The authors of the famous CalAttorneysFees.com blog, Marc Alexander and Michael Hensley, visit the California Appellate Law Podcast to discuss tips, traps, and best practices on attorney fee motions. We discuss why California’s attorney fees statutes can be so complicated, why reasonable fees sometimes get cut, and why unreasonable fees sometimes don’t.
Some key takeaways:
💡 Give the judge a roadmap. Explain: (1) Why you get fees; (2) Why your motion is timely; (3) What is the appropriate lodestar rate; (4) Why is the amount reasonable?
💡 Don’t be greedy! Inflated fee requests can ruin your credibility with the judge, and are likely to be severely chopped, or even denied entirely!
💡 Support your fee request with a detailed declaration from a lead attorney.
💡 Establish the necessity of litigation by discussing efforts to settle, and incivility by the other side.
💡 Consider retaining an expert if the fee request is large.
💡 Make your objections as specific as possible.
💡 Object to block-billing.
Marc Alexander’s biography and LinkedIn profile.
Michael Hensley’s biography and LinkedIn profile.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
Other links:
Marc Alexander 0:00
I think that there's a lesson though, that we can draw from the fact that reconstructive bills lack credibility, and that is that we can do more within law firms to train attorneys how to prepare their timesheet.
Announcer 0:20
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 0:33
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:35
And I'm Tim colwall, California Department of podcasting license number 25470 Niner. And in each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both Jeff and I split our practices about evenly between trial courts and appellate courts and we try to give trial attorneys in our audience some appellate perspective in about various issues that arise in trial and on appeal,
Jeff Lewis 1:02
and welcome to episode 28 of the Podcast,
Tim Kowal 1:05
episode 28. And today, we are pleased to host attorneys Michael Hanley and Mark Alexander. Our audience knows Michael and mark as the creators and authors of the indispensable California Attorney fees.com blog. Mark Alexander is a 35 year business litigator turned mediator. He sits on the mediation panels of the United States District Court for the Central District and the Orange County Superior Court. He focuses on intellectual property cases employment issues and lending disputes. He has also written about litigated and mediated many attorney fee disputes. Mark clerked for the honorable Warren J. Ferguson on the Ninth Circuit Court of Appeals early in his practice. Mike Hensley is a trial lawyer whose client roster over have over 40 years of practice includes global and fortune rank companies and corporate executives. Mike has argued cases before the United States Supreme Court not to mention are all of our Southern California state and federal courts both mark and Mike's trial work is covered at all, including trial and appellate work and state and federal courts in California working on cases involving real estate, unfair competition, non compete non solicitation partnership and corporate and other business disputes, other types of disputes, Mark and Mike write the California Attorney fees blog, which provides a resource to practice practitioners, jurists and the public about the law governing attorney fees and cost awards in California State and Federal Judicial forums. So Mark, and Mike, thank you for joining us today. Welcome to the podcast. Thanks, Ken. It's a pleasure, Jeff. And I like many practitioners in the state always tend to stumble upon your blog. Whenever we have attorney fee motions, everything about that area of practice seems to provide surprising issues, things that you thought you'd seen it all but it turns out, there's something new every time you happen to see it, and then you do a Google search. And lo and behold, there is Cal attorney fees.com with a case right on point. How did you two come to decide to start that blog?
Michael Henley 3:04
Mark? Because you can answer that?
Marc Alexander 3:06
Well, Mike and I were interested in starting a legal blog back in 2008. And Mike said, Well, how about attorneys fees? I said that sounds like a great idea because it interests attorneys, it interests judges and our interests, our clients. And I set up the blog using TypePad. And over the years, it's been a work in progress. We have over 5000 posts on the blog now
Tim Kowal 3:36
5000 How many m&e cases would you estimate you have read in the course of doing this blog is it is that about one case per blog post,
Marc Alexander 3:44
Mike has read far more of the cases than I have. Mike has read every case that we've posted on I've read many of them that not as many as Mike,
Michael Henley 3:55
I would have to say. And this this may be surprising for people that are on your state appellate system. And the state appellate system is where we get most of our published decisions, as well as unpublished and usually the court of last resort, right, going up from the trial court level, then under constitutional mandates, they have to write a decision. And then you can if you lose there you can petition for the Cal Supreme Court for writer success rates on civil was maybe 2% or 3% in a non issue. So I would tell you that each of the decision library, actually unpublished decisions, at least half if not more, either involve a singular attorney speed issue or have one evolve. So you can imagine the number of days because we've been doing this for since May of 2008. I mean, I'm going to guess that we probably have done somewhere between five and 7500 decisions that we've looked
Tim Kowal 4:59
at. So What is the day in the life of the authors of the Cal attorney fees blog? Are you? How many of these decisions come down on a daily basis? How many of them weren't the write up? Are you writing up all of them are just the ones that stand out is of note,
Michael Henley 5:15
what I do is you can go to the Cal ca.gov website, and appellate opinions are posted, usually 30 minutes after the issue. Generally, the litigants get a notice from the appellate court. So they have a little bit of advance notice. But then they're actually put on this website. And it's divided into published John Kasich. So you can go in and you can click and actually see the decision that session. And basically, every day or if I'm in a trial, on weekends catch up, I go through all of those decisions. And if it involves a fee, issue 95% of the time, I will post on it from there, Mark. And now our legal assistant Shanna straighter, basically uses the TypePad and posted on the blog. And sometimes if someone is sick or on vacation, there's a little bit of a lag, but we usually get caught up in short order. So that's how it works. If you go on the website, at the homepage, over on the left, we have categories. So for example, we have section 1717, which talks about Civil Code 7870, we have private attorney general, we'd have employment, we have consumer statutes, you can click on that, and find whatever decisions we posted since May of 2008, there also is a search function that you can put in key words. And that will narrow down your search for something but you can go to Google or whatever you're using. And if you put in the words immediately, or posted somehow right, risen to the top, and you'll be using find find some information just by going into Google and putting in people
Tim Kowal 7:06
or their particular issues that you have in mind that you're looking for more clarity from from cases, are there any are there any doctrines or particular cases that stand out as being just just kind of something's not right, or something really needs to be clarified. And you're hoping to see a case really advance what you see as an as a need or a gap in the law of attorneys fees.
Michael Henley 7:30
Sure, whatever is in the private attorney general area, and one of the elements that you have to satisfy is you have to show that you're benefiting a large number of people and that your financial interests are of such a strong nature, that you can have such again millions of dollars or hundreds of 1000s of state that you are benefiting someone or that the financial costs would outstrip what you would have to do to probably win the case. I do believe that there are splits and things in among the appellate court. I think that the Supreme Court needs to probably come back and give some help on this area, because there's always that a concrete is an intangible. And in terms of how the courts come to conclusions on that, I think that's an issue that's going to have to be decided at some point.
Tim Kowal 8:21
Let's take a step back from the blog for a moment and just get to know a little bit more about the attorneys behind it. What is what's a favorite part of your practice? You know, you're not just authors of a blog, you are practitioners and what what's what what do you like best about your legal practice? Mark, we'll start with you. Well,
Marc Alexander 8:38
these days, I work solely as a mediator. And I greatly enjoy the mediation process. Because I find that very satisfying to resolve disputes, I can encounter hundreds of attorneys through the through the year, I can encounter all kinds of issues. And in a way my interest in mediation was a response to the work that we did on the attorneys fees blog, because I came to understand just how many hurdles, the attorneys fees issues presented to the average litigant. And I felt that there are more efficient ways to mediate to resolve disputes. And that's one of the reasons I became interested in mediation. litigation, to some extent is a sport for someone who is wealthy. Most people can't afford it.
Tim Kowal 9:39
Yeah, Mike, what about you? What's your favorite part of your practice?
Michael Henley 9:42
Well, I think my favorite part of the practice is trying to reach a result. So again, we are talking about a resolution that's in the best interest of the client. And because litigation is a expensive process the day I do try to exchanging information early on in case and see if we can get a mediation or somehow get it resolved. And the reason why is as you become older, I think your importance is, it's not a sports contest in terms of simply winning or losing, I think you have to develop a skill set to be able to go from complaint, all the way up to appeal. But that is extremely expensive. And I think, for most clients, a resource draining and emotional process that they do not want to get involved. So I think to answer it, and it may sound corny, but it's to try to really help people at this stage.
Tim Kowal 10:44
Yeah, and you must be acutely aware of that covering these cases, with all of these lopsided fee awards and judgments. You know, we're judgments are dwarfed by the fee awards, it's got to just be a constant realization that, you know, the only ones making out from some of these cases are the attorneys. And at some point, the clients, the clients do start to realize that, and the other side
Marc Alexander 11:05
of the coin is that one can spend an enormous amount of money on paying attorneys fees, and then discover, at the end of the day, that even though one prevails, one gets a huge haircut on the attorneys fees or doesn't recover any at all. That's the flip side, flip side of the unreasonable attorneys fees award,
Michael Henley 11:25
I'll add that one of the things I think you have to do on your client retention is analyzed sister's a fee shifting base, and then you've got to tell your client about that. So if there's no attorneys fees basis, each side is going to bear their own costs, it still wouldn't change my opinion, and we try to get it resolved sooner rather than later. But if there's an attorney fees shifting basis, then might not might be paying me as well as the other side. And that, again, is another significant basis to try to get things resolved early on. Before, you know you get into a litigation contentious. It's a train wreck, and everyone did a lot of fee. And in the end, someone gets stuck with not only my fees, but the other side.
Marc Alexander 12:15
I would add to that, that I've come across one case, and I'm sure there are others failure to raise the attorneys fees issue early on in the case led to claims of malpractice.
Tim Kowal 12:29
Yeah, that's always something to be very, very concerned about early on in the representation. And throughout one other question by way of background, I wondered if you would each tell us a story, maybe a case that you each worked on that was formative in the way you thought about the law from from then on forward? Do you have any experiences like that mark would stay with you? Well,
Marc Alexander 12:51
the first case that I got to see me go from beginning to end was a copyright infringement intellectual property lawsuit. I worked on it for three and a half years, and got to see it from its inception all the way through trial, I had the privilege of working with an absolutely terrific trial attorney named Morgan Chu, who's in Los Angeles. And it was it was just a fascinating process soup to nuts. And I also found from that immersive experience, that I'm actually pleased to work on a variety of different cases, rather than spending all of my time working on a single case.
Tim Kowal 13:38
Do you prefer being a generalist and to a specialist?
Marc Alexander 13:41
Yes. Jack of all trades?
Tim Kowal 13:44
Yeah. Mike, what about you? Do you have a formative experience or a case that that really stayed with you stuck in your Craw, or, or drives your perception? Thanks.
Michael Henley 13:54
I was at a large law firm. And as we're working on we the list pendants was we moved to expunge it, and that was denied, and the supervisor, what's my supervising attorneys and so I think there's a basis for an appellate writ. And the attorney looked at me like I was crazy and said, there's only a 5% chance you're out of your mind. And I know, I know, you all are busy, but let me take a stab at it. And I did. I did all the ride and there was actually no revisions. Lo and behold, in a month, they issued an alternate order show cause on supplemental briefing, I got to argue it. And we completely reversed that. And the expungement motion was now granted and the list pendants was expunged. And that then led to a settlement between the parties. The case on the other side was against Bank of America. And when I think I learned from that is don't ever give up. If you're really firmly convinced that there is a basis for you need to be a bulldog and take that step to the client.
Tim Kowal 14:56
Yeah, you have to want to defy the odds because As on on certain kinds of actions in the Court of Appeal, especially repetitions, the odds are always against you, even when, when your case is righteous. So if you just were to look at the odds, you would never take the shot, but you took it. And does that make you an optimist in your approach to the law?
Michael Henley 15:14
I am an optimist. I mean, I will say that I've been very lucky in terms of most of the attorneys that I have opposite to or CO counsel have totally been professional, although I will say that they're more tendency among the really, really to do with the attorney to be a little bit abrasive and hard charging. And I think our profession, to be honest, depends on professional courtesy. And communication doesn't mean that you can't vigorously represent clients. But in my view, there's no reason not to grant extensions to people, unless there's some precedent emergency, you should do. That reference to someone saying, I'm on a vacation, I'm having another child, whatever those situations are.
Tim Kowal 16:03
All right. Let's talk about California Attorney fees. Now, whenever I get an attorney fee motion or or I am setting out to prepare an attorney fee motion. I'm always reminded what a mess our attorney fee regime appears to me to be. It always just seems so complicated. So many ins and outs in your opinion, after writing writing the California appellate the California attorney fee blog for what are we on 14 years now? In your view? Is California's attorney fee regime well organized? Or is it is it complicated? Is it is it overly complicated?
Marc Alexander 16:37
I would I would mention one thing, which is that, as Mike pointed out, we have sidebar categories on our blog. I counted them up this morning, we have approximately 90 sidebar categories related to attorneys fees, and I
Tim Kowal 16:54
999 0990.
Marc Alexander 16:58
Okay, less than 100 more than 85. And I think that that reflects that. attorneys fees are really important to both losers and winners, and they can invest a lot of time into the issues and explore every nook and cranny of the law, the attorneys fees. And that was the basis for us being able to create a blog on the subject of attorneys fees. I think I also agree with Mike that substantively, the law relating to attorneys fees is is pretty solid in California.
Michael Henley 17:36
My answer would be that it is it is a little bit as convoluted as attorney fees in terms of presenting and oppose and is really a niche, kind of boutique art practice. To be honest, there's two parts of it, you got to determine if there's a basis for fee shifting, and then you're going to have to address the mouth that you're going to claim. Those are your two basic questions, right? On the substantive law with there being 90, you know, tabs on our homepage shows you that you have to delve in early on and determine if there's the entitlement basis. So what are those common common ones? So code 1770, which deals with contractual fields, P clauses, whether they're going to be interpreted as mutual or bilateral in nature, we have various wage our fee high employment, you have consumer statutes like lemon law, you have HLA Davis Stirling shifting, I mean, we can go on and on. But those are anti slap motions. So you know, we could go on and on, there are a lot of areas in a daunting task for practitioner on either side is to go to get into the law, the QI entitlement in your specific area, then you get to the second part, which is the amount of feature requests. And I'll have to tell you, that's an art form. an unsuccessful presentation is where you do a two or three paragraph death, you don't describe for the judge remind the judge who by the way, you're one of many trains in the station and the number of cases that speed to through on a given day. Who knows that who remembers but just indicate I prevail, here's a bunch of bills, or I don't even keep bills. Here's what I want. You have to have some specificity and remind the judge and tell him the amount that you want. And sometimes you want to reduce voluntarily that amount so that you give the judge options. I mean, judges are politicians, but once they have to slam, they usually try to steer a middle course or a course that doesn't necessarily, you know, give one side a complete 100% win and the other side 100% law now doesn't mean if the facts of the case require it, because they won't do it. But I find if you can give a judge options on fees, that helps you out because kind of reversing backward. There's a lot of appellate law that indicates that see motions. The first and essential aspect of it is attorney credibility. They are going to look at the submissions from both sides and judge are these things. First of all, are they being straight with me that there's a fee shifting basis? And then on a mound? They're going to look at things such as well? Did they put contemporaneous billing? And then what does that show me? Is there duplication, where they're making entries where they're bought billing entries, if the judge determines that a fee request is inflated, it's clear under California law, the trial judges have a huge amount of discretion and guess what they can do, they can deny it completely, or they can severely chopping. And there's a great case I would say, anyone either making or opposing tea should do. It's called the Christian research versus owl nor case that was written by Justice Aronson, who recently retired and is now in neutral. And it just has great language indicating that C motions are attorney credibility motions, and that if the credibility of the attorney is basically hacked in front of the trial court, it's going to be a hard thing to resuscitate it on appeal. Right. And they generally are going to listen carefully to what a trial is. Because in this era of fee entitlement, when you go up on appeal, if you think that judges results on a team motion was wrong, there's two issues, like I said, the entitlement that's usually reviewed de novo because it's generally a legal issue of law. As far as amount. It's done under the abuse of discretion standard.
Jeff Lewis 22:02
Yeah. And that's a daunting, a daunting standard. Mike, let me ask you, I don't want to cut you off. But just to make this little interactive, I've never understood why people do such short motions for attorneys fees without laying the foundation of what happened, because nine times out of 10, when you're making a fee motion, you're going to get fees for fees, meaning the time spent on a fee motion. So spend the time to tell the story and remind the judge who may not be excited to see your motion about what happened. And I just I don't understand it. Why do you think people sometimes take shortcuts? It just do we one here's our bills, pass our money to style motion,
Michael Henley 22:36
not doing very many emotions before standing the process, because one of the things that you hear from trial judges and appellate judges, Mark and I did a seminar with rich fibrils, who again and retiring from the bench at the end of this year. And he sat there and said one of the greatest thing which is on fee motions provide your judge and intelligence, a roadmap. All right. If you just put a slapdash motion together, you know, three pages on a memorandum and one page declaration, you're not providing the roadmap that most of these judges wants.
Marc Alexander 23:14
Judges don't like to hear attorneys fees motions, because they require going through a lot of minutia. And that's why the roadmap is so important because the judge wants to be helped by the attorneys. One other thing that is very helpful in connection with that is testimony from an expert. Now, the expert can opine about the law and that may be more useful simply for informing the attorney since the court is going to make the legal call. But there are two areas where the experts testimony can be really helpful with a fee motion. One is in testifying about the reasonable rate that attorneys can obtain for certain work at a certain level with a certain judicial locality. And second, the expert can be really helpful for auditing invoices, and an expert declaration can provide the roadmap that will really help the judge
Tim Kowal 24:23
know is there a is there a pitfall or a line that could be crossed in in providing expert declarations where at some point, you have the expert could be argued to simply be opining on what the law is. Does that issue ever come up? Is that an appropriate objection to to an expert opining on entitlement to fees or your Are you only talking about the reasonableness or amount of the fees but does that still is that still susceptible to an objection that this is an expert opinion on a legal issue?
Michael Henley 24:54
So I can help you out. I do do the expert assignments. I do select them Wait, because sometimes I can tell the person up front, after they send me some information, I can't help you. But I will tell you on my declarations, I try to provide the roadmap. Now I will discuss the law but make it very clear that it's simply giving the compass that the judge looks at it from I'm not telling him what the law is. It's just here's my understanding so that you have a compass, that most of my opinions are going to go to the amount that's requested, either being reasonable, or that there needs to be adjust, etc. Yeah,
Jeff Lewis 25:37
you know, I do this expert work, too. And for me, the test is always can can the expert offer or is the expert offering something that the lawyer writing the brief can't in terms of experience and gray hair and looking at as many cases as you guys have? I can't tell you how many times I've seen expert declarations misused were just an extension of the brief arguing points of law. It's really frustrating to read those
Michael Henley 25:59
i To your point, I never sit there and discuss whether or not there's the entitlement, basically make it very clear. I mean, we're experts can be tremendously helpful or issues like hourly rate, you know, what's reasonable, right, and we're billings are provided you actually do you do see audits? And what you try to do is to show where there's duplication, vagueness, excessive and block filling those, right.
Tim Kowal 26:27
When you're, when you're providing your roadmap of the amount that that you ought to be entitled to? Do you find that judges appreciate? Which approach? Is it a narrative of here's what the case of about it was about? And here's all the work I did. And here's why it was so great, or, or is a chart kind of a task by task analysis better? Or is there a third option?
Michael Henley 26:48
You know, to answer the first, I think you only show your qualifications and what you've done in the past to show that you're qualified as an expert, I don't think that that's the be all and end all of the deal, I think you then have to show specificity. So you have to either do and I do a line by line on it. And then what I do is I break out by categories. And then I explained, I cherry picked some glowing examples that I think the judge would relate to in terms of either one, the fees were justified because there were efficiencies or why the CD should be reduced, because there was duplication, I'll take the number of hours that was spent on a motion to compel and envoy for large firms he sent, I'd see two and 300 hours. And you know, you basically say, Look, this motion should have been no more than 100 hours being generous. And judges, they'll usually remember if you tell talk to them a little bit about what that motion was about. They're receptive, and they will pay attention. Because what you've done is you've done the audit for them, they don't have to sit there and go through 110 pages of bills. So to the extent that they think you're credible, and I've provided the roadmap, I will guarantee you that some of my opinions have been actually accepted for reductions. Penny for Penny because they like my my analytical code. Most of the time, it's somewhere either in between, or I usually get it a little bit more on the size of the client to retain.
Tim Kowal 28:20
What about how do you go about evidencing the the amount to which you're entitled to your client is entitled, do you provide the bills? Or do you instead provide attorney declarations describing what was done? Well, the
Michael Henley 28:34
law in California is buildings are not required. You can attach you can supply attorney declarations best practice is thing is to provide attorney because it is specificity. It gives the judge a good feel for the amount of work might to the extent your tax on invoices that might trigger a memory. Oh, wow. I remember those folks. Boy, this was fought tooth and nail. Right. So that's the case, the opposite when you're opposing that usually go with approach, right? Because in large firms, you have a team approach to things. So you have multiple partners and associates and what you find a show. A lot of times there were too many cooks in the kitchen. There's been an issue
Marc Alexander 29:19
with producing bills in California and the issue is how much can you redact and what are the consequences of redacting from the attorneys fees bills when you're making an attorney's fees motion and I think that you can redact but then if you don't have a clear basis for recovering fees, you may lose some of the fees that you're asking for. If you've redacted the basis for those fees. You know, but you could have you could have a situation where you don't want to disclose information in your bills.
Marc Alexander 30:00
And then you have that issue. Do I redact that portion of the bill or don't I? How much is at stake?
Michael Henley 30:07
I actually more of a fan of the less the better. And I'll tell you why. Most of the time my case has been resolved on the merits. So why are you redacting legal research on statute of limitations or statute of frauds when the issue has already been resolved? And maybe it was incorrectly resolved. But still, I mean, there's like, There's no hiding the ball. There's no mystery of what the issues
Tim Kowal 30:32
are. When you say the less the better. You're talking about less redactions, the better. So
Michael Henley 30:36
unless you're dealing with something like a fifth Fifth Amendment criminal issue, or crime fraud, privilege, or real substantive privileges, I can understand that. But I would sit there and say I've seen I've seen billings before. They're they're redacted 90%. So it's almost impossible to determine the just justify some of the work that was done. Now. Sometimes the trial judge can tell that in, because there's a lot of law in California that the trial judge is kind of the best arbitrator because he actually saw or is presumed to have seen the work of the attorneys of all I like lesser redactions than more.
Tim Kowal 31:17
And the judges want to see a task by task or at least a category category by category breakdown. The attorney spent this many hours on, on on the pleadings and pleading motions, this many hours on Discovery this many hours on the motion for summary judgment and this many hours for trial. Is that the way to go about it.
Michael Henley 31:35
I think it helps to have kind of a categorical approach. So you, you, you summarize the amount of time that was spent on kind of the major clusters of things, I certainly think that's helpful. Okay, so
Tim Kowal 31:49
we talked about some of some best practices for the parties filing the attorney fee motions, what about on the opposition side? What are some best practices for opposing maybe an overreaching fee motion,
Marc Alexander 32:02
I would just make one comment, which is, to a surprising extent, attorneys may not have formerly analyzed the first issue of entitlement. Now, entitlement, if there's no entitlement to fees, that doesn't simply reduce fees, it can eliminate a basis for fees. And sometimes attorneys have entirely missed the entitlement issue. But that's the threshold issue.
Michael Henley 32:30
And the defense for sure has to do real good research on the title, because obviously, entitlement fees, we don't get to the sound, but focus in on the amount, there are certain things you really have to present, the success in opposing a fee motion is it was overloaded, right? If the amount of time for the complexity or what was at stake in the case was overloaded. And planners can sometimes overcome that. On it by a couple of things we can already well, the other side really, you know, was contentious, and we had to be what they were putting forward, or two, sometimes they can just by talking to the other attorney to get an idea of what they spent, well, they spent equally, or about the same amount and same amount of tasks, that's a pretty good indication of what a reasonable fee award should be. But what you look for, in large cases, you probably are going to want to engage a fee expert, what you look for is, in essence, are they presenting something reasonable with credibility to the judge, and you're gonna look at there hopefully, most cases like get do have extensive billing. And the reason I believe that's the case is most of the cases are asking for pretty substantial fees. And I think they understand that a judge is going to want to see the detail. But you really it's almost an exercise when we get into what firms should be doing in terms of good billing practices. So it's almost a tutorial on what I say at law firm, lawyer management, right? Look, triple lock billing is cheap. People continue to do it. Big firms are the toilet.
Tim Kowal 34:12
Do you see courts clamping down on that enough? Or too little?
Michael Henley 34:16
I think courts are just about right. I think that, you know, I would tell you that they reduce for plot billing somewhere in the 25 to 35%. I mean, there was one unpublished appellate case for the judge reduced to 85%. And they do have discretion with block billing to deny it entirely. I don't usually find that that happens because the judge is sitting there. I think that's just a little too far. I just think judges probably clamp down on it pretty well.
Tim Kowal 34:49
You mentioned the Christian Research Institute case that suggested that trial judges may deny a fee request in its entirety if the request is is too overreaching. I don't know that I have seen Have a trial judge follow that suggestion. Have you
Michael Henley 35:03
thought Christian research was an interesting one because it did not. They denied 90% of the fees. So it was pretty close to a clear thing. But however, Mark can discuss an interesting case called Martinez versus O'Hara, and it was published, not for the E result, but for something interesting. So why don't I let Mark talk a little bit about the Martinez case? That one will answer your question on what happened with the fees?
Marc Alexander 35:31
Yes, the unpublished part of the case, which Mike and I were most interested in, was about attorney's fees. And we didn't try the case. In the court below. We handled the appeal and the plaintiff's attorney after a jury trial that lasted over for at least five days tained, an award of $8,080. He had originally asked the jury for an award of half a million dollars. And then he made a fee motion asking for I think $146,000 and Commissioner, then Commissioner Carmen Lu AG, denied the request in its entirety. And she gave a number of different reasons, which are almost additive. First of all, she relied on a case called Chavez versus City of Los Angeles. And that was a fee hoc case in which the plaintiff asked for $871,000 in fees, but obtained an award of only $11,500. And in the Chavez case, which was earlier, that court denied the request in its entirety. That said the test was the request was bloated, it was over litigated the case could have been brought in limited jurisdiction, because the award was significantly under $25,000. The case didn't really benefit the public much it was for the benefit of the individual plaintiff Chavez. And those considerations were also the considerations in the Chava. In the Martinez vs. O'Hara case that we handled in that case, they obtained an award of $8,080 at trial, and the judge thought that it was a modest success that the case had been over litigated and not very successful, and the amount that was obtained was an amount well within the limited jurisdiction of the court. But on top of all of that the council's billing records, in the opinion of the court were very unreliable, because there were instances in which he had built 15 hours a day more than once. And I think in one instance, he may have built 25 hours in a day, and all of that, but that the billing records didn't convince the judge also the billing records had been reconstructed after the fact they were not contemporaneous. So on the basis of that, of all those different factors, the judge entirely denied the attorneys fees that went up to the Court of Appeal. In the fourth district Division Three justice FiBL wrote the opinion and he affirmed the decision below the published part of the opinion had to do with some of the language that the opposing attorney have used in his briefing and then his appeals he referred to the trial judges sucky bus stick, which is pretty much a non existent term but means a female mythical female she demon, and he called her order disgraceful. And he said that the opinion was created reverse peristalsis which I guess was his way of saying that it made him want to throw up and the Court of Appeal did did not like that and wondered why one would ever put words like that in an appeal, nor nor did the
Jeff Lewis 39:33
State Bar court I recall that lawyer was suspended briefly he went up and challenged it and I think last month there was an update on that case saying by merely calling that judge a name suck cubistic that alone was not a basis for discipline interesting, but some of the other things he said suggesting that this trial judge had intentionally not applied the law and other disrespectful things said in the in the Notice of Appeal were found to be a basis of discipline. fascinating case.
Marc Alexander 40:00
That's right. You've got it exactly right, Jeff. And the fact is that we as attorneys have very broad first amendment rights when we advocate and that includes the rights that we would have if we were sued in a defamation lawsuits so that if we use language that expresses an opinion, rather than a fact, hard to sanction the attorney or convict someone in a defamation case, if if we state something that's true, and we can't be sanctioned, but even so we ought to exercise common sense, even if it doesn't mean that the words we lose, we use necessarily result in discipline, we still need to exercise common sense. And especially if that appeal level, because of my experience, and I know it spikes experiences that the justices, and that certainly includes our local court, which is excellent. They're not real impressed by over the top language and an appeal. In fact, it's turned off.
Tim Kowal 41:08
Yeah, adjectives are never going to win your argument for you
Michael Henley 41:11
know, maybe I could step in and answer your argument on denials. It's interesting, because the commissioner actually testified in the State Bar proceeding. And there's a summary of her testimony by the state barge. And she sat there and said, this was the only key motion and she would handle several in which she totally denied. So then shows you something about, in my view, you know, really a faulty presentation by the person wanting to attend See, last year, I think one of the interesting cases is called Guillory versus hill that again, was out of our local court of appeals. And what happened there is it was in 1988, civil rights case. And after a long trial, only a little over $5,000 was obtained. Two sets of attorneys then put into see requests for $3.8 million, right full of over delegation, duplication that one of the attorneys and stated the exercise billing judgment. Well guess what one of the entries in there that really destroyed his credibility said this email, phone call prepare trial crap, go back to the printer to grab trial crap. trial judge found that cringe worthy. And based on that, and some other things denied entirely the be request went up. And again, rich, Aaron, someone who's on the Court of Appeal sustained the result
Marc Alexander 42:48
that one of the lessons that I draw from this is that there are a lot of factors that judges take into consideration when they will on fee motions. That makes presentation. Very important. Because the judges, if they don't like a fee motion can find many different ways to nick the fees and provide a fee haircut. And in federal court, if the judge gives a haircut of greater than 10%. The judge is now supposed to explain why that was done, at least in a civil rights context. But I you know, I routinely, we see fee motions where the court grants fees, but the attorneys especially in state court, end up with fee haircuts, sometimes very substantial ones.
Tim Kowal 43:45
Yeah, let's you mentioned we've discussed some great tips for this for the second step of the the fee motion, which is to substantiate the amount that you're that you are asking and Paramount is to protect your own credibility as the attorney don't oversell what you've done. Don't try to oversell the efforts don't don't and don't just attach a ream of billing statements and leave the judge to interpret what the case was about and what was done what what was needed, provide declarations of the attorney of the associates who worked on the case, and maybe even consider bringing on an expert to talk about the reasonableness of these fees. I want to back up just for a minute, the first step of the fee motion, which is the entitlement and when we lead off, I mentioned how I thought that that the statutory rubric for determining fees was often very difficult. And the case law sometimes is a little bit vague on these questions. I remember just share an anecdote of a case I was working on a few years ago where we were opposing a fee motion. And I remember there being an issue over civil code 1717 And the reciprocity involved. And we noted that in the motion, they were actually they actually under evaluated how much they were entitled to because there was a an nonreciprocal there was a limited fee provision in the lease agreement that only provided for fees for eviction related activities. But this was our case was broader than that. But they didn't seek fees beyond the eviction activity. And we thought, oh, gosh, we want to be careful. We don't want to misrepresent anything to the court. But we don't want to tip them off, that they could be asking for more than they're actually asking for. And I thought that was just kind of it turns out that they they never got wise to it never had never really utilize the Full Reciprocity, reciprocity aspect of 1717. So I wanted to ask you, if you could wave a magic wand and change anything about maybe 1717, specifically, or or anything else about the attorney fee, statutory regime, what would it be to make it simpler and and also still achieve the purposes, which is to, you know, to we start from the American rule that each party bears their own attorney fees, except in certain cases, but how do we make it so that we can it's a little bit easier to determine when the party is entitled to attorneys fees in a case?
Michael Henley 46:00
Well, you're you're raising an issue, that's very tough, because as you know, attorneys T shirts are scattered and throughout civil code code, civil procedure, sometimes they're in federal, one of the things that you could try to do is to put like an attorney's fees section together, you know, a new amendment to the Code of Civil Procedure. I don't think the legislature is kind of to it, just because it's a daunting task. I think one of the things that could be helpful is much like there's at least some guidance on how you format summary judgment adjudication motions, the opposition and the evidence that might be helpful if the Judicial Council tried to give a little bit lash in terms of what an attorney fee motion should look like, what the supporting papers should be, and what the opposition should be, because when you're opposing it, there is one case, MLA, that makes it very clear when you're opposing, your objections have to be specific. And, you know, I see a lot of times opposition's that, again, are little more than 10 pages and brands saying, Oh, my goodness, goodness, look how large that just can't be. And General, I want to put some specific objections and reasons for why it's outrageous, you probably want to lose that type of rhetoric.
Tim Kowal 47:23
Okay, I have two more questions. The first is maybe could you tell our listeners, a couple of the most important attorney fee cases that have come out of the courts of appeal or the or the Supreme Court in the last couple of years that our listeners need to be aware of?
Michael Henley 47:36
First one that comes to my mind is the Taylor case, which came authored by Justice Riley. And basically, et K stands for the proposition that constructed reconstructed buildings aren't very credible, and that judges have a lot of leeway to not pay attention, because they are not the best evidence in terms of reasonableness of time, because they're basically guesstimates. I mean, sometimes the weakest sign is in a prolonged case. I've seen reconstructive time for seven or 10 years past and even worse, in one case, they had sought feed and get put under penalty of perjury to time and then years later, in a trial. They were trying to add entries seven years later to inflate their deal. Their request. It's it's it's not that happen. The second case, actually, it's a conflict in the My case out of the Riverside court. And this has to do I think it applies both to C motion and when you have to claim attorney seats at trial. And it basically holds that the client can actually authenticate the fee billing saying I paid them. So hence, it's an inference that they were reasonable. That's in conflict with a Santa Ana court of appeal that was authored by Justice FiBL, who said no way. How's the client going to know what's reasonable in terms of either work efforts or hourly rates? Believe it or not, that slip has not been resolved, the Supreme Court did not take my case. And I've seen this issue arising time and time again, and seeing motions and trials where you have to put on evidence of attorneys fees and damages. That surprises
Tim Kowal 49:23
me. Do you know if any case of cases that follow that first case, you mentioned it was out of the Riverside court, the court of appeal? That's the
Michael Henley 49:30
I have not I do not know anyone has followed that. I do it on the cases. But
Marc Alexander 49:36
I do think that there's a lesson though, that we can draw from the fact that reconstructive bills lack credibility, and that is that we can do more within law firms to train attorneys how to prepare their timesheets, it's a small thing, but it's additive. They need to know that they need to Say things that they're doing with some specificity. They need to know that they shouldn't be block billing, they need to know how to separate out their tasks, they should, they should be somewhat careful about the time increments in which they bill. If I look at a bill and every thing that is billed as an increment of half an hour, or even a quarter of an hour, the credibility of the biller may be in question. So, you know, there are just a lot of things that we can do to help keep people in our law firms bill more accurately. And we should probably spend a little bit of time auditing the bill of a young attorney who works with us to make sure that they're doing it properly. We also know that a lot of attorney that a lot of insurance firms do not like to bill for certain expenses, like conversations among attorneys, and all of those things are additive and can improve the bill in the likelihood that the bill will be treated as credible by a judge and the likelihood that the amount can be collected.
Tim Kowal 51:11
Okay. And here's my last question, what's the most ridiculous fee award you've ever seen, awarded or upheld? And what sticks in my sticks out in my head is I've heard reports of and I know, I don't want to get crosswise with Jeff, because this is he does a lot of anti slap work. But please, please
Jeff Lewis 51:28
don't mention Jeff Lewis, please don't mention Jeff Lewis, go ahead.
Tim Kowal 51:32
But in a lot of anti slap awards get up sometimes in close to half a million dollars. And I've I've heard those justified along the along the lines of well, that's just how big firms do it because they'll they'll have a lower associate, right, the draft and it gets passed along to other senior associates and depart partners, and everyone puts their fingers on it, and everyone wants to bill for it. And suddenly you're up in six figure land approaching half a million dollars. And some judges are seem to be copacetic with that and say, well, that's just you know, you don't understand big firms just like money. You know, they're not like you and me, they really like money. So we have to award award them for for touching the file. I wonder what what your reaction is to that? Do you see judges clamped down on that ever? Or is this attitude of of indulging some of these big firm ideas to be pervasive?
Michael Henley 52:19
That's a difficult one to answer. I mean, I will tell you that I think sometimes judges and arbitrators are enamored with big firms. So it's it's a tough favoritism to overcome. But I do believe that, in the end, we're talking about how it has to be reasonable. Most judges in the end also apply as I call it a proportionality analysis. And what they do look at we looked at you the amount of the settlement, or the amount of the results, and even with large firms, they're likely to scale back based on that factor that is just not right, that they should be awarded for a fairly small award or something that should have been resolved early. On the mitogen is also focused on those issues. I think a good defense proposition is to indicate what was done is reasonable efforts were made to settle early on and avoid these fees. And instead, three years later, the settlement was fairly teeming or could have been negotiated or was within the range of the potential request, I find the judges shonali will take that into account. And also, let's say your handling fee request, I think it's not a bad tip from the past to try to negotiate a resolution and put those things in the deck. And then I couldn't be subject to Well, that was a settlement discussion, and it's not fair. But I generally find a lot of judges are interested in knowing that progress between counsel to try to get injured.
Jeff Lewis 53:56
Yeah, that's a that's a great tip on anti slap motions. I file about one a month and before I file my fee motion after winning an anti slap, I always say here's what my fees are. Here's what my fees are going to be if I have to file a fee motion, you want to pay this or you want to pay that and I attach that a letter to my declaration it's never come back to burn me so far. Knock on wood.
Michael Henley 54:15
Well answer tennis was one of them that sticks in my mind was a homeowner association homeowner dispute in West LA and seriously 13,000 on the chimney issues. More was obtained, and I believe in fees were awarded, by the way profit or dissent from the judge who basically said This is outrageous that they should have and this should have been a one day arbitration instead, it became a litigation train wreck that produced the amount of fees so that's up there in terms of one of those decisions and also the reaction by the defendant judge
Marc Alexander 54:55
the ridiculous fee case as well. also make me understand that there are some fundamental unfairness in our legal attorneys fees system that I don't think we can solve today. For example, in a typical breach of contract case, if you have an in pro per litigant, that improper litigant is never going to get any attorneys fees, because the improper litigant does not have an attorney representing them. A basic unfairness. On the other hand, if there is a large firm attorney who's been engaged to litigate against that in pro per litigant than the improper litigant could get hit with 1000s and 1000s of attorneys fees after losing the case. So there, you know, there's some basic inequities, and I don't see how we're going to solve those today.
Michael Henley 55:57
Yeah, can I pitch him on maybe a last tip for everyone? Because I mentioned this, we hadn't really developed it, I indicated that options are sometimes good. So for like plaintiffs, you know, if you gave voluntary discounts to the client, show what those totals show that you use, you did exercise filling judgment, in a case where you won, but only on certain counts, but only certain claims were compensable for peace, give a thought to doing an abortion, or if you had limited success, think about reducing your fees based on the limited success. Okay, on the defense side, give the judge some option. Okay, I had a case and which I won't bore you with, in essence by law, so representing the seller and a non disclosure residential case, I brought a new trial motion in it was granted, we're gonna stand back. And the trial was about four weeks long. Other side approach, we want to do binding arbitration, we got a good candidate to do that. I said, fine. So and four days, we did what it took four weeks to trial. And guess what, I dispense them all under 1770. And I was going to be entitled to see, whenever I thought about this, I could ask for all my fees through trial and through the arbitration. But I thought, you know, the judge might be disturbed about this, because he's gonna think that maybe not all the trial were was compensable and was not used in the arbitration. So I gave him the top dollar. And then I gave him a much scale that lower option. Yes, but he gave me every penny of the lower option, number of years later array. So when he goes, I have to say that I really appreciate that. Remember that motion? Because you thought like a judge with a judge who would be bothered by that issue. I need every penny of your option that was more reasonable and
Tim Kowal 57:56
good lesson. Yeah. Yeah. Well, with that tip, I think we're out of time for today, Mike and Mark, authors of the cowl attorneys fees blog, Jeff, and I want to thank you for sharing your thoughts with us today on on our podcast about the very important issue of putting together a credible, reasonable motion for attorneys fees, how to oppose and overreaching motion for attorneys fees, and Mike and Mark have this excellent PowerPoint presentation they sent us with their permission, I will we'll put those in the show notes. It's an excellent template and in sample roadmap for how attorneys can go through and think about preparing an effective motion for attorneys fees and how they might take the the hammer and tongs to to an overreaching motion. So I think that wraps us up for this episode. Jeff.
Jeff Lewis 58:41
Right. If you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 58:52
See you next time. Thanks.
Marc Alexander 58:53
Thanks for the opportunity to talk about attorneys fees.
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Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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Can you dismiss your lawsuit while it’s on appeal? No. That is the surprising holding of Curtin Maritime Corp. v. Pacific Dredge & Const. (D4d1 Mar. 22, 2022) no. -- Cal.Rptr.3d ---- 2022 WL 841760. The plaintiff had successfully opposed the defendant’s anti-SLAPP motion, and the defendant appealed the order denying its 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.
Plaintiff sued under the Unfair Competition Law and the Jones Act about whether the defendant’s sea vessel was U.S.-built. The defendant filed an anti-SLAPP motion. The trial court agreed the claims arose from protected activity (filing an application for coastwise endorsement with the Coast Guard), but found the plaintiff had established minimal merit for its claims. The defendant appealed.
While the appeal was still pending, the plaintiff dismissed its complaint without prejudice. The plaintiff then filed a motion to dismiss the appeal as moot.
First, the unsurprising part of the opinion held that, no, dismissing the complaint does not moot the defendant’s anti-SLAPP motion, or the appeal of an order denying the anti-SLAPP motion. A defendant who files a successful anti-SLAPP motion is entitled to fees, so the defendant here was entitled that pursue that remedy, including through appeal: "This court can grant effective relief because our reversal of the denial of Pacific's motion to strike the complaint entitles it to an award of attorney fees and costs under section 425.16, subdivision (c).”
So the plaintiff remains exposed to the risk of anti-SLAPP attorney fees. Even though the plaintiff defeated the SLAPP motion in the trial court, unless the order is affirmed on appeal the plaintiff is not out of the woods yet. Dismissing the complaint does not change that.
The surprising holding of Curtin Maritime is that, once an appeal has been filed, the appellate stay under Code of Civil Procedure section 916 prevents the plaintiff from dismissing the lawsuit.
This is contrary to the general rule that a plaintiff may voluntarily dismiss the complaint with or without prejudice upon request to the court clerk, prior to trial. (§ 581, subds. (b) & (c).) Here is how the court explains the exception:
“Once a notice of appeal has been filed in the trial court, however, section 916 provides for an automatic stay of trial court proceedings "upon the matters embraced" in or "affected" by the appeal. Because the trial court proceedings were stayed when Pacific filed its notice of appeal, the trial court lacked jurisdiction to dismiss the case thereafter.” (Citing Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 188-189 [trial court had no jurisdiction to proceed with trial and enter judgment after appeal filed from order denying anti-SLAPP motion to strike].)
The court concluded: “Here, dismissing the case would impact the effectiveness of [defendant] Pacific's appeal, since it would foreclose the opportunity to recover attorney fees and costs as the prevailing party under section 425.16 upon reversal of the trial court's order denying Pacific's motion.”
Comment: That quote is not an accurate statement of the law. “A defendant has the right to seek costs after dismissal of the complaint, and attorney fees recoverable under statutory authorization are deemed an element of costs.” (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1776.)
Prof. Shaun Martin agrees this holding “seems fairly revolutionary,” and links to “tons of cases that, in fact, got dismissed while the matter was on appeal.”
But now we have at least one published case that holds a plaintiff may not dismiss pending appeal. And when there’s a conflict — no matter how lopsided — trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”
Tim Kowal 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.
Who needs the Second Amendment? Judge Kozinski once called the constitutional right to bear arms as the “doomsday provision”: that right to which a free citizens resorts when all other rights have failed. But what role does that right have left to play in a hyper power like the U.S.?
Second Amendment attorney Sean Brady, Jeff Lewis, and I discuss some modern examples when other rights have failed, at least temporarily: such as in the wake of Katrina, the L.A. riots, and the George Floyd riots.
Watch the clip here.
This is a clip from episode 26 of the California Appellate Law Podcast. Listen to the full episode here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Trial courts are required to make findings after certain proceedings. So is a court’s failure to make findings reversible error? A few years ago, the California Supreme Court answered: No. (F.P. v. Monier (2017) 3 Cal.5th 1099 [failure to issue statement of decision not reversible per se].) Instead, to be reversible, the trial court’s failure to make findings must prejudice the appellant. (Id.)
But the Fourth District held the opposite in a published opinion in Abdelqader v. Abraham (Mar. 10, 2022 D4d1) --- Cal.Rptr.3d ----. The trial court failed to make required findings, and on that basis, the Court of Appeal reversed. Although the respondent argued the error was harmless, the court disagreed. The court essentially concluded the failure to make findings was a structural defect — the precise argument the Supreme Court rejected in Monier.
In Abdelqader, after husband and wife separated, wife filed a request for a domestic violence restraining order, alleging verbal and physical abuse. Mother obtained a TRO, but then had second thoughts and withdrew the application, declaring she no longer needed protection. Then she decided she was right the first time, and the court found husband had committed domestic violence.
That finding of domestic violence triggered the rebuttable presumption under Family Code section 3044 that an award of joint or sole custody to father is not in the children’s best interests. (Ellis v. Lyons (2016) 2 Cal.App.5th 404, 415.) The section 3044 “presumption is mandatory and the trial court has no discretion in deciding whether to apply it....” (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 661 (Celia S.).)
To rebut the section 3044 presumption, the trial court must make findings that the award of custody is in the child's best interest (§ 3044, subd. (b)(1)), and that the six additional enumerated factors, on balance, support an award of custody. (§ 3044, subd. (b)(2).) If the court determines the presumption has been rebutted, it must state the reasons for its decision in writing or on the record. The statement of reasons must address all of the factors outlined in section 3044, subdivision (b). (§ 3044, subd. (f); Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, 805.)
Despite section 3044(f) requires the trial court make findings on the factors under subdivision (b), the trial court failed to make any findings. The court emphasized that “the statute is explicit that the court must consider the factors set forth in subdivision (b) and, if the court determines that the presumption has been overcome, it must state its reasons in writing or on the record. (§§ 3044, subd. (f)(1).)
Husband argued that, under the doctrine of implied findings, the court must infer the trial court made the required findings. “ ‘Under the doctrine of “implied findings,” when parties waive a statement of decision expressly or by not requesting one in a timely manner, appellate courts reviewing the appealed judgment must presume the trial court made all factual findings necessary to support the [order] for which there is substantial evidence.’ ” (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248.)
But the court refused to apply the doctrine of implied findings: “our independent research has not found any case where an appellate court held that a trial court does not have to comply with the requirements of section 3044 unless a party requests a statement of decision. The reason for this absence is clear. Section 3044 is not triggered by whether a party requests a statement of decision. Further, such a request (or the absence of such a request) does not impact a court's duty to follow section 3044 whatsoever.”
The respondent specifically noted that the appellant had failed to establish the missing findings resulted in any harm. But the court reversed anyway, reiterating that findings under section 3044(f) were mandatory.
Comment: While I strongly agree that litigants deserve reasons for a court’s decision, this analysis is unsatisfying. First, note that it is a fundamental tenet of appellate review that the judgment appealed from is presumed correct, and “‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The requirement of findings under section 3044(f) is not more mandatory than the requirement under Code of Civil Procedure section 632 concerning statements of decision. And the Supreme Court in Monier held that the lack of mandatory findings in the latter case is not automatically reversible: prejudice must be shown. The Abdelqader court furnished no basis to distinguish Monier. In fact, the court did not even mention Monier.
The Upshot: In any custody matter in which the presumption under Family Code section 3044 is triggered, look hard for any missing findings. Under Abdelqader, that defect is reversible per se.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Judge VanDyke recently criticized the 9th Circuit’s practice of granting en banc review in every recent pro-2nd Amendment decision—and denying review of every pro-gun control decision. And he’s right, says 2nd Amendment litigator Sean Brady. Sean talks with Jeff Lewis and me about his recent amicus brief on that very phenomenon, cataloguing 9th Cir. cases that:
🤔 Rely on the Heller dissent rather than the SCOTUS majority’s holding. 🤔 Hold there is no right to concealed carry even when there is no right to open carry, either.
🤔 Effectively hold there is no right to bear arms, only to keep them.
Watch the clip here.
This is a clip from episode 26 of the California Appellate Law Podcast. Listen to the full episode here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Legal commentators were taken aback by Judge VanDyke’s concurring opinion mocking the 9th Circuit’s inevitable en banc review of the majority opinion—also authored by Judge VanDyke. But Second Amendment litigator Sean Brady explains why he thinks Judge VanDyke will be vindicated in his criticism of the 9th Circuit’s trend of late on Second Amendment cases. And Jeff Lewis and I—while disagreeing on the merits of the gun rights question—also agree that satire and a bit of cheek can be valid tools to bring attention to an important issue that might otherwise be ignored.
Watch the clip here.
This is a clip from episode 26 of the California Appellate Law Podcast. Listen to the full episode here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Trial judges have wide latitude over the evidence that comes into the record at trial. The judge might sustain an objection to your smoking gun, or could allow damaging evidence despite your valid objections. These problems may be raised on appeal, but appellate courts give trial judges wide latitude on evidentiary rulings.
But not in M.H. v. C.H. (D5 Mar. 18, 2022 no. F082268) 2022 WL 817842 (nonpub. opn.). In a proceeding for a domestic violence restraining order, the trial court “shall consider the totality of the circumstances” in making its ruling. (Fam. Code, § 6301, subd. (c).) This includes considering “the affidavit or testimony.” (§ 6300, subd. (a).)
In M.H., the trial judge held a hearing and denied the request for a DVRO. But the judge made it clear it was only considering the evidence at the hearing, and not the plaintiff’s affidavits. The judge candidly offered that "Had those [affidavits] come into evidence, the Court in all likelihood would have granted this request.” (The Court of Appeal appreciated this candor: “We commend the trial court for clearly explaining on the record the basis for its decision and the consequences of its determination to limit its evaluation to matters presented at the hearing.”)
The Fifth District Court of Appeal held that the trial court’s refusal to consider declarations or evidence other than offered at the evidentiary hearing “is contrary to law. Application of this erroneous view was a prejudicial abuse of discretion.”
The court also cited published cases holding similarly:
Comment: Note the ambivalent framing of the nature of the trial court’s error: the court frames it as both “legal error,” and as “abuse of discretion.” (At one point in the opinion, the court acknowledges that “conclusions of law are reviewed de novo.”) But ultimately, the court frames the error as an abuse of discretion, because that is how appellate courts are used to handling all evidentiary issues.
While some evidentiary issues certainly are discretionary (Evidence Code section 352 issues, for example, are textbook discretionary calls), many are not. Statements are either hearsay or they are not. And the error here was surely not the product of the court’s discretion. Instead, it was a mistake of law.
At some point, the Supreme Court needs to hold that it is ok to call legally erroneous evidentiary rulings for what they are: legal errors subject to de novo review, not abuses of discretion.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
The appellant in Singh v. Bains (D5 Mar. 10, 2022 no. F082506) 2022 WL 714679 (nonpub. opn.) was in pro per, so don’t read too much into this, but something does not sit right about this memorandum opinion. (A memorandum opinion is a more abbreviated form of opinion when a cause raises “no substantial issues of law or fact.” Cal. Standards of Jud. Admin. 8.1.)
The trial court entered a civil harassment restraining order against Bains. Bains appealed the restraining order. But sometime later (the opinion doesn’t say when), the trial court entered another restraining order against Bains. The second restraining order, the Court of Appeal tells us, contains “no material difference” from the first. Exact same terms. They even expire on the exact same date. (You might be wondering: what, exactly, was the point of the second order, then?)
Noting that Bains did not appeal the second restraining order, the court denied the appeal from the first restraining order as moot: “If we reversed the challenged CHRO, defendant would still be subject to the second CHRO. Therefore, this appeal is moot and should be dismissed.”
As I said, this was an in pro per litigant, and he made some procedural missteps. Specifically, he did not respond to the respondent’s request for judicial notice attaching the second restraining order. He did not even file a reply brief. So he made no rebuttal to the mootness argument.
But here is why the court’s opinion does not sit right with me: Why is the trial court entering duplicate identical restraining orders? What was the point of a second, identical restraining order, other than to spring a procedural trap on the appellant on appeal? And doesn’t the appellate stay under Code of Civil Procedure section 916 render the second identical order void?
And while the court noted the appellant did not file a reply brief, the Court of Appeal had not ruled on the request for judicial notice by the time the reply brief was due. And the court did not hold oral argument, which is normally of right. So the rationale is a little thin that is based on the appellant’s failure to respond.
One more thing: Mootness is almost entirely in the eye of the beholder. Many appeals that seem to me entirely moot nonetheless get a pass from the Court of Appeal. So treating the mootness question here as “raising no substantial issues” struck me as rather doubtful.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Attorney Ryan McCarl, author of Elegant Legal Writing, tells Jeff Lewis and me the top three things lawyers do wrong in their briefs:
(1) Legalese (are you really still using legalese?)
(2) Long sentences with no clear structure or emphasis
(3) Failing to mind the “cognitive load” of your reader.
Watch the clip here.
This is a clip from episode 24 of the California Appellate Law Podcast. Listen to the full episode here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
The appellant in In re Marriage of Critzer (D6 Mar. 11, 2022 no. H047809) 2022 WL 736174 (nonpub. opn.) made not one, not two, but three mistakes in his notice of appeal. And he lost his appeal because of those mistakes. Here is what he did wrong:
The lesson here: Mind the Civil Case Information Statement. If you made any omissions in the notice of appeal, this is your last and best place to correct them.
Had the appellant made fewer than all three of these errors, his appeal may have survived. The court took care to recite the policy that a notice of appeal is to be construed liberally so that appeals are not dismissed for insignificant oversights in the notice of appeal: “ ‘[I]t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’ (Luz v. Lopes (1960) 55 Cal.2d 54, 59; see also rule 8.100(a)(2) [‘notice of appeal must be liberally construed’].) A notice of appeal ‘is sufficient if it identifies the particular judgment or order being appealed.’ (Rule 8.100(a)(2).)” (In re Joshua S. (2007) 41 Cal.4th 261, 272.)”
But, “[t]he rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders.” (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.)”
Because the appellant made all three of these errors, it evinced a “clear intention” he was not appealing from the QDRO orders.
(Note: The court also explained why the appellant’s case was not very attractive on the merits.)
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
When we covered some of the tips and pitfalls of family-law appeals on episode 6 of the California Appellate Law Podcast, it became one of our most popular episodes. So we invited Victoria Fuller, a certified appellate specialist focusing on family law, to join us for another installment.
Walking practitioners through various procedural issues in family-law cases, Victoria discusses with co-hosts Tim Kowal and Jeff Lewis:
Victoria Fuller’s biography and LinkedIn profile.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
Other links:
Victoria Fuller 0:02
appraiser discretion review. You know, they have to affirm even if they would have made a different decision as long as there's a rational basis.
Anouncer 0:11
Welcome to the California pellet podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Jeff Lewis 0:25
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:27
And I'm Tim Kowal Law, California Department of podcasting licensed pending review of my Blockbuster video rental history. The California appellate law podcast is a podcast for trial attorneys and other appellate attorneys. Jeff and I both split our time evenly between trial and appellate courts. And in this podcast, we bring guests and news that might help the attorneys in our audience in their trial practice, as well as inform them on interesting developments in the law and the legal profession.
Jeff Lewis 0:52
Welcome to Episode 27 of the podcast. One of our
Tim Kowal 0:56
most popular episodes. Jeff on this podcast was our overview on Family Law appeals. But since we published that episode on Family Law appeals back in October 2020. We haven't really come back to the subject. A few weeks ago, I saw an article in the Daily Journal with a very apt title, understanding the differences between family law and civil appeals, and the author was Victoria Fuller, and lo and behold, we have Victoria fuller on our show today. Victoria is a certified appellate law specialist. She handles written appeals in both state and federal courts and a wide range of civil practice areas and also family law matters. In addition to her to her practice in appellate courts, Victoria represents clients in appeals from administrative decisions taken to the Superior Court. She also assists attorneys with motions in the trial court such as pre and post judgment proceedings and motions for summary judgment, and class certification. Victoria currently serves on the executive committee of the San Diego appellate in of court, a group of judges and lawyers organized to promote excellence and appellate advocacy. She previously chaired the appellate practice section of the San Diego County Bar Association, and she volunteers for CASA Cornelia Law Center, representing individuals seeking political asylum in appellate proceedings. Welcome to the podcast, Victoria.
Victoria Fuller 2:13
Thank you, Tim, that was very well said,
Tim Kowal 2:15
Well, we we appreciate you joining us like I like I mentioned, you know, we haven't done a family law peels episode. And so we wanted to bring you on to talk about your article. And before we get to that, I want to know if you would tell us a little bit more about your practice, other than what I just read in the intro.
Victoria Fuller 2:32
Sure. Let me start by just saying thank you for inviting me. I'm really happy to be here and to talk about this subject. In terms of my practice. You nailed it based on what you said, I guess I'll just add that really, my practice is almost exclusively appellate, I do handle, you know, substantial motions for trial lawyers, maybe it's a trial brief. In a case that's going to go up on appeal. Maybe it's a summary judgment, motion or class certification, like you mentioned, or an important motion on collateral estoppel, something like that. But other than that, it's exclusively appeals and all different kinds of civil cases and family law cases as well.
Tim Kowal 3:09
When we talked briefly a couple of weeks ago, you had mentioned that, you know, the that the percentage breakdown of your appellate cases that deal with family law matters, fluctuates quite a bit. And you know, sometimes it's all family law appeals. Sometimes you don't have any and usually it's somewhere in the middle. It's about right, is it still right about in the middle these days?
Victoria Fuller 3:28
These days? Funnily enough, I'd say it's 8020 80%. Being family law appeals. I've got more of those on my desk right now than civil appeals. Last year, it was probably 5050. The year before that it was probably 30% Family Law 70% civil so it fluctuates over time.
Jeff Lewis 3:45
Victoria, being an appellate lawyer is super hard representing the appellant with long odds of winning, getting a judgment overturned, and in the context of family law with those daunting standards and review, how do you keep your spirits up with an 80% family law caseload? How do you go to the Court of Appeal and argue a case and keep your keep a smile on your face and enthusiasm when you know, statistically speaking, it doesn't look good?
Victoria Fuller 4:09
Well, the key is, well, there's two keys. One key is when you get a response, appeal it feeling great.
But when he responded, I like that,
yeah, being a respondent is a wonderful place to be. But as an appellant, it's all about really selecting the right appeals and making the right recommendations to the client. Because when it is the deferential abuse of discretion standard, it's just so difficult. So you've really got to look for, you know, specific circumstances in order to recommend that, but there are plenty of cases in which there might be a question of law. You know, right now, I've got some really interesting cases with with questions of law that haven't been resolved. There's no published decision on it. So that's a great way to, you know, to move forward, whether you're the appellant or the respondent. So, so I guess yeah, just just if the abuse of discretion standard is at play, then really only recommend and appeal when it when it actually makes sense.
Tim Kowal 5:03
Tell us a little bit about your work in in the trial court. I know you said that you you're doing exclusively appellate work, do you still do some work in post order post judgment proceedings, and you get involved in the trial court actually set set foot in the trial court room in those kinds of motions that you handle.
Victoria Fuller 5:19
I rarely actually set foot in the trial court. But I do participate heavily in the in the post trial proceedings, definitely. And sometimes even before trial, you know, like it like in the case that I mentioned, but where there's a really interesting question of law, that cases is going to trial and a little bit here. And so I've been involved with trial briefing and that sort of thing, just trying to, you know, understand the case moving forward, frame it do the research on on any unpublished cases that are out there. And then the trial lawyers can can have some insight as to what questions you know, the Court of Appeal might be thinking of when they're actually framing issues in the trial. But that's rare. Most often, I'll come in post trial. And I definitely participate in post trial motions. And I'll and I'll write them absolutely, but usually for the signature of the trial attorney, because they are the attorney of record in the case. So I really work very closely with the trial attorney, and in the statement of decision process to and trying to just look at it from the angle of what can we add in terms of, you know, protecting the clients interests, on appeal, you know, there may be good reasons to file a post trial motion, if there's actually a chance of getting some some decent relief. But on top of that, that might be an opportunity to beef up the record whether factually, or making legal arguments. So maybe strengthening the appellate record there. So so I definitely get involved in those proceedings.
Tim Kowal 6:51
What would you say is the biggest difference in perspective between you as an appellate attorney and the trial attorneys that you work with, in trying to relate your advice from the perspective of an appellate attorney? Do you ever encounter resistance from the trial attorney that oh, you know, I don't think we need to do that, or I don't think the judge is going to go for that argument anyway. So why bother? Do you have any you draw any lessons from your experience in working with trial attorneys in those post trial? proceedings?
Victoria Fuller 7:16
Yeah, definitely. It's a balancing act, you know, we're both trying to do our best to try to to represent the client's interests. And so there are times when, let's say, in the circumstance, when the case is going into trial, and I'm involved, and I'm providing perspective, that I think is going to be really important down the line. You know, at that time, it's the trailer is trying their case. And so I will come in, provide my input and advice, but take the backseat, you know, how they try their cases, really their call, and I don't want to be second guessing. At that time. You know, as things move along. Usually, the relationship is such that, you know, we're not at odds in terms of what kinds of post trial motions to file or what kinds of arguments to make, usually, we can, we can talk that through and find a common ground. The one area that I'll say that I see some resistance sometimes is really, really understanding the standards of review, and even with very, very experienced, accomplished trial lawyers, and probably the biggest one is the substantial evidence standard, and recognizing that, if you're going to pursue an appeal, you've really got to accept the facts as found and believed by the trier of fact, because almost no substantial evidence challenge is going to win. So you've got to be able to tell the story from the perspective, you know, as believed by the trier of fact not conceding anything. But that's kind of a difficult, you know, thing when the trial lawyer has been living with the case breathing with the case, or breathing the case for years and years. So that's difficult, and then really understanding that what a substantial evidence challenge really means that, you know, let's say in an easy car accident case, the plaintiff is the only person that comes in and testifies on the plaintiffs behalf that the defendant caused a car accident. But then, you know, the defendant came in and tested testified otherwise. And then 50 people testified on behalf of the defendant. This substantial evidence rule means that the appellate court has to completely 100% disregard everything that was said on behalf of the defense, and look at whether, you know, what the plaintiff said, is legally sufficient, and most of the times it is. So that's a tough, tough thing to explain sometimes.
Tim Kowal 9:37
Yeah, that's interesting. You say that, that that's the case, even with experienced trial attorneys. And I would imagine it's not it's not a failure to appreciate what the what the standard of review means or what substantial evidence means, but like you say, they've been living with the case so long. And now with these factual findings, the landscape, kind of the underlying factual landscape has changed. You can no longer assume that I can just continue The trier of fact of my view of the facts and then smooth sailing on the law. You have to kind of you have to really pivot after those factual findings have been made. Absolutely. Okay, one one more question. Before we dive into the substance here, all attorneys have some some gripe or another about the legal system. I mean, personally, I don't I'm I'm a very content sort of person. But do you have any gripes about the legal system and or suggestions for how the legal system could be made better? Gosh, that's
Victoria Fuller 10:30
a really a tough one. For me, I, I don't have huge gripes with the legal system. But the only thing I'll say, and it really doesn't relate to our topics today. But it has to do with criminal law. And of course, I don't practice in that arena. But I am on the board of appellate defenders Inc, which is a nonprofit organization that facilitates state funded defense to criminal defendants on appeal. So it just says that they have a right to counsel at trial, they have a right to counsel, on appeal. And in that role I've come across, or the work done by the Innocence Project. And it's having just a purely civil background, no criminal background, it really has surprised me how many cases in which you see a person who was wrongfully convicted, and then on top of that, how long it can take take to fix that, you know, 15 years or 18 years. And that's really, really, really sad to think and how do you fix that? I have no idea. But if there were anything I could fix about our legal system, it
Tim Kowal 11:31
would be that that's, that's interesting. And that is a those are grave concerns. I just I just saw there was a case out of the Supreme Court where there was a, a Batson Wheeler challenge made some two decades after the conviction. And maybe because you can get post conviction discovery into such things apparently, again, like you I don't practice in, in criminal at all. But I find those kinds of issues interesting. And in in civil, I would say, you know, that's crazy. But because of the stakes, obviously I understand why they're those procedures are available that the challenge ultimately did not succeed. But the courts take it seriously, apparently. All right. So we've had a chance to discuss a little bit of the differences between trial and appellate work and how we see those things differently from the eyes of appellate attorneys. Now, let's discuss some of the differences between civil appeals and family law appeals. Victoria, before I asked you about the particulars. Are there any general differences between family and civil appeals? I mean, they both you know, they're their civil appeals, they go to the same court of appeal, the same rules of court apply, but somehow they just feel different, like Jeff was kind of alluding to sometimes you just feel like, you're going to lose if you're the appellant. Why, why is that? What, what accounts for that feeling of dread if you're the appellant in a Family Law appeal?
Victoria Fuller 12:47
Well, that's the standard of review, you know, as we were alluding to before, so many questions that come before a family law judge are judgment calls that are reviewed for an abuse of discretion. And on top of that, Family Court is different than civil court in the sense that family courts have broad discretion to try to do what's fair among the parties. And so the appellate court isn't going to second guess, the family court sense of fairness, you know, as long as there's some rational basis, if you can just connect the dots rationally to the decision. So that's really the biggest, scariest, you know, hurdle and family law appeals. But as I said before, there are instances when you can show an abuse of discretion, not often, but there are and then there are legal questions. And then in terms of just kind of 30,000 foot differences, there are just some things to be aware of in terms of what orders are appealable versus what are not. And as a practitioner, you know, doing both civil appeals and family law appeals, you've got two Bibles, and you always check both you you're looking at, you know, read our civil appeals and writs and then read our family law and double checking everything so. So there are some key differences. And so looking at both writer guides is really important or whatever sources you look.
Tim Kowal 14:05
Yeah, yeah, there's in addition to nine oh, 4.1 with the whatever it is 12 or 15, appealable orders, there's some, you know, 200 different appealable orders under the Family Code. Like someone said, they counted all the family code appealable orders at some appellate conference I went to and I think I think they said 238. I could not tell if they were exaggerating, I would believe it. And so on to some specifics about the differences in family law appeals. You mentioned a few of them in your daily journal article entitled, understanding the difference between family law and civil appeals. And the first one that you discuss is a is the unique post judgment relief that's available under Family Code section 2122. What different kinds of relief are available under that section?
Victoria Fuller 14:53
Yeah, coming from a civil background. That's really a unique statute. So the family code section 2122 Too authorizes a motion to set aside a judgment for a variety of grounds, anywhere from fraud to duress to a party's failure to comply with financial disclosure requirements or inaccuracies in the disclosures. And when really unique aspect of the provision is that even when a judgment is entered based on settlement, so a stipulated or an uncontested judgment, you can still file a motion to set aside the judgment or the stipulated portion of it based on a mistake of law or fact. And the mistake can be unilateral as opposed to mutual.
Tim Kowal 15:38
A unilateral mistake can can result in a in an overturn judgment. It can, it can, but that's yeah, that's That's surprising. I, we get calls with some regularity people wanting to set aside a judgment in the civil context. And while it can be done, I never never would tell them, it's from a unilateral mistake. So good to know that's different in family law appeals. Now you also note in your article that parties may move to set aside a stipulated for Okay, and that's I think that's that's what we were just talking about a unilateral mistake of law or fact. And I wanted to know if your experience or from what you've seen, does this get abused?
Victoria Fuller 16:16
Yeah, I would say that just about anything can be abused, or at least people can try to do it. I haven't seen it myself. But a way to understand it is there's a there's a big difference and what's going on in terms of finality of judgments in family law and in civil cases. And of course, in civil cases, the parties are tasked with proceeding doing all the right discovery that they need to do finding out all the facts and then presenting their case or settling based on those facts, then you've got a 1542 waiver, and you're done. You know, the judgment needs to be final parties can't be coming back trying to to undo it. in family law, though there are two really important differences. And one is the Family Court is obligated to equally divide the community property estate. And then number two, the parties are obligated at the beginning of the case, and then just before trial, to make financial disclosures. And yes, there can be additional discovery and the parties are tasked with, you know, handling discovery in the same manner and under the same statutes, as in civil cases. But the parties have to disclose everything, all the debts, all the assets, so that everybody is on the same playing field, and so that the court can meet its statutory obligation to equally divide the estate. So under those circumstances, you know, there are times when maybe a party hid an asset. And it didn't come out until years later. Or let's say a party entered into a stipulation to value an asset, whether it's a real property or a business, but you know, was under the impression that the stipulation would be used in a certain way. But as it happens is everything went further, it was used in such a way that the division wasn't actually equal. So there can be all kinds of things that come up, that undermine the notion that they are really the obligation that the estate has to be divided equally. And so this statute provides a way for the family court to fix that, even if something is is is later discovered years later.
Tim Kowal 18:26
So this has got to be for you in consulting with the with the family law attorney or the or the client who approached you about I want to take an appeal of this order. This has got to be one of the first things that you tell them, Well, have you considered maybe doing a little bit of digging and seeing if you can establish grounds under family code 2122. To set it aside on the basis of some mistake of law or fact that there was an inaccuracy in the financial disclosures or something withheld in the financial disclosures or some other new fact, how often do do clients and family law attorneys come away from your consultations and say, you know, maybe we take another run at this before we resort to the Court of Appeal?
Victoria Fuller 19:08
Oh, it's definitely an avenue that's pursued, you know, when there's a basis for it. But oftentimes, as with post trial motions and civil cases, oftentimes, you know, the judge has already made the decision. And so as with other post trial motions, or maybe other reasons to bring the motion, whether beefing up the record on appeal, so it may be an area where you can actually get relief, or it may be an area where it's an important step in the process before you pursue an appeal.
Tim Kowal 19:38
Okay. And related to this. You also note in the article that the deadline to bring emotion under Family Code section 2122 Doesn't lapse until years after entry of the judgment. And I wonder what are what are the effects of this rule and, you know, does that get does that get abused or if you here's a specific question, if if you lose the appeal and Then you find more evidence, can you still challenge that judgment even after the the judgment or order has been affirmed on appeal?
Victoria Fuller 20:08
I guess it probably has to be a completely different issue. You know, I suppose in theory, you can have a case where there was one hidden asset that was discovered. And so you pursue all your remedies based on that. And then a year later, you find a whole separate asset. I can't say I've ever seen a case like that. So it's probably unlikely. But this statute does have set timeframes, you know, an example is fraud. But what can draw it out is, is the, the triggering event is the discovery of the fraud.
Tim Kowal 20:38
Okay, so you have a certain number of years, or is it years after the discovery of the fraud?
Victoria Fuller 20:43
I believe fraud is one year after the discovery of the fraud, there are some grounds that carry a two year timeframe, it varies based on the different grounds.
Tim Kowal 20:53
And let's get your opinion on that rule. Is that is that the right rule? Does it lead to too many, too many attempts to challenge the same order? You know, in civil sometimes, you know, the law likes to say that judgments are entitled to repose. It seems like family law orders are entitled to just a little bit less repos under family codes. 2122, do you think that's that the code strikes the right balance?
Victoria Fuller 21:19
I really do to be honest, you know, I suppose the downside is, is that there could be further litigation down the line, and nobody wants that. But by the same token, courts need the flexibility to be able to do what's fair. So if somebody really did hide assets, you need to be able to go back and fix that if if the state wasn't actually equally divided, and one party got a really unfair windfall, you need to be able to fix that. But by the same token, you need to be you need to make an adequate showing. So this is really a mechanism to file a motion to set aside. So you've got to provide, you know, grounds and make a showing that would support that.
Tim Kowal 22:01
Okay, and then and then let's, let's move on to the next subject that you cover. In your article, you noted that motions for reconsideration may be a very effective tool in family courts. Can you elaborate on that? What do you what do you mean by that?
Victoria Fuller 22:17
Yeah, there is authority in family court or family law decisions, saying that when a party has brought a motion for consideration, that doesn't actually satisfy, you know, the requirements, there's no new fact or no new law. It's okay. If that triggers the family court to actually reconsider on its own, an order that the family court has later determined was wrong. And so even when a motion for reconsideration wasn't proper, the court has the ability to reconsider an erroneous order and fix it.
Tim Kowal 22:55
What happens in one of the cases or one of the doctrines we've covered in this podcast on civil appeals is that motions for reconsideration have have some jurisdictional limits, including that after the entry of an appealable order, the trial court loses jurisdiction to reconsider that order. Because at that point, it's final. And your remedy, then would be to file a motion to set aside or to vacate and comply with those timelines or to to appeal it. And and the trial court has LOST jurisdiction over that order. Do you happen to know if the rule is the same in family court? Given that there are so many more orders that may be appealable? In the family court, and yet, motions for reconsideration are are so widely used? I wondered if the rule is different there?
Victoria Fuller 23:46
Well, you can certainly file a motion for reconsideration post order, you know, as long as you're within the statutory timeframe. Post judgment, I think is when is when you can't and I'm not really aware of a distinction here. Okay.
Tim Kowal 24:02
And you mentioned that in your article, that in family law cases, that you can probably talk parties out of pursuing an appeal more often than you recommend moving forward, due in large part to the applicable standard of review. And I talked about that a little bit. I wondered if you could elaborate a little bit more on that. What do you what do you commonly tell your clients or family law attorneys about the the standard of review and whether it dooms the appeal, or whether there might be some ways to chart a course around it?
Victoria Fuller 24:33
Yeah. So you know, I always give every case it's due. And I always, you know, really do my best to try to see if there is an avenue that when you're when when you're looking at the abuse of discretion, standard, the avenues are limited. What you're looking for are situations where the court actually didn't exercise its discretion. The court didn't actually understand the scope of discretion or miss apply law. Those are the three big catchphrases on when you can make a case for an abuse of discretion. And otherwise, the only time you're going to have a real viable appeal is in a very rare, rare rare case, when the order was just so irrational, that no trier of fact could possibly make the same decision. So, so I was explained those catchphrases to the family lawyer and to the client and said, This is what I'm looking for. And if I can't find it, you know, I can tell you that you can pursue an appeal. But the problem is, you're going to very likely find yourself back in the same spot after another year or two, having spent a bunch more money. And it seems to make sense to see if is there some other recourse some future recourse in the family court? You know, is it something that could be modified something like that? Yeah,
Jeff Lewis 25:55
unlike civil cases, you know, family law cases are so messy, there's so moving so many moving parts with kids and money and support and custody and where my kids going to go to school, that I often counseled people don't waste your time with an appeal, wait six months, something will change, some circumstances will change, you'll have a credible argument to get back in front of the judge. And who knows, maybe it'll be a different trial judge and try to get your relief a different way. Because statistically speaking, it's a better Avenue.
Victoria Fuller 26:22
Absolutely. It's always important to consider that
Tim Kowal 26:25
you mentioned in in the cases where you can't find one of those ways to get around the the abuse of discretion standard of review, like you couldn't find that the judge misapplied, you know, apply the wrong standard or failed to consider one of the necessary factors. And you're just you're really, you're just going to be going, you know, hitting your head against that wall of abuse of discretion, and trying to make that high hurdle. Is it ever a factor in your analysis to take a look at who the to the family judge was? And and say, Well, you know, I think this family judge seems to be getting reversed quite a bit more seems to be, you know, not not quite staying within the lines as much as his or her colleagues. Is that ever, ever a part of your analysis? Very, very,
Jeff Lewis 27:10
as a reminder, I was just gonna say, as a reminder, we are recording Victoria,
Victoria Fuller 27:16
in particular, judges, alibis. very ill advised a very, very small part, you know, I've at least heard through the grapevine that there are some, you know, judges names that might be might raise an eyebrow sometimes. But again, it's just going to be based on the merits. So that might be something that the court looks at for a brief moment, but it's not going to make or break. And it's really not going to change the analysis.
Tim Kowal 27:45
Have you ever had a client tell you that they're sure that there's a conspiracy between the judge and the other side? Oh, for
Victoria Fuller 27:53
sure. And I always tell them, I've in all my years of practice, I've never seen that. Yeah, I
Tim Kowal 27:59
want to make sure I wasn't the only one. Okay, let's talk a little bit about let's see, I think I had a question for you about in working on, on these family law appeals. You've challenged the family judges discretion in some of these cases, and as the appellant and then as the respondent, you've defended the judges discretion. Do you think that the appellate deference and family cases is too much? Too little? Just right. What's your what's your opinion on that you think they the the Court of Appeals strike the right balance?
Victoria Fuller 28:30
That's really a tough one, because I think no matter where you strike the balance, somebody loses. You know, I've definitely seen cases, in fact, a recent case that I just looked at, and I had a client who wanted to pursue an appeal based on the valuation of an asset. And I firmly believe that he should have won in the family court, I firmly believe that factually and legally, he was right on, and I am pretty sure that at least some appellate judges, you know, may have ruled in his favor, had they been the family court judge. But the problem is that on abuse of discretion review, you know, they have to affirm even if they would have made a different decision, as long as there's a rational basis. And in his case, there was there was a rational basis to support the order. And so it was sad. It really affected the case. And I and I don't think it was the right result, but I still believe that his chances on appeal were extremely, extremely low. So So yes, you see that, you know, if you were to change the the discretion somehow, then the inequities would, would turn out wrong, on the other hand, or on the other end at times, you know, so it's hard. But one thing I will say is that I've heard multiple justices say that when they were elevated from the Trial Court bench to the appellate bench, they were really surprised at the breadth of discretion, and they actually really didn't even appreciate when they were on the bench
Victoria Fuller 30:00
Just how wide their discretion was? Oh, really? Yeah,
Tim Kowal 30:04
that's a that's, that's surprising. They've they've, you're saying that they found that when they when they were elevated to become an appellate justice, they found themselves being required to give more more leniency than they even realize they had. Okay. Yes. All right. Well, let's move on and talk about interlocutory appeals. And as well as certifying appeals. I wonder if you could describe that process for our listeners?
Victoria Fuller 30:31
Yeah, that's a very unique process that doesn't apply in civil cases, of course, but in in family law cases, when trial has been bifurcated, and there's an issue that's tried first, that has a really big impact on the rest of the case and all the other issues that need to be tried. A good example of that is the enforceability of a premarital agreement that's going to affect you know how all the all the properties is going to be divided, that sort of thing in it, and it may affect support and all sorts of things. When trial is bifurcated in that fashion, there is a way to seek certification for appeal. So it's a two step process. So the losing party can file a motion in the family court asking that the family court certify that there's probable cause to for an immediate appeal. And then if that's granted, the party can file a motion in the Court of Appeal, seeking authorization to appeal the issue.
Tim Kowal 31:32
Are most family law attorneys comfortable with this process? Or do they need to retain an appellate specialist to help them?
Victoria Fuller 31:39
You know, I'm sure it depends on the family law attorney. But most of the time, I would say they're not really the family law attorneys I've worked with aren't like super, super familiar with the process. They know of it, but don't necessarily know the process. And I've and I've worked with extremely experienced very, very good family law attorneys who just thought or assumed because it feels right, that you've got this key issue that's going to be tried first. That's, you know, after the bifurcated phase one trial, that's certainly going to lead to a judgment. That's appealable. Right, you know, and the answer's no, I mean, either you appeal it after the one final judgment at the end of the case or you seek certification
Tim Kowal 32:21
in from what you've seen, in your experience, do family judges play these motions down the middle? Do they? Are they just calling balls and strikes on it? Are they do they kind of put their thumb on the scale against allowing the litigants to take up the order on appeal?
Victoria Fuller 32:35
Oh, I think it very much depends on the judge. You know, some of them are really open minded, and some are really not. So I've seen cases where where there was a lot of money at stake. And and a really interesting question of law, and the judge knew it was going to go up on appeal. And so try the case with that in mind and just accepted that that, that that issue was going to be appealed. And then there's other you know, federal law judges who really don't see that there's a viable appeal there that the decision that was made was correct. And there's no need to to, to basically stop the case now and have that basically, everything go off the rails. So it just depends on the case. And it depends on the judge.
Tim Kowal 33:18
Yeah. Do the judges also consider the logistics of the case? You know, in addition to probable cause? Are they thinking well, yeah, you know, it would be nice to have the Court of Appeals ruling on this, but it's going to delay this case, it's going to drive up the cost and everybody, are those? Are those appropriate factors, or that are the outside factors
Victoria Fuller 33:40
are not factors in the the court rule that governs the process? But I'm sure I'm sure the judges are thinking about that, you know, they need to look at it in terms of is this an issue that's that can lead to a settlement among the parties? Is this an issue that impacts the other issues in the case and that sort of thing? But, you know, I'm sure there any number of factors that the, you know, the judge is the one person has hopefully been presiding over the case from the beginning, maybe not, but should be familiar with it. And so yeah, all of those things can come into play.
Tim Kowal 34:12
What about writ petitions in the court of appeal if you if you're not able to get certification of an interlocutory order in the family court? And you still you really want to get this up? In the Court of Appeal? And guess you could take it up on a writ petition? What are your chances if the Court of Appeal sees that? Well, you you took a run at it with the family judge family judge didn't think it would it warranted review on appeal, does that kind of doom your chances you're already low, you know, slim chances of getting rich review. Do you ever advised a client to take a run at a repetition even after they failed to get certification from the family judge?
Victoria Fuller 34:49
No, I haven't. And and that's tough. You know, a red is even more difficult. It's discretionary. And you've got to show irreparable harm. And, you know, spending money on legal fees. Isn't irreparable harm, so you're going to have to show something else there is going to have to be some compelling reason that would support a read, and you can certainly file it, you know, but but it's not a small investment. And it's really deflating when you put all of these resources into something like that. And three days letter later, you get a one page or one sentence order, saying the petition for writ of mandate has been considered and is denied.
Jeff Lewis 35:25
Yeah, with no explanation, you know, picking up on that thought in the area of writs. You know, in the in the in the civil litigation context, I turned down clients all the time saying, we're not going to get the Court of Appeal excited about taking us up on our read so, but in the family law context, I sometimes get approached, either oppose or help with a move away order. And for our audience perspective, it's an order that lets divorcing spouse take a child out of the jurisdiction to another state or another town because of a marriage or a job change. And I gotta, I gotta tell you, when I get these rents, I think, Oh, my God, this is the case with the Court of Appeals gonna find good cause that there's no adequate legal remedy, that kid's gonna be all grown up at this time this case is resolved. This is a case where a court of appeals gonna grant the writ either for or against the move away. And I gotta tell you, my experience, my gut is proven wrong. And I never seen a Court of Appeal really get involved on a move away. And I was wondering, in your experience, is there any magic to getting the Court of Appeals attention on a writ petition involving move away orders?
Victoria Fuller 36:24
No, my main your experiences is right in line with mine, the last time that I looked at a potential appeal from a move away order, I remember researching, you know, can I find a reversal? Can I so I looked at case after case after case after case, and I don't remember exactly, but I found zero or one, it may have been one. But the Court of Appeal just so rarely reverse those. And again, the standard of review is abuse of discretion. So it's just so hard to show, I do remember that a lot of the decisions commented on how difficult those cases are just emotionally. And based on the facts. They're just tough cases. I know the appellate courts don't like them, but they very, very rarely reverse.
Tim Kowal 37:09
So to review our standards of review, we we've got de novo. We've got substantial evidence, we've got abuse of discretion, and in the family law, context, abuse of bass bass discretion. So one last question, Victoria, when when should family law attorneys be thinking about consulting an appellate specialist for their case? You know, sometimes they come at you when, you know, oh, by the way, we've got this order, and we need to take a writ right away, or, you know, we need to get a certification order. And is it ever you know, sometimes it's too late? Is it ever too early? What are the when should family law attorneys really be thinking this case, you know, may need to go up on appeal may need to talk to an appellate specialist?
Victoria Fuller 37:53
Yeah, I would say it's rarely too early unless, you know, financial circumstances don't justify it. But it really, really depends on the case. So like I mentioned earlier, there are cases where you want to be involved even before trial starts. But that's going to be a really unique case. You know, maybe it's a question of law that hasn't been decided, and there's a lot at stake. So for the most part, that would be too early, it just wouldn't be justifiable. But when it's the family law attorney wants to be sure to know the deadlines for requesting a statement of decision. So if there's any doubt, then definitely contact an appellate specialist before trial, just to make sure that you're aware of, you know, when and how to request a statement of decision, and then certainly by the statement of decision process, so that everybody's on the same page and protecting the client's interest in terms of preparing the proposed statement of decision, and then preparing objections and what the purpose of those objections are. Because it's not to argue everything, you know, all the issues in the case, it's, it's for a different purpose. And certainly to consider any post trial motions, and definitely by the time of filing the Notice of Appeal, because you would think, okay, there's a deadline, there's there's a 60 day deadline, it should be pretty simple to calculate. But all too often, it's not simple. And that's definitely a deadline that nobody wants to blow on the respondent, then I would also say sooner rather than later. So a notice of appeal has been filed. And sometimes, you know, parties will wait. But there is a short timeframe to designate the record. So the appellant has 10 days to designate the record once a notice of appeal has been filed, and then the respondent has 10 days to respond. So sometimes, if there's a delay, then then that deadline has come and gone. So if there's any inkling that an appeal might be coming down the pike, or if a notice of appeal has been filed, then it's time
Tim Kowal 39:51
I'm glad you mentioned a moment ago you mentioned statements of decision and I overlooked I wanted to ask you a little bit about statements of decision so I lied when I said I asked you my last question. And so we often discuss the statement of decision process on this show, and and how important they are in bench trials and family laws is all about bench trials. is the statement of decision process different in family court than it is in civil court?
Victoria Fuller 40:15
It's exactly the same same statute, civil procedure section 632. So all of those rules apply.
Tim Kowal 40:22
Okay, good. Because I wanted to talk a little bit about there's there was a recent decision in San Francisco V. Hale, it was out of the first district, it was just issued last month in February of 2022. And the Court of Appeal reversed the family court order because the family judge had refused to issue a statement of decision even though it had been timely and appropriately requested. And I just learned that the Association of Certified family law specialists as requested publication of that opinion, it was issued as an unpublished opinion. But the A CFLs noted that there that a lot of family law judges were refusing to give statements of decision just like this, this Court was and it was reversed. And I wondered if you have noticed this trend in your practice of family judges refusing to sing now? I'm not going to do it not going to give you the statement of decision.
Victoria Fuller 41:14
I haven't seen it in my cases. But I do hear a lot of family law attorneys say that. So so I get what I'm hearing is definitely consistent.
Tim Kowal 41:22
Can you think of anything that family law attorneys can do? To to get the judge to know, Your Honor, you really got to give us the statement of decision, we cited the right statute, and the law says you've got to give it
Victoria Fuller 41:36
Yeah, then at that point, you're just doing anything and everything you can and whether it's a motion for reconsideration, whether it's that plus a motion for new trial, I'm citing the case law, obviously saying that it's error to you know, refuse to provide a statement of decision when it was properly requested, and then making a showing of prejudice, because Because Because now you know, before a lot of appellate decisions used to say that was reversible, per se of it. But the California Supreme Court change that you've got to show prejudice. So So making a showing and those motions, not only to demonstrate the error, but to show prejudice, you know, something along the lines of a decision that you just mentioned, the recent one, involve a situation where there were two irreconcilable decisions. And so the court of appeals reversed based on that saying, there's really no way to review this, because you can't reconcile these whatsoever. So I would say research, you know, the cases on statements of decisions, and you'll find a springboard, you know, you'll find some, something similar to it'll give you some ideas on where to, or how to show prejudice.
Tim Kowal 42:46
Yeah, that's that seems to be the trick is how to show prejudice. And some sometimes it seems like, you know, your mileage will just vary. I haven't I haven't found a good formula for for how to show prejudice. Sometimes the court will just say, Well, you know, if the court would have gone to the task of writing up the decision, the the errors would have come out in the writing. And, and that's enough for for showing prejudice, which is almost just a long winded way of saying reversible per se, but others will will make a deeper analysis of whether there was prejudice shown. Okay, so we've covered the topics that we had discussed before, before recording. Now Jeff is going to spring the trap and ask you a bunch of the really hard questions.
Victoria Fuller 43:28
Oh, excellent. Yeah. Can I reserve the right to fail?
Jeff Lewis 43:34
This is our trademarked patented, proprietary lightening round, asking the most important question, question some facts and pellet nerds around the world. We'd like one word or one sentence answers if you're able, are you ready? I'm ready. Font preference century schoolbook Garamond or something else? Garamond. Nice. Nicely done. After a period two spaces or one, one? That is correct. Referring to a party as appellant or respondent throughout the brief, or do you like to use party names?
Tim Kowal 44:11
PARTY NAMES? Okay. But then the real question was, is the rule to avoid using the party designations where you can? Or do you avoid it like the plague?
Victoria Fuller 44:22
I like to I like to humanize the case. So So I like to use PARTY NAMES when I can. But of course in family law, sometimes they have the same name. So it's tricky. So sometimes I'll use husband wife, mother, father, I really tried to avoid appellant respondent.
Jeff Lewis 44:37
Do you try to dehumanize the other side by using your clients name but referring to other studies respondent?
Victoria Fuller 44:43
No, I'd like to sometimes but it's just too obvious. All right,
Tim Kowal 44:49
so devilishly idea, Jeff.
Jeff Lewis 44:52
Okay, and I know we got a bit of a time crunch. The final lightning round question will be when you're talking about your major argument headings in your appellate brief Go with all caps, initial caps or sentence case. Initial caps. Nicely done. Alright, you've survived the lightning round and after episode 50 Records Tim's gonna pass out a t shirt saying I survived Tim and Jeff's lightning round
Tim Kowal 45:15
to send us your size.
Victoria Fuller 45:19
Oh, I can rest out she knows scary.
Tim Kowal 15:23
Okay. Oh, Jeff, I think you had one one bit of legal news you want to pass on? Oh, yeah.
Jeff Lewis 45:27
If we have time, I'll just share that. A couple of weeks ago, we recorded our podcast with Attorney Sean Brady about second amendment litigation, in particular, the McDougal appeal concerning Second Amendment rights in relation to COVID-19 orders shutting down gun ranges. And the Google decision was really interesting because it involved one judge showing both the majority opinion and a concurring opinion predicting that the Ninth Circuit was going to grant on bonk review, and he was right. This week, the Ninth Circuit announced it was going to do an on bonk review of McDougal opinion concerning the propriety of shutting down gun ranges during COVID-19. So just to follow up on that,
Tim Kowal 46:06
Judge Van Dyck is a profit after all. Yeah, and he also Ravana years Doctor 20 years on the on the bench judge FiBL down here in the Santa Ana Court of Appeal, fourth district division three is going to be retire retiring at the end of this month on March 31. That's going to we already had three recent retirees on on that met division. We had one replacement, and this brings it down brings us back up to three vacancies. So we're gonna be hurting for a little while. Yeah,
Jeff Lewis 46:34
that's it's a big deal. Okay. Well, Tim, I
Tim Kowal 46:36
think that wraps
Jeff Lewis 46:37
up this episode.
Tim Kowal 46:38
Yeah. 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 when preparing for trial.
Jeff Lewis 46:50
See you next time.
Anouncer 46:51
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's ca l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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In defense of the prohibition on citing unpublished opinions, attorney Ryan McCarl notes to Jeff Lewis and me that, so long as California appellate judges continue “nonpublishing” opinions on the assumption practitioners not understand them to be real judicial decisions, we’d have to change their assumption before we change our understanding.
Watch the clip here.
This is a clip from episode 24 of the California Appellate Law Podcast. Listen to the full episode here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.