Some recent cases have suggested appellate courts might be more receptive to challenges to arbitration awards than in the past. But the Second District Court of Appeal swung hard in the other direction in *McQueen v. Huang* (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606. The court sanctioned the appellant and his counsel over $38,000 for challenging an arbitrator’s award for legal error. Mere legal error is not a ground to overturn an arbitration award, so the appeal was doomed from the start. The court also pointed to appellant’s “gamesmanship” in the trial court.

The plaintiff-appellant sued defendants for a breach of a contract to sell real property to the appellant. The matter was arbitrated, though after a circuitous route, due to the appellant’s many efforts to avoid arbitration. (He first sued in federal court; the federal court ordered arbitration; the appellant took an appeal from that order, but it was a nonappealable order; he then unsuccessfully moved to compel mediation; he later filed in Superior Court and, once there, moved to compel arbitration, claiming it was defendants who were refusing to arbitrate.)

The arbitrator found the contract was void and dismissed the appellant’s complaint. The appellant claimed this ruling exceeded the arbitrator’s powers because how can the arbitrator void the arbitration agreement without undermining his very authority to arbitrate the dispute?

The Court of Appeal not only rejected this argument, it sanctioned the appellant and his counsel over $38,000 for taking a frivolous appeal.

Frivolous Appeal Sanctions Were Based Partly on the Forfeited and Meritless Argument, But Mostly on the Appellant’s Bad Faith Litigation in the Trial Court:

Why did the court impose such steep sanctions? After all, the appellant’s argument seemed to have at least plausible merit: the trial court had found the arbitration agreement to be valid, but the arbitrator found the agreement not to be valid, so certainly something seems at least a little amiss.

The Court of Appeal did reject appellants argument, but not so forcefully that sanctions would follow from this alone. Instead, the bad faith litigation tactics in the trial court seemed to play a large role in the imposition of appellate sanctions.

First, the court noted that the appellant had never raised the argument in the trial court, so it was forfeited on appeal. (See Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406 [“ ‘As a general rule, failure to raise a point in the trial court constitutes ... waiver and appellant is estopped to raise that objection on appeal.’ ”].) Failing to raise the argument first in the trial court was in violation of bedrock rules of appellate procedure. (Mundy v. Lenc, supra, 203 Cal.App.4th at p. 1406.)

Second, the court rejected the appellants implicit argument that the arbitrator lacked the power to find the agreement unenforceable. The court did not cite authorities directly on point, but did cite Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1184 for the general proposition that arbitrators “have the power to decide any question of contract interpretation, historical fact or general law necessary, in the arbitrator's understanding of the case, to reach a decision,” and that ‘ “[t]he arbitrator's resolution of these issues is what the parties bargained for in the arbitration agreement.” ’ [Citations.]” And besides, even if the arbitrator had erred, “Inherent in [the arbitrator’s] power is the possibility the arbitrator may err in deciding some aspect of the case. Arbitrators do not ordinarily exceed their contractually created powers simply by reaching an erroneous conclusion on a contested issue of law or fact, and arbitral awards may not ordinarily be vacated because of such error.” (Id.)

(Comment: Note that the court did not take up the appellants argument directly here: what role does the trial court’s finding of a valid enforceable agreement play in the arbitration? None at all? And doesn’t the existence of conflicting rulings on this point create a challenge to the order compelling arbitration? The opinion does not indicate whether the appellant challenged that order.)

But what really seemed to bother the court was the appellant’s litigation conduct in the trial court. The court noted that “plaintiff and its counsel have repeatedly engaged in abusive litigation tactics over the course of the more than six years this simple real estate dispute has been litigated.” The court pointed to the fact that the appellant would not agree to arbitration and forced the defendants to file a motion to compel arbitration; that the appellant appealed the order granting arbitration (an order that was nonappealable); then refused to arbitrate and instead moved to compel mediation; then did a turnabout and moved to compel arbitration, “disingenuously claiming it filed this lawsuit to compel defendants to participate in the arbitration”; and then when arbitration commenced, the appellant sought to disqualify the arbitrator it had selected. Finally, the night before oral argument in the appeal, the appellant’s counsel sought a continuance on the basis of a trial in another matter, neglecting to inform the Court of Appeal that the trial had been set weeks earlier. Then at oral argument, counsel misrepresented his participation in the litigation below, claiming he only became involved later, contrary to court records.

The court concluded: “We find the conduct over the course of this protracted litigation is particularly egregious, and therefore grant the motion for sanctions. (See Nat'l Secretarial Serv. v. Froehlich (1989) 210 Cal.App.3d 510, 526–527.)”

The court imposed $38,411 in sanctions jointly and severally against the appellant and his counsel, and sent the opinion to the State Bar.

The Upshot: Appellate sanctions usually are a high hurdle, and on the quality of the appellate arguments alone, I would not have rated sanctions remotely likely. The lesson of this opinion, then, is that the appellant’s conduct in the trial court can play an outsized role in the imposition of appellate sanctions. If the appellant’s conduct in the trial court creates an impression that the unsuccessful appeal is part of a pattern of driving up the expense of the litigation, then this can be a grounds for sanctions almost by itself.

When evaluating an appeal, always take into consideration the possibility of sanctions.

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.

Here is a memorable case that illustrates how to get audio and video footage into evidence, how to challenge admission of that evidence—and how not to challenge it.

A crossbow-wielding defendant at trial cleverly attempted to prevent admission of audio and video footage proving he fired arrows into the plaintiff’s law office. Although unrepresented at trial, the shrewd defendant in Quintero v. Weinkauf (D1d4 Mar. 3, 2022 no. A159812) 2022 WL 620722 (nonpub. opn.) was keenly aware of three important things about using audio and video footage at trial: (1) it must have proper foundation; (2) audio recorded without consent generally is illegal; and (3) it may implicate the right against self-incrimination.

