntarily. But we made that decision that okay, personal liberty prevails over that yet we're still we're shipping off you know, poor wealthy Miss Jones to to our new kinds of asylums Are you know, posh nursing homes? If if you have a doctor declaration saying that now she's kind of lost her marbles, she needs some help caring for herself, even if Miss Jones says no, I'm fine. So that's it's an interesting juxtaposition, in my mind anyway, that we let that we respect the rights of homeless people sleep on the street, and we won't ship them off to get mental care. But if someone has a lot of money, and there's a professional fiduciary and a doctor who will sign off on putting them in, in a home against their will, that is an option in under our policy. Jeff, you had a you want to talk about the 2020 case conservatorship of OB.
Jeff Lewis 31:35
Yeah, you know, David, I don't do a lot of probate work titled maybe a handful of probate appeals my career back in 2020, there was a decision called conservatorship of OB that wrestled with the question of what to do with the clear and convincing standard required for evidence when you have an appeal. And the California Supreme Court ultimately ruled that when you're up on appeal, and dealing with that burden of proof that the Court of Appeals should consider that higher requirement that higher quantum of evidence required for clear and convincing. I was just wondering, I know in the probate context, there are certain instances where clear and convincing as an issue, for example, I think when looking at a testator is intent or capacity. And I'm just wondering if the the case from 2020, this conservatorship of OB case has had any impact in terms of how you argue cases in the court of appeal or how you see appellate justices or resolving cases, or is it too new to say it's had any impact at all?
David Greco 32:36
You know, I haven't argued a conservatorship appeals since OB came out. But every time that we approach to conservatorship appeal, we assumed that clear and convincing affected the way the court of appeal would review the evidence. And it sort of facially makes sense, right? You can't review a decision for clear and convincing evidence based just on substantial evidence, right? Particularly when the rights of somebody somebody's personal liberty is involved, there has to be some sort of higher bar to meet, even at the appellate level. So sort of in contrast to what we talked about earlier, how probate judges have all this leeway and discretion to make factual findings. I think that that standard and the way we've always approached it in our firm is that that standard applies at every level.
Jeff Lewis 33:30
Okay, interesting. All right. And another question I had is I just recently obtained a sanctions award against opposing counsel on a probate appeal. And I don't do probate appeals often and thinks maybe the second or third time I've ever asked for sanctions and 25 years of doing this. I wonder, do you have a rule of thumb for when you might seek sanctions in a probate probate appeal?
David Greco 33:54
You know, our default rule is that we don't ask for sanctions. Most of the time, it escalates the dispute. It gets in front of our efforts to get something resolved. And it cost the client money that they might not get back. You know, you can file for sanctions, it doesn't mean you're going to get them. And so I don't really have a rule of thumb, but I thought about it as sort of as you were asking that question. And I think that if I didn't have to have a rule of thumb, it would be well, if I audibly scoff when I'm reading the appellate brief, and I can tell from argument that the judges probably audibly scoffed, when they read the appellate brief, and the client wants to pursue sanctions, then I would probably file a motion for sanctions. But it you know, by default, and by strong default, it's not not our go to our focus is always where do we get a resolution for this client? You know, as soon as we can, in the best way that we can, and I rarely see sanctions as Just moving the settlement ball or resolution ball forward.
Tim Kowal 35:04
So you'd have a literal last test for whether to pursue sanctions.
David Greco 35:07
Yeah, I did have a Ninth Circuit case, it was actually an education case, but where we won at the district court, and then we wanted the Ninth Circuit. And their appeal was, you know, I did scoff at their opening brief. And then again at their reply brief. And after we got the opinion, the opposing attorney filed sanctions against us, despite that, we won. And so I did think about filing a sanctions motion because of their sanctions. But ultimately, my client had been in this litigation for I think, four or five years, and it was time to wrap it up. And I didn't want to drag it out anymore. So that's a situation where if it comes up again, yeah, I'll probably file.
Tim Kowal 35:50
Yeah. So you had to leave unresolved whether they filed a sanctionable sanctions motion. All right, so So before we leave the top topic of probate and conservatorship appeals, there any any other war stories, or words of wisdom, or tips, or traps that you want to import impart to our audience?
David Greco 36:11
Oh, geez, I love a good war story. We 2020 had a $40 million trust that was managed in California for 60 years, two daughters come to California and pick up their mom from a medical facility and move her to Idaho against doctor's orders. And suddenly, the trust assets are being sold to LLCs in Idaho. And so my my client was California resident and a beneficiary of the trust filed suit, to get the property back and to remove the mother who's incompetent at this point that his trustee and they filed a motion to quash for lack of personal jurisdiction. And the trial court granted the motion, which I thought was ludicrous. So we appeal and we got a published opinion reversing. And the the published opinion was clear that jurisdiction was so appropriate in California, that it was almost indisputable. And so that was a great win. Published opinions are always fun. And I got a bunch of outreach from probate litigator, saying thank you so much for this case, because finally, there's a personal jurisdiction case about trusts in California. Because before that, there was really the only one trust related personal jurisdiction case from SCOTUS, which was Hanson V den Club, which we all learn about in you know, one L. And so this was kind of the second case in that series. And so that was a really fun appeal. They did try to get cert at the California Supreme Court, but it was denied. Yeah, correct. Yeah, that
Tim Kowal 37:48
was the Buskirk case. I saw that one that came up. And I saw that was. Yeah, that was one of David's cases. Well, good. Yeah. Good. Yeah. Interesting to have the inside, inside scoop on on that case. All right, Jeff, time to move on to the real hard questions.
Jeff Lewis 38:07
So yeah, if you've listened to our podcast before, David, you know, we
typically conclude our interview with the lightning round, which are the most pressing important and critical questions that backs appellate nerds around the globe. And we're looking for short, quick responses to these vexing questions. Are you ready, sir? short and quick. Let's do it. All right. First, the Fran Campbell question. Do you include table of contents as the first line in your table of contents and your briefs?
David Greco 38:40
Depends on the legal system?
Jeff Lewis 38:44
That is probably the best answer for every question. You're going to hear today.
David Greco 38:48
If I had my way, the answer would be no.
Jeff Lewis 38:53
Font preference century schoolbook Garamond or something else?
David Greco 38:57
Something else?
Tim Kowal 38:58
What do you what don't leave us hanging? What's this something else?
David Greco 39:01
It's called the century expanded. And it's a limited font. I think that the Supreme Court of the United States uses it.
Jeff Lewis 39:10
We're going to put a link to that in the show notes. Tab.
Tim Kowal 39:13
We're going to expand it I thought they were on century school book, but we'll have to.
Jeff Lewis 39:19
Okay, expand our font knowledge. All right. After a space excuse me after a period two spaces or one space, one space, correct, sir. Oxford comma for it or against it for it. Good. And we'll do one more when you're doing major argument headings in your briefs. Do you use all caps initial caps or sentence case? sentence case? Very nice. The
Tim Kowal 39:51
right answer also.
Jeff Lewis 39:52
All right. You survived the dreaded lightning round unscathed. And most your answers were correct. I think at this part of our interview, we're going discuss some recent cases, and you're welcome to stick around and offer your two cents or log off if you if you have pressing probate matters to attend to. Oh, I'd
David Greco 40:08
love to hear it.
Jeff Lewis 40:09
All right, Tim.
Tim Kowal 40:11
Yeah, I just had one case it's it's on point for today. It's a probate opinion get raised a question that I did not realize that not been answered before. It's about probate stays and attorney fee awards. So the question is, when the losing party appeals in order that gives rise to a motion for fees, does the appellate stay deprive the court of the probate court of jurisdiction to go forward and award the fees? So in civil cases, the answer would be no, I think, but in probate courses, cases, we don't have an answer one way or the other. And after in in conservatorship of Bauer, we still don't have an answer because the Court of Appeal punted. That was a conservatorship case, the probate court found that the conservator had incurred expenses in bad faith. And so the Conservatives widow was entitled to attorneys fees, and the amount of fees was to be determined by a later motion. But the conservator rushed ahead and filed an appeal of the finding of bad faith that gave rise to the entitlement to fees. And then the conservative turn turned around and argued that based on his appeal, and the resulting appellate stay, the trial court, probate court could not go ahead with the fee motion to determine the amount of fees. So the answer to the question of whether the probate court can actually award the fees pending the appeal was not answered ultimately, because by the time the court got to it, the appeal of the underlying accounting award and finding a bad faith had been affirmed. So the court ducked the question under 13, probate code 1310. So we don't know whether a finding a bad faith and the resulting appeal stays the jurisdiction of the probate court to go forward and award the fees. I wondered if either of you thought that the appellate state should apply there, should the probate court have been able to go forward and award the fees set the amount of fees or was it stayed from doing that pending the outcome of the appeal?
David Greco 42:06
So we just had this issue in another case, and our trial court awarded the fees and ordered the trustee to pay our fees out of the opposing party's portion of the trust. And we briefed this issue top to bottom, and we found some pretty good case law. I'll send it to you after this, basically saying that it's no different than civil and the probate court because it has a jurisdiction to direct the internal affairs of the trust. If it's ordering the payment of attorneys fees out of the trust, that it can do that, regardless of whether an appeal has been filed.
Jeff Lewis 42:45
I think David's 100% Right. We I think he suspected I was gonna say that.
Tim Kowal 42:51
Yeah. All right. Well, that's that's the only case I wanted to share this time around. We have some some new Well, let's move on to some legal news and appellate news and tidbits as of March 28 2022. The California Supreme Court has a new Justice Patricia Guerrero. I just thought our audience should be aware that we we now have another new justice.
Jeff Lewis 43:15
Yep. Good stuff. Good stuff there. I'm really interested in this next Ted tidbit. You Oh,
Tim Kowal 43:20
yeah. I got another one here. A question is should courts allow witnesses at trial to wear transparent masks? This is an issue that came up in People vs. Edwards. And I found this case on San Diego law professor Sean Martin's blog, and Professor Martin NASS. Why not? Why not just allow the witness to wear transparent masks. He says that there's very little if any argument as to why those kinds of face masks shouldn't be transparent. As such mass undoubtedly exist. They've existed for some time, using those masks would solve the problem concerning this case brought up the issue of the Confrontation Clause because it was a criminal case, it would solve the problem presented under the Confrontation Clause, and that way the constitutional requirements will be satisfied. And Professor Martin then takes justice Wiley to task for relying on a Thomas Jefferson, quote, us to excuse compliance with Professor Martin believes is the constitutional mandate there. The Jefferson quote was, quote, a strict observance of the written law is doubtless one of high duties of a good citizen, but it is not the highest, the laws of necessity of self preservation of saving our country, when in danger are of higher obligation to lose our country by a scrupulous adherence to the written law would be to lose the law itself, with life, liberty and property, and all those who are enjoying them with us. Thus, absurdly sacrificing the ends to the means. And quote, and Professor Martin's response to that was, quote, with respect that sentiment sentiment doesn't belong in a judicial opinion, not this one, and not anyone. We're talking about the confrontation claws, a constitutional requirement. Part of the Constitution, it's part of the Constitution. It's not optional. It doesn't just apply in peacetime, it doesn't get dispensed with in a pandemic. It's written in the constitution precisely because we think it's a critical liberty. And precisely because we're worried that in a crisis, policymakers might be inclined to dispense with it. It's not just written law, it's the foundation of American democracy. It's what and who we are period. I thought that was a very strident summary or summation of that, that point of view. And based on some of Professor Martin's other writings, I would have I, I'll just say I didn't expect it from him. And I thought it was interesting. We're sharing wonder if you if you have any thoughts on it, Jeff, or David.
Jeff Lewis 45:43
I think we've all kind of developed over the last two years, the ability to gauge when someone has half their face covered, you know, what they look like, whether they're smiling or not gauge someone's credibility. Judges have had to do this during trials. And I gotta tell you, I don't see the confrontations clause issue here. But I do see one interesting thing, though, and that is, you know, the deaf and hard of hearing community rely on facial expressions when reading sign language, or understanding sign language. And I wonder how the use of masks might impact on the rights of members of the deaf and hard of hearing communities serve as jurors, and to see that component of someone's face in terms of either someone who's testifying by through an interpreter or just the face at all. So it's a super interesting issue. But at the end of the day, I don't agree with Professor Martin, that mass impact computations clause and the way he suggests
Tim Kowal 46:40
Interesting, okay.
Jeff Lewis 46:43
Hey, one other tidbit I wanted to add, I noticed last night that the Supreme Court has just proposed a new rule, I think it's going to pass that briefs submitted to the Supreme Court no longer are to use, pass them in the tables of authorities. Instead, you're supposed to put each and every time and authority appears on every page. And that's long been the policy of my firm, because I know the research attorneys in the second district in Los Angeles do not like the CPUs have passed some. And I just thought it's interesting to note that the Supreme Court's proposing that rule.
Tim Kowal 47:12
Yeah. What about the other thing? Does your firm have a practice on pass him?
David Greco 47:17
Right? Yeah, we don't use it, I think pass them is the lazy man's TOC. And, you know, you can tell when somebody's been rushing through their briefs, because every site has passed. It's like, you must not have a legal system. For all your sites. But yeah, I agree. I think it should be eliminated from practice of law.
Tim Kowal 47:39
I agree. We have unanimity.
Jeff Lewis 47:43
And the final tidbit, I wanted to point out Howard Ashman, who's an outstanding appellate lawyer, and he had the longest one of the longest running appellate blogs I'm aware of, it's one of the first ones I ever remember reading the blog called how appealing he recently authored a list of top legal podcasts and was kind enough to include our podcasts on his list. And so yeah, we'll include a link to that article in our show notes. And Mr. bashment. If you're listening to this podcast, we would love to have you on the show.
Tim Kowal 48:11
Yeah, we'll have to make it happen. All right. Well, that wraps up this episode.
Jeff Lewis 48:16
If you have suggestions for future episodes, please email us at info at cow pod podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
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You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes 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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When I first read Art Works Studio & Classroom, LLC v. Leonian (D2d7 Apr. 12, 2022 no. B304461) 2022 WL 1090984 (nonpub. opn.), something seemed odd about it. I had to read it again to be sure: it is definitely odd.
The factual setup is not that odd. It is a commercial lease dispute. The tenant was upset about how some estoppel certificates were drafted. You see, as part of its efforts to sell the building, the landlord prepared estoppel certificates to give to the buyer. The certificates stated the lease was up in 2018, when in fact the landlord well knew the tenant had already exercised its five-year option to 2023. But the tenant did not catch this when completing and signing the estoppel certificates. So when the landlord sent a 30-day notice to quit based on the estoppel certificates, the tenant sued to enforce its option right.
The landlord filed an anti-SLAPP motion, arguing the tenant’s suit arose from the 30-day notice, which the landlord argued is protected conduct. (Comment: Come on.) The trial court granted the anti-SLAPP. The court also awarded landlord its attorney fees. Tenant appealed.
While the appeal was pending, landlord filed a UD action. This action, too, was based on the same estoppel certificates. The trial court granted landlord’s motion for summary judgment.
To take stock so far: There is an appeal of an anti-SLAPP order where the tenant claims there was at least minimal merit for its interpretation of the estoppel certificates. And there is a judgment that ultimately rejected tenant’s interpretation.
So you can guess what the landlord did next: The landlord moved to dismiss the appeal as barred by res judicata based on the UD judgment. And the Court of Appeal agreed. “Because these issues were fully litigated in the unlawful detainer actions, appellants are barred from relitigating these issues.”
Now here is the odd part. The Court of Appeal has granted the landlord’s motion to dismiss the appeal. So that means what happens next is the appeal is dismissed and the anti-SLAPP order is affirmed, right?
But that’s not what happened. The court did not want to affirm the judgment. So it did not dismiss the appeal. “Because dismissing the appeal as moot would constitute an affirmance, we have elected to reverse with directions.” The court’s directions: “We reverse the order granting the anti-SLAPP motion and remand the matter to the trial court to vacate the order as well as the derivative order awarding attorneys’ fees.”
In other words: The respondent landlord loses.
This is the part where you probably feel the need to go back to the beginning and find out what you missed. Because you have never heard of a respondent winning its motion to dismiss an appeal, and losing the appeal. Yet that is what happened here. When the Court of Appeal agreed with the landlord that the appeal was moot, the end result was the anti-SLAPP ruling and fee award for the landlord were both reversed.
How did this happen?
Here is what I think is going on here:
First, note that the landlord was not technically correct when it argued the issues in the UD judgment “are the same issues raised in the civil action (and in this appeal).” Remember that, on an anti-SLAPP motion, the plaintiff does not need to prove its claims by a preponderance standard. All the plaintiff has to show is “minimal merit.” So the UD judgment against the tenant had no effect on tenant’s appeal: it is quite possible that tenant’s claims had “minimal merit” even if they did not have ultimate merit.
So, no, the UD judgment did not technically render the anti-SLAPP appeal moot.
(But on this point, the court correctly noted that tenant rendered its appeal moot when it voluntarily vacated the premises. This is one reason UD appeals are so difficult: the possession issue becomes moot unless the tenant can get a stay, and stays require a showing of “extreme hardship.” (Code Civ. Proc., § 1176.))
Second, the Court of Appeal did not want to deal with the SLAPP issues. The court specifically said it would not reach the first prong, whether the tenant’s lawsuit arose from protected activity, “because irrespective of the outcome appellants would not be afforded any meaningful relief in the trial court.” Which is true: even if the tenant won on prong one, prong two, or both, tenant’s lawsuit was moribund because of the UD judgment.
Still, I suspect the Court of Appeal thought it was a little sharp of the landlord to slip out of the option the way it did, and did not relish the thought that the landlord, who would already recover its costs in the UD action, should also recover fees in the tenant’s action. So by reversing, the tenant will now be able to dismiss its action without attorney-fee exposure. (Civ. Code, § 1717(b)(2) [“Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.”].)
But this seems a really circuitous way to go about it.
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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The court sympathizes with the appellant here whose two motions to vacate were denied, but holds that by listing only the second denial in the notice of appeal, the court could not reach the merits of the first denial.
In Ramirez v. Oxford Properties, Inc. (D4d2 Apr. 12. 2022 no. E076022) 2022 WL 1090899 (nonpub. opn.), Ramirez moved to vacate the dismissal of her complaint, relying on Code of Civil Procedure section 473 based on excusable neglect. Ramirez made a clerical mistake in her motion, unfortunately, identifying the dismissal of a cross-complaint. This shouldn’t have really mattered. As the Court of Appeal noted, “A reasonable person, well-acquainted with the record, could have looked at that motion and thought, “Oh, this doesn't really mean the cross-complaint dismissal, that's just a mistake, it's really directed at the [complaint] dismissal.””
But the trial court denied the motion and told Ramirez to bring another motion identifying the correct dismissal order. Which she did. But then the trial court denied that motion as untimely.
Ramirez then appealed. But her notice of appeal only listed the date of the second denial order. Not the first denial order. Ramirez argued the first denial order in her appeal. But the court held that the defect in her notice of appeal was insurmountable: she needed to appeal the first denial order, and she didn’t.
The defect wouldn’t have been a problem if the second order — which Ramirez did identify in her notice of appeal — was not an appealable order. After all, a “notice of appeal must be liberally construed.” (Cal. Rules of Court, rule 8.100(a)(2).) Thus, if a notice specifies an order issued on one date, but the only order then appealable was issued on a different date, the notice may be construed as an appeal from the latter (at least in the absence of prejudice to the respondent). (E.g., Swasey v. Adair (1890) 83 Cal. 136, 137; Yolo County Dept. of Child Support Services v. Lowery (2009) 176 Cal.App.4th 1243, 1246; Call v. Los Angeles County Gen. Hosp. (1978) 77 Cal.App.3d 911, 914-915.) So where the date specified is obviously a mistake — i.e., because an appellant is not presumed to have appealed from a nonappealable order — the appellant may be deemed to have appealed from the appealable order.
But here, both the orders denying Ramirez’s two motions to vacate were separately appealable: “On the other hand, where several judgments and/or orders occurring close in time are separately appealable ..., each appealable judgment and order must be expressly specified ... in order to be reviewable on appeal. [Citations.]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021) Notice of Appeal and Cross-Appeal, ¶ 3:119.1, p. 3-53, and cases cited.) “ ‘ “The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only ... one of two separate appealable judgments or orders.” ’ [Citation.]” (In re J.F. (2019) 39 Cal.App.5th 70, 76.)
By only listing the second, and not the first, the only reasonable interpretation was that Ramirez did not intend to appeal from the first order.
Appeal dismissed.
The court had misgivings about the result: “We take no pleasure in dismissing Ramirez's appeal. She was denied a hearing on her claims in the trial court; now we are denying a hearing on her claims in this court. “[T]he strong policy against disposing of cases on procedural deficiencies rather than trying cases on the merits” is close to our hearts. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085.) But “[a] proper notice of appeal from an appealable order is jurisdictional. [Citations.]” (Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 440.) We have no leeway to let Ramirez appeal from an order not specified in her notice of appeal, no matter how much it may appear to be in the interest of justice to do so.”
Comment:
This is a good, lawyerly analysis. But it is not the analysis other courts would follow. Last year a very similar thing happened in San Felipe Farms L.P. v. LLY Ranch (D4d3 Jul. 8, 2021) no. G060126 (discussed here), but with the opposite result: the Court of Appeal saved the appeal and decided it on the merits. The appellant had filed two motions for intervention, which were both denied. They were arguably both appealable (the court specifically did not decide that point), but the appellant only appealed from the second order. The court held that it didn’t matter: either way, the notice of appeal listing the second order could be deemed to encompass the first order as well.
Here’s another solution if the court wanted to be as creative as the Second District, Division Three in Beckering v. Shell Oil Co. (D2d3 2014) no. B256407 (nonpub. opn.), at *2 n.1: just order the trial court to enter a nunc pro tunc order to make the order conform to the date in the notice of appeal. In Beckering, the Court of Appeal was faced with a premature appeal of an order granting summary judgment. No problem: the court simply ordered the trial court to enter a judgment nunc pro tunc the same date as the summary judgment order. Without awaiting the actual nunc pro tunc judgment, the court, quite satisfied, went on to construe the notice of appeal as referencing that as-yet-nonexistent judgment.
To repeat, I agree with the Ramirez court’s treatment here, respecting the appellate court’s jurisdictional limits. But that treatment seems to be rare these days.
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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CEB published my short article on McQueen v. Huang (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606, a decision that imposed appellate sanctions on a litigant based on “gamesmanship” in the trial court. Not in the appellate court — the appellate sanctions were for trial court conduct.
The article is available at CEB’s website here.
The PDF article is here: Tim Kowal_'Gamesmanship' Throughout Litigation May Raise Risk of Sanctions on Appeal.pdf
My original post on McQueen is here.
As I mentioned before, the appellate arguments here were not sanctionable by themselves. What earned the appellant and counsel sanctions was their conduct in the trial court. Beware engaging in litigation practice that the court might perceive as “gamesmanship.” If you ever need relief in the Court of Appeal, you could find yourself sanctioned.
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. 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.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.