But none of the defendant’s strategies worked for one simple reason: he was transparently attempting to lie to the court. The plaintiff recovered a judgment totaling $2.2 million against the defendant (who was found to be worth $1.5 million).

Here are some more facts from this memorable case.

Someone fired crossbow arrows into the plaintiff’s law office building on three separate occasions. The plaintiff installed a surveillance video system after the third occasion. (Two crossbow arrows apparently being within tolerance of this hardy plaintiff.)

Anyone who would shoot three crossbow arrows at your law office surely would be back for a fourth, and sure enough, the plaintiff spotted the defendant’s red Jeep in her footage. And the plaintiff could positively identify the defendant after the law office building suffered a fifth crossbow firing (the defendant, it seems, really hates that law office building).

Yes, defendant admitted on a phone call with the plaintiff, he fired a crossbow arrow into the plaintiff’s building. But only once, he insisted. He had no idea how those other crossbow arrows got there. The police monitored and recorded that phone call.

The Audio and Video Recordings Were Excluded for Use as Direct Evidence Under Penal Code § 632 and Evidence Code § 1152

At trial, the defendant moved in limine to exclude the video of him shooting the crossbow at the plaintiff’s building and the audio of his phone call admitting to firing the crossbow at the plaintiff’s building.

The trial court partially granted the motion on the grounds of self-incrimination, and that the phone call was recorded without the defendant’s consent, and that it was in furtherance of settlement negotiations under Evidence Code section 1152. The audio and video could only be used for impeachment.

But the Recordings Were Allowed to Impeach When the Defendant Perjured Himself

But at this point the defendant got cocky. On cross-examination, the plaintiff asked the defendant if he denied shooting a gun at the building. The defendant knew this question put him on a fork: a truthful answer doomed him, and a false answer would invite the audio and video footage.

So the defendant refused to answer.

That didn’t work. The trial court allowed the plaintiff to play the audio and video footage for the jury, ultimately resulting in judgment for the plaintiff.

On appeal, the Court of Appeal held admitting the audio and video footage was not an abuse of discretion.

First, the court acknowledged that Penal Code section 632 ordinarily prohibits the use of recorded phone calls without the other party’s consent. (Pen. Code, § 632, subds. (a) & (d).) But the court went on to note that the statute does not prohibit the use of such recording to impeach **a witness making statements inconsistent with those conversations. (Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1496–1497; People v. Crow (1994) 28 Cal.App.4th 440, 452 [“Evidence of confidential conversations obtained by ... recording in violation of [Penal Code] section 632 is generally inadmissible ... but can be used to impeach inconsistent testimony by those seeking to exclude the evidence”].) The rationale for this exception is simple: Penal Code section 632 “cannot be construed so as to confer upon a testifying witness the right to commit perjury.” (Frio, supra, at p. 1497.)

Here, the defendant tried to offer evidence of a towing receipt to the effect he was not present with his crossbow at the time and place the video showed he was. This opened the door to being cross-examined on the subject.

The court held the same rationale applied to reject the defendant’s other arguments that the recording violated his right against self-incrimination, and his right to counsel, and that his statements during the call revealed settlement negotiations protected by Evidence Code section 1152. “‘While the privilege against self-incrimination does assure an accused of the right to remain silent at his trial, it does not ... encompass a right of an accused to lie in his own behalf at trial.’ ” (People v. Macias (1997) 16 Cal.4th 739, 749; People v. Coleman (1975) 13 Cal.3d 867, 892.) The same is true for alleged Sixth Amendment violations. (People v. May (1988) 44 Cal.3d 309, 319.)

And the court in People v. Crow (1994) 28 Cal.App.4th 440, 452, explained that where a statement is obtained in violation of a criminal defendant's constitutional rights, or is made during the course of negotiations, there is a “significant” distinction between use of such statements by the prosecution in its case-in-chief, versus use “only to impeach the defendant's credibility after he had first made contrary statements on direct examination in the defense's case-in-chief.” (Crow, supra at pp. 450–451.) Use of these statements for impeachment purposes is permissible because, otherwise, such protections could be “ ‘perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.’ ” (Id. at p. 451.)

The Audio and Video Footage Had Proper Foundation

The court acknowledged that audio and video footage is considered a “writing” for evidentiary purposes, and thus must be authenticated before it can be received into evidence. (Evid. Code, §§ 250, 1401, subd. (a).) To authenticate a writing, its proponent must introduce “evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.” (Evid. Code, § 1400. See also Cal. Rules of Ct., rule 2.1040 [requiring the offering party provide a transcript of the electronic recording and copies of the recording to the opposing parties].)

the plaintiff laid sufficient foundation here bye testifying that the voice is on the audio recording matched her recollection of the call in which she participated, and the detectives testified about how they created the recording and copied the audio to a DVD.

The Upshot: Have a plan to admit your audio and video evidence. And if you are challenging the admission of evidence on appeal, remember that the standard is abuse of discretion, and thus very difficult to overcome. And if there is video of you shooting your crossbow at someone’s office, and if you admitted you actually did shoot the crossbow, and if you still insist on denying it at trial—and further if you are worth $1.5 million—consider hiring legal counsel.

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“I’m not a prophet,” Judge Lawrence VanDyke wrote in his controversial concurring opinion in McDougall v. County of Ventura. Second Amendment attorney Sean Brady disagrees. Joining appellate attorneys Tim Kowal and Jeff Lewis, Sean says Judge VanDyke will be proven correct: the Ninth Circuit in the last several years has granted en banc review of every panel decision favorable to the Second Amendment, and has denied review to every unfavorable decision.

(And a few days after taping, On March 8, 2022 the Ninth Circuit granted en banc review of McDougall.)

McDougall involved Covid-19 orders shutting down gun ranges. The McDougall decision found Governor Newsom’s executive orders violated the Second Amendment.

Sean explains how the Ninth Circuit, and other circuits, have adopted a line of Second Amendment analysis that follows more closely Justice Breyer’s dissent in D.C. v. Heller than the Supreme Court’s majority. That is why, after writing the opinion for the panel, Judge VanDyke also wrote a concurrence, reaching the same conclusion but using this alternative line of analysis.

But wasn’t Judge VanDyke’s concurrence jarring and off-putting? Perhaps. And it is an unusual style for a judge to resort to. But the three attorneys agreed that Judge VanDyke meant it, quite deliberately, to be at least slightly offensive: an affront to the modern taste for cool and logically seamless forms of persuasion. Judge VanDyke genuinely believes that, however it happened, the train has gone off the tracks, and it will take some shoving and heavy breathing to put it back again.

Transcript:

Sean Brady 0:02
Well, you might have objections with Judge VanDyke tone. I think that if you read his concurrence alongside the Ninth Circuit opinions that he is referring to, and and taking the task, I think he's vindicated. Welcome to

Anouncer 0:17
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 0:31
Welcome, everyone. I am Jeff Lewis.

Tim Kowal 0:33
And I'm Tim colwall California Department of podcasting license pending references check. The California appellate law podcast is a podcast for trial attorneys and other appellate attorneys. Jeff and I both split our time between trial and appellate courts. And in this podcast, we try to bring our audience guests and news that might help other attorneys in their practice and inform them on interesting developments in the law and the legal profession.

Jeff Lewis 0:59
Welcome to Episode 26 of the podcast.

Tim Kowal 1:01
And today we welcome Sean Brady to the show. Sean is a constitutional litigator most prominently taking on Second Amendment cases. Sean's practice also includes municipal law, legislative advisement, constitutional law, civil rights litigation, firearm regulatory compliance, Construction Law and Business Litigation, Sean's handled trial court matters and all of these areas and appellate matters and most of them, including arguing in front of the state and federal courts of appeal. As an attorney, Sean has also served as co chair for the Coalition of civil liberties and as a guest lecture on constitutional law at Westwood college. So Sean, welcome to the podcast. Thanks for joining us.

Sean Brady 1:40
Thanks for having me, John.

Tim Kowal 1:42
We've been talking for a while now about bringing you on to the show to talk about some of these emerging Second Amendment cases. And finally, with we'll get to this recent decision by Judge Van Dyck on the Ninth Circuit, that they got a lot of eyeballs because of the way it was written, we'll get to that unusual opinion or duo of opinions in a moment. But just to kind of get the audience acclimated to you a little bit. I want to just kind of go into your background. Tell us a little bit about your law practice.

Sean Brady 2:12
Sure. So I am a partner at the law firm and Michelle and Associates in Long Beach. Our firm is does all sorts of civil litigation, little bit of criminal defense work, but most of it or I guess we're most well renowned as doing matters that are relating to firearms. So specifically civil rights cases where we represent plaintiffs to challenge laws or policies by the government. We do defense of companies that are in the firearm industry, for example, the government might bring 7200 actions against these companies or plaintiffs might seek damages from them for personal injury reasons. Even though there's the PLC A, there are ways around that in certain instances that we defend against. We also provide regulatory advice to fire those in the firearm industry so that they can avoid being in those types of litigations ahead of time. And so, we also represent interest groups for you know, nonprofits like the NRA and CRP we have in the past, providing memoranda for their, their members that they can put out and keep them out of trouble as well and keep them abreast

Tim Kowal 3:32
of the law. And the CRP A is the California Rifle and Pistol Association. That is correct. And where is your office located?

Sean Brady 3:41
Long Beach?

Jeff Lewis 3:43
Where neighbor's house Verdi's? Oh, very good.

Tim Kowal 3:47
Now Long Beach? Well, in full disclosure, I was a law clerk at Sean's a law firm. During college, Sean and I went to law school together at Chapman law school. And so Sean John carried on there. I went on to do more business litigation and then appeals, how much of your work is, you know, I've read in your bio, that you do business litigation, some commercial litigation, what's the breakdown between your civil rights litigation and, you know, kind of garden variety commercial litigation?

Sean Brady 4:15
These days? I would say me personally is about 5050. I'd say the firm is still probably, I don't want to speak for others, because there are individuals who do a lot of employment law and things that have nothing to do with firearms, but I would still say it's a majority of firearm related issues. On the plaintiff side. So yeah, it's me personally, though. 5050. And a lot of the 50 of that defense work, it does involve firearms as well. So I'd say the majority of what I'm doing is firearm related.

Tim Kowal 4:48
I'm always curious about about attorneys who do civil rights litigation. Do you have to do the commercial litigation to fund the the Civil Rights practice?

Sean Brady 4:59
There is an hour so that, you know, we don't get paid a whole lot on the civil rights litigation side until a potential win, which can be yours and maybe not happen at all, as you all are aware, you know, a lot of these civil rights cases are designed to go all the way they're designed to make law. So you know, we're not trying to settle to get a big check, we're going the distance. And so those types of cases can be expensive. And the the nonprofits that are generally funding, those are the private individuals, you know, aren't looking to pay top top hourly rates for cases of that nature. So yes, there is an element of that, but also just, you know, I come from a family of contractors. So you know, you get, you can't say no to family, so you get sort of sucked into that. And then you build a practice around, that sort of stuff. And you learn different things, because clients who are in the gun world also will need different things that that we need to be able to, you know, service them for. And so you just pick things up as you go.

Tim Kowal 6:08
As an aside, I mentioned that I that I worked at your firm, Michelle and Associates, this was back in 2006 or so to that in 2007. And I remember at that time, in Long Beach, there's a ton of great restaurants down there. But I know Long Beach was very locked down and, you know, during during COVID. And I wonder is that is that persist? Or is Are things getting closer to back to normal?

Sean Brady 6:30
It persists somewhere, it's not really locked down. And they've sort of allowed everybody around here to do outdoor stuff that that, you know, kind of opens it up a little bit. But yeah, it's it was hit fairly, fairly hard by that.

Tim Kowal 6:45
Yeah. I mean, what courts are most of your cases filed, they in state court, or mostly federal court?

Sean Brady 6:51
Sure. On the plaintiff side, it's almost always federal, we occasionally are filing state court cases, state preemption challenges in state cases. But beyond that, the only time I'm really in state court is when I'm defending a case that was fraught by playing if you chose state court.

Tim Kowal 7:11
And are you always starting in the Ninth Circuit? Or does your work take you in other circuits? No, it's

Sean Brady 7:17
primarily the ninth, you know, unless we're doing an amicus brief, occasionally, we'll have an issue that's being raised in an appeal in another circuit will impact NATO potentially impact nationwide, like the right to carry or the challenges to so called assault weapons or large capacity magazines. And so it will make sense for one of our clients to file have us found an amicus brief in those matters as well. Yeah. Beyond that, we strictly stick to the ninth circuit.

Tim Kowal 7:49
You shared with me one of your recent amicus briefs. I wanted to talk with you about that a little bit later on. All right. And then the last question before we kind of get into the meat, like you Tell us quickly about the your favorite case that you've ever worked on?

Sean Brady 8:03
That's a tough one, because I've had a lot of interesting cases, as I'm sure you can imagine that being in the world in which I work. But I would have to say that a case called Parker v. California, which was actually in state court, and not a Second Amendment case, it was a fakeness challenge was probably my favorite case, just because it was one of those things that just ran the gamut of procedural issues, legal issues, novel issues, experts, characters, who were the experts. You know, my expert witness the issue was ammunition that the state passed a law that you had to register and have all these restrictions on so called handgun ammunition, but they define handgun ammunition as ammunition principally for use in a handgun. Anybody who has any idea about firearms understands that cartridges are interchangeable. There's no such thing as you know, you would say is nine millimeter principally for use and a handgun or long gun, everybody go it's a handgun. And then I would show you all these rifles that shoot any backhoe and machine guns for that matter. And then you would say, well, what's the test for principle that, you know, the military is burning millions of rounds of nine millimeter through machine guns, whereas civilians, you know, might have a ton of nine millimeter handguns, but which, which is principle. So it was a vagueness issue. And we had to get experts involved in our expert was a former California Department of Justice Bureau Chief narcotics undercover officer who had been in to gunfights still had bullets in him. It was just kind of having fun with the whole thing explaining to the government that your law doesn't make sense. You don't know what you're talking about. And we won at the trial court level we want at the appellate level. And I think we went a little too well, at the appellate level. The appellate decision kind of went a little bit further than it kind of had to, and I think that's what triggered the California Supreme Court's attention, who accepted it, and we were were briefed and ready to go in the California Supreme Court. But they took so long that the legislature passed the law mooting the entire case said, Okay, we're done with this handgun ammunition nonsense. We're just gonna apply it to all ammunition which is where we currently are as well as the legislature and propositions. Gavin Newsom is proposition 63, which is now the subject of all of our current litigation, more or less.

Tim Kowal 10:22
Oh, that's, that's a wild ride. So you actually got the attention of the ledges legislature. So rather than getting the Supreme Court outcome, you got got a legislative outcome

Sean Brady 10:33
twice, actually before but they tried to move it by doing some ticky tack maneuvering early on, and we provided our clients that, you know, the lobbyists to go and explain why that wouldn't work. And it I forget forgot veto. I think Governor Brown actually vetoed it. So it was it was quite a wild ride many, many different aspects.

Tim Kowal 10:57
Alright, well, that's a good good entree into into talking about some of these Second Amendment cases recently out of the Ninth Circuit, I wanted to give a short disclaimer, since we are going to be talking about gun rights and gun control laws and with some people that can cause some heart palpitations because it's can be a very controversial subject. So even though we're going to be discussing these subjects from a couple of levels removed, the issues are still controversial. When I'm when discussing a controversial subject, my preferred practice is to reveal my my biases, which are here in favor of broader protection of the Second Amendment. And in the end with that the the audience can adjust their frequencies accordingly. We have some I don't

Jeff Lewis 11:37
have a practice of disclosing bias, but I'll just go out there and say I tend to weigh in on the side of common sense gun reform and restricting automatic weapons. But that's just been I'm looking forward to this conversation.

Tim Kowal 11:51
Well, good. So we have some we have some balance.

Sean Brady 11:53
And despite despite my last name being Brady, I agree with Tim, on this issue. So

Tim Kowal 12:01
there you go. So we do have some interesting Second Amendment news of interest to appellate attorneys in the McDougal versus county of Ventura decision out of the Ninth Circuit. McDougal was surprising because in that case, the Ninth Circuit enforced the Second Amendment. So that's good news to Second Amendment supporters of the outcome. But it was so surprising though that it even surprised judge Van Dyke who authored the majority opinion. And he was so surprised, in fact that Judge Van Dyck authored his own concurring opinion in which he wrote the dissent, or at least got the dissent started for the on but on bonk review, he is he is certain is coming. Shawn, I wonder if you would tell our audience a little bit about McDougal.

Sean Brady 12:41
Sure. But firstly, to start off, I don't know how surprising it is with the current makeup of the court. We've actually lately had quite a lot of favorable Second Amendment opinions out of panels of the Ninth Circuit. And so with this new makeup, it's not unexpected or surprising at all to get these favorable opinions. It wasn't in the recent past. I believe with Trump appointees that sort of that dynamics changed. Obviously, we've had a favorable opinion in the young V. Hawaii case, which was a right to carry case. In a case our office handled the dunk can be viscera, which was about large capacity magazines. I personally argued in front of a panel over California's restriction on so called assault weapons called rep V viscera, which is now stayed pending a Supreme Court case coming down which the two Trump appointees and so the that panel should seems to be favorable wanting to issue a favorable opinion as well. You know, so it's not that surprising what I think, ironically, with Judge Van Dyck, it says that it would be surprising if the full ninth circuit on Bach doesn't take that that went away. That's what would be surprising. And, you know, I think he's right. Before we get into that, I'll just answer the, the question of what does McDougal involve? And McDougal was essentially, about back at the beginning of the pandemic, the California Health Board or health department, issued an order, basically saying that these are the companies that are these are the businesses that are essential and can remain open. And if you're not on that list, sorry, you can't, you can't operate and firearm stores were not on that list despite being protected by the Second Amendment, or at least arguably so. And so the the McDougal lawsuit was basically saying the government cannot declare an emergency and leave some stores open and then say that the one store that is the purveyor of a fundamental right is not essential and can be shut down indefinitely. I you know, it ended up being 48 days or so, but that was only after tremendous pushback, you know, With tons of litigation filed by all sorts of people, there was more than just this MacDougal lawsuit. That's the one that's ultimately continued and survived. There were some that just basically gave up because they consider their cases mooted after they open gun stores back up. And folks didn't want to continue to push the issue thinking, you know, this was a one off, it won't happen again, the plants in McDougal thought otherwise and decided to push the issue to the night and, and good for them and good. So, you know, good because it produced this opinion. That was unanimous, you know, it was to concurrences. One sort of, as I think we'll talk about, kind of a boat, you know, quasi concurrence. But you know, it was all three judges, essentially, the green and the outcome that you cannot shut down guns to the Second Amendment precludes government from shutting down entirely gun stores indefinitely. Hmm, I think you're muted.

Tim Kowal 15:55
Sorry about that. Yeah, I was having a coughing fit. So I muted myself. I think the the lead example, by contrast that Judge Bandai gave was that gun shops were closed while bike shops were open. So you know, what's the deal there? I think is what he was saying. And as you mentioned, he got you know, he got the whole panel to, to sign on to as majority. But then he wrote a concurrence in which he indicated that there was another way, a two step approach of that the that the Ninth Circuit and other circuits have been have adopted in the wake of Heller and MacDonald. Now, he takes some issue with but I think you wanted to say that, here's the here's the right approach that I put in my majority opinion. But even if the court wanted to take this more gun control, friendly approach, here's how you get to the same result. So I'm kind of given the on bonk panel a head start. So I wonder if you could just kind of quickly lay out what is the what is the correct approach, according to judge Van Dyck that he gives in his majority? And then what is the the other kind of prevailing or split approach that he writes about in the concurrence?

Sean Brady 17:02
Sure, the correct approach, and the majority is essentially saying, Look, if history and tradition and text doesn't support a restriction on on a second amendment right, then, then you're you're done. Right? You don't you don't go beyond that the government can't just make up new restrictions that haven't had been historically protected. And for the first time that I can recall, the the court actually then applied the Ninth Circuit's current test, which I think a lot of judges who are pro Second Amendment are agreeable with the Second Amendment being a robust, right, which we saw in the Supreme Court oral argument that they are not very fond of the current ninth circuit test, which is a two step test that says, you know, first you ask it is this thing that's been regulated within the scope of the right, and that's obviously a legitimate question, you know, you're not gonna play a second moment scrutiny to some that's not protected. So that's a legitimate question. But the way as Judge VanDyke explains, in his in his concurrence is that that can be avoided in a way that allows courts to sort of down downgrade the Second Amendment without really giving it its due in a in a sort of elementary way that's wrapped up in a way that looks like it is sophisticated, but it's really, as he demonstrates his concurrence can be, you know, it's just a varnish that can be, you know, rubbed away very easily in shows. The the, I'm trying to, I'm trying to be diplomatic in my approach, because I'm not as

Tim Kowal 18:45
why don't I, there was a quote from the beginning of Judge van dykes concurring opinion that I thought I'd read for our listeners, so they can kind of gauge the tone that he's taking. And so here's judge VanDyke, from his concurring opinion, quote, since our courts Second Amendment intermediate scrutiny standard can reach any diesel result one desires, I figure, there's no reason why I shouldn't write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way, I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jumpstart on calling this case on Bach. And then he goes on performs the two step analysis, Shawn, that you just alluded to. And then at the end, Judge VanDyke says, For these reasons, we affirm the district court's dismissal of plaintiff's complaint for failure to state a claim. You're welcome. Basically saying to the rest of the court, you're welcome for doing your work for you. So that drew a little bit of criticism from from legal commentators that this was this was maybe maybe a little bit disrespectful or undeploy diplomatic way of doing it. I do. I did hear report that at least one of Judge van dykes colleagues was none too pleased at this But But how else?

Jeff Lewis 20:01
How else is the judge supposed to voice concern about the direction the court is going regarding to where you are on guns? Oh, well, I think this is a great way for a judge to voice concerns about trends, bigger picture issues that go beyond one case, that's just me. I've never seen a judge write his own concurring opinion before in a case in which the author's majority but I, you know, I, for one, if I got a vote, I would say it's a perfect way to let off some steam and educate his fellow justices and judges about what's happening on the bench.

Sean Brady 20:35
I agree with you, Jeff. And, you know, it is unorthodox and, you know, uses a semi, you know, derisive tone that, you know, decorum is a little a little lacking, but, you know, parody and mockery can be powerful tools of persuasion, and like you said, call attention to an issue that that others might be and I genuinely do believe that these judges who are signing on to the these opinions, that judgment I shows walks you through how they are lacking in in, in logic, frankly, and and support. And I think some of them are so tied up in the emotion of the gun issue that they do fail to see that he's making legitimate points, and and that the logic just doesn't flow. I mean, it he demonstrates it's actually quite masterful parody, and writing. And for those of us who have been doing this for years, this is the stuff we say behind the scenes, frankly, like, I mean, you're gonna say it's a right, that's like, for example, the carry issue, right, the courts can say, we're gonna assume that the Second Amendment protects the right to carry, but then we're gonna say, intermediate scrutiny applies, because it's not a ban on guns in the home. And that just because guns are dangerous, we can just sort of justify that right away. Like, I'm sorry, that's simply not the way constitutional rights work, you've now converted or right into a privilege, either you have a right to do something, and the government has to meet a high burden to take it away from you, or you don't have a right, in which case, you know, it's a privilege. And so it's really that kind of just under the surface this, a lot of these unfavorable Second Amendment opinions can be dispensed with. But as as Judge VanDyke, you know, demonstrates in a in a way that I frankly, enjoy, but But it's not my style. You know, I obviously broken amicus brief that I told you about or that Tim, you mentioned, in SCOTUS or a co author, I should say with my my colleagues.

Tim Kowal 22:44
Yeah, yeah. And I wanted to get that in in just a minute. I did think just, I want to offer my two cents on this point about about judge and dikes tack here. And I do agree with with both of you on that, that, or at least, you know, maybe maybe the volume could have been taken down a little bit, but I can I can empathize with with his frustration, all of us as practitioners have had that moment where you're reading the opinion against you. And you're thinking, okay, okay, but where was my where's the court's response to my key argument, my lead argument, where is it, and it's not there. And sometimes you get the feeling that the members of our profession, including judges can just kind of sweep things under the rug, give you a lot of word count on other issues that you didn't really care as much about, but not not on on the issue. But when I read that, that part of Judge Ben dykes concurrence, where he says, this way, I can demonstrate just how easy it is to reach any desired conclusion under our current framework. I thought of this I just read a Louis manakins book on on various American figures, including just Justice Oliver Wendell Holmes, and he pointed out that Judge justice Holmes used to like to talk to his colleagues on the Supreme Court when they're conferring about a case that he would admit any legal principle of law that they proposed. And then he would use that to decide the case under discussion in either in either either direction, because Holmes was a famous or an infamous exploiter of the malleability of words. And that, incidentally, is why he has both a monster of civil liberties and a hero of civil liberties and a monster of free speech and a hero of free speech. Because he could read the words or read into the words any meaning that he was appropriate for the outcome of that case. And, you know, that the tokens to me a problem with with an interpretation when it can lead to any outcome you like?

Sean Brady 24:39
Yeah, indeed, I think while you might have objections with Judge VanDyke tone, I think that if you read his concurrence alongside the Ninth Circuit opinions that he is referring to, and and taking to task, I think he's vindicated in his approach and his criticism and I think think that this will probably end up being his legacy. And and that will mean that 50% of people will love him in the future and, you know, reading back about him and 50% will view him less favorably. But I also think that that what he's pointing to hear is going to be Chief Judge Thomas's legacy, which is the unfair I think it's objectively unfair treatment of a fundamental right. And I think any fair minded person will see it as that if they if they look at the details, and realize that it was unjustifiable, what what how the Ninth Circuit has treated the Second Amendment under Chief Judge Thomas, that's going to be his legacy. And I think there'll be more than 50%, who will view that legacy as unfavorable. So judge Van Dyck will, I think, outdo Chief Judge Thomas in the history books on that score?

Tim Kowal 25:59
Well, he did make some headlines. I understand he was getting a lot of calls for interviews, of course, not surprisingly, he's not indulged them but but as we've been talking about Judge Van Dyck here is is rather upset about how the Ninth Circuit has been using his perception that it's been using the on bonk review process to negate any pro Second Amendment decisions, while at the same time denying review of any pro gun control decisions. And it just so happens, Shawn, that you submitted an amicus brief to SCOTUS laying out just that, just that issue. Can you tell us a little bit what that what was that amicus brief about? And does it bear out judge van dykes criticism of how the Ninth Circuit treats Second Amendment cases?

Sean Brady 26:41
sure that the case that that brief was submitted on is the case it's currently being was heard by SCOTUS a few months ago and opinions do here in spring any time. And it was a challenge to New York State's Ansari, New York City's notes in New York State, I'm sorry, the restrictions on concealed carry permits. And basically what that regime looks like is if you go into apply for a concealed First off, open carry, the ability to carry a gun, like like a cowboy on your hip openly is unlawful. So the only mechanism under New York law to be able to carry a firearm is to get a concealed weapon permit, but they have what's called a I forget that the terminology specifically because all these states that do this have, like, for example, California has a good cause standard, and they essentially have that same standard, you have to show good cause to a law enforcement entity. And I think in New York, it's actually a judge who decides whether you have sufficient need for carrying a gun. And like I was saying before, you know, if a government official has discretion to decide whether you are able to exercise your right that it's really not a right.

Tim Kowal 28:01
Yeah, if that's the only way that you can exercise the right and that's exactly it. Open carry is not a possibility. So getting the the good cause determination was the only game in town in order. Exactly. That is your Second Amendment. Right.

Sean Brady 28:13
So RKR firm currently has a case in the Ninth Circuit pending on charging California's law on essentially the same grounds. But it stayed pending the decision in SCOTUS. So our brief didn't really go into the merits of the specific law at issue in New York. As a matter of fact, we open up the brief saying, you know, petitioners have done a fantastic job convincing this court why they should win. We're here more to explain the problems that are going on with courts on all Second Amendment issues. And well, the Supreme Court is usually more inclined to limit their rulings so that there isn't a larger impact. In this instance, it may make sense to go beyond that, because you can potentially avoid a whole slew of new cases coming down if you sort of clarified to these lower courts that they are appropriately applying the law. So we walked them through all the circuits and how they they do exactly what Judge Van Dyke was criticizing in the night that we we focus on the ninth being from the ninth, mostly and laid out how literally every single case that has a favorable ruling from a panel in the Ninth Circuit has been has been taken on bonk and overturn with one small exception. Excuse me, that was our case over the so called California's restriction restriction on so called large capacity magazines, which we were up on a preliminary injunction. I was shocked at the state even appealed the petition

Sean Brady 30:00
or injunction? And then, you know, we were happy that we prevailed at the panel level, but then a judge lit actually call for aanbod review of a preliminary injunction upholding a preliminary injunction. And it wasn't until the state

Tim Kowal 30:16
so ever seen that before. That's that seems awfully it would be awfully rare.

Sean Brady 30:20
Yeah. is extremely rare, you know, on box are supposed to there it says in the in the rule for on BOC review that it's not favor, it's unfavorable. So but like, it seems to be favorable in the Second Amendment world, when there's an unfavorable urban, there's a favorable opinion, you know, that they, the judge call for an ongoing vote. And it wasn't until the state set weighed in and said, we don't even think that that the preliminary injunction, you know, warrants on Baugher view and then the court relented and let it go. If had the state not weighed in, I think that the Ninth Circuit would have held a preliminary injunction ruling on bonds. And it's not just the preliminary injunction. I mean, some of these cases that the the Ninth Circuit has taken on Bach have included, I believe, was the to share case where all the panel in the night said was pay the lower court dismissed this case, saying that it's not there's no second amendment issue involved, and they declined to apply any scrutiny. We think that there is a second amendment issue involved. And we want to remand just to hear, you know, the choose to have scrutiny apply and see what the lower court says they won't give it a win or making any final dispositive determinations and simply said, we want to remain this. And the ninth took that out of the hands of the District Court. And on bought it same, same with the Nordyke case. Yeah. Not dispositive rulings that

Tim Kowal 31:53
yeah, I was gonna point out Nordyke and just for our listeners, I thought I would just mention a couple of the other cases in your amicus brief that stood out to me that the Nordyke case where apparently the panel, this was right after the DC versus Heller case in 2008, followed by McDonald in 2010. So this is in 2011, the ninth circuit panel granted plaintiff leave to amend in light of the recent Supreme Court decision, but then on bonk, took it up and said no, no, no right to do a man just dismiss with prejudice. And then another case of Duncan versus Bursera, in 2018, where the panel apparently in, in affirming a gun control legislation relied on Heller's dissent rather than the majority opinion. And yet, there was no on bonk review. And then we talked about kind of the getting them coming and going problem, you don't have a right to open carry. But when you get when you challenge a discretionary determination on concealed carry, the the Ninth Circuit said no, the Second Amendment doesn't protect the right to concealed carry, but then was silent about the prohibition on open carry, which effectively wrote the Second Amendment out of the Constitution as it concern those plaintiffs. So those are those are some ones that stood out to me that that I thought bore out your, your argument, and then judge van dykes argument that. Yeah, there does seem to be two different standards here, when it comes to gun control measures seem to get I get the light touch and pro Second Amendment decisions and get the full on bonk review.

Sean Brady 33:27
Yeah, not a single if the excuse was, hey, we're in a, a new world with the Second Amendment stuff. And you know, the Supreme Court just made a ruling in 2008. And we kind of have to get this right. We're in the early stages, kind of like when the First Amendment first started getting heard by courts and evolving, or the jurisprudence was evolving, you know, if that were the case, okay. But you have to at least be able to point to one case where there was an unfavorable opinion, to, to, you know, sort of give credence to that or to, you know, to suggest that that is actually what they're doing. But, you know, when it's, when it's five or six, I forget what the score is, but five or six favorable opinions get on bonds and CRO on the unfavorable. I think that there's some suspect there. And that's why we wrote the brief. And that's why I think, Judge Van Dyck will be vindicated, you know, perhaps not his tone, but his his reasoning will be

Tim Kowal 34:30
for sure. Now, coming back to McDougal, I haven't checked, what's the status on that has has the Ninth Circuit ordered on bonk review,

Sean Brady 34:39
the man ordered it but a judge called for a vote. So the process is if the parties don't ask for all BOC review, which in this case, the parties did not the county of Ventura does not care. I don't think at this point, whether about this case, they they're of the mindset of like we just had this policy whether We agree with it now or not, who cares? It's gone. We don't want to spend more time and money litigating it. But apparently at least one judge on the ninth circuit does want to have it rehearsed and called for a vote. So now a vote will be held. And then they'll decide whether to request a briefing from the parties. Or if the judge fails to secure a majority of votes, then it won't go on. Bonk. But if if the judge does get a majority of votes, say yes, then it's it is going to join the the Qadri of the on box Second Amendment opinion. So

Tim Kowal 35:37
Well, before we move on from MacDougal. Jeff, did you have any any other questions about McDougal or? Yeah, well,

Jeff Lewis 35:44
I don't know. I don't have any questions about McDougal. I didn't know I you know, there was a footnote addressing the mootness issue. And I gotta tell you, COVID-19, and the way different States responded to COVID-19. You know, I've thought certain states should get kind of a mulligan on kind of how they responded to COVID-19. I was kind of surprised this case was disposed of on mootness grounds. Because I think if the governor and the counties had this to do again, they probably would be a little more restrained and a little more nuanced, and how they would do things if there's another wave of COVID in the future. So that was my only takeaway from McDougal. I did. If you wouldn't mind me pivoting here for a second. Tim, I did have a question about, you know, it's been in the news that California's legislature is going to toy with a Texas style private bounty on gun manufacturers, modeled after was Senate Bill eight, where people in California can file a private lawsuit against gun manufacturers, etc. If they feel that state gun laws were violated. And I was wondering, I don't want to get a prejudice at your clients or any future work. But did you have any thoughts about whether or not your firm might get involved in challenging that legislation? What are your thoughts about that case? Or that law?

Sean Brady 36:59
I don't I I guess I got to be careful about how exactly I answer this. It can't really say, Yes, we are. No, we're not considering challenges. I will point out that this was the subject, that the abortion version of this law was the subject of a case that went up to the Supreme Court, where the Supreme Court said, you know, it's not right, right. We're not going to hear this, because we're not going to challenge whether this is a restriction on anybody's rights until something actually happens, just the mere ability for somebody to do it, to bring one of these cases, as a private individual enforcing sort of the government's wishes or laws, we're not going to weigh in until we actually have one of those cases before us. So, you know, we'll see whether we're able to, you know, bring that but I suspect if people actually start bringing those types of challenges, that it would be fairly natural for those who are subjected to those types of lawsuits to, you know, reach out to our firm or people, you know, like us, you know, I handle these similar types of cases by the government, usually brought by the government or a private plaintiff who claims a specific injury. So,

Jeff Lewis 38:18
well, yeah, let me say, you know, as a lawyer is probably never going to be involved in one of these cases, so I can be maybe a little more freer with my thoughts. I, you know, I think I'm counting the votes correctly on the Supreme Court, the Supreme Court is going to ultimately uphold SBA terms of the private bounty, kind of running around the government action. And I gotta tell you, it's wrong. It's wrong outcome in my mind, it'd be wrong outcome for California to allow lawsuits against the gun manufacturers, by private citizens and calling that a fiction of well, it's not state action, it's a private lawsuit. I think it's a ridiculous fiction and both lawsuits need to go in the trash but are both laws. That's just me.

Sean Brady 38:56
I I'm not necessarily in disagreement with you I especially in the context of the firearms it's not just because it's firearms, I mean, I think the abortion version is is a little bit more clear and what the standard is in that it's like you know, is there a heartbeat although even that is like, how is a count as a non Doctor gonna tell you whether there's a heartbeat or not right? So it's the same thing with firearms No, I mean, we literally the state will say that you need an expert to tell you whether something is an assault weapon. So how is you know, the John Q citizen going to enforce you know, they might see an AR 15 on the wall at a gun store they go this guy selling machine guns or, or assault weapons and they don't know the nuance that it's not and so you're gonna drag all these gun stores into court who are abiding by the law, and and then they're gonna have to, you know, pay me to go tell the judge like, No, this isn't an assault weapon and this case should be dismissed. But then what what What are the consequences of that? Like the Oh, huge

Jeff Lewis 40:02
chilling effect is, you

Sean Brady 40:04
know, in effect, it's going down the PRCA, which is, you know, the Protection of Lawful arm arms, you know, Commerce Act of the federal protection of people. So, yeah, there are certainly problems and it, especially in the gun world where the legislature thinks they know. But getting back to my original statement about my favorite case, most of these laws are vague. And they really have no idea what they're talking about. They think they know what they're talking about. And they think, you know, they know what an assault weapon is. But when you get get down to it, you know, they realize like, Oh, our argument is that assault weapons, make the features that make a rifle, an assault weapon, make them more accurate and more user friendly. Yes, that's a good thing in our world. But apparently, in the government's world, that's a bad thing. That was literally their argument in the ninth circuit. And so, you know, there's a whole lot of problems with having non governmental entities, you know, enforcing enforcing laws that people don't understand.

Tim Kowal 41:09
That's a good, that's a good setup, Jeff, I appreciate your your principled approach and seeing the two things, you know, by the same principle, but to Shawn's point, you know, that no, two things are identical. So maybe there's a way to distinguish the two, I'm sure there are guns and, and, and, and abortion are not the not the same thing, obviously. But whenever you you have a principle that is so similar, when you when you to distinguish them, even if there's a legitimate distinction, it can be a hard sell on the public, when when there's so much at stake in both of those issues.

Jeff Lewis 41:42
Yeah, such an emotional issue. I can't wait to see how the public or the special interest groups line up either for or against SB 1594. Because you had to come after the gun industry today. And tomorrow, it'll be some other industry. And it also comes

Sean Brady 41:56
down to to have a connection, in that there are attacks from on both that are or that are solely designed to, to obstruct the people who want to do that, right. So like, granted, in abortion, it's a little bit more difficult, right? Because you want to obstruct abortion because you think it's murder, right. So I understand that. But like, there was a Texas law years ago that went up to SCOTUS, where it wasn't a direct, like, let's determine the constitutionality of abortion, it was, let's just put all this red tape and you know, you have to go to a facility that has 12 foot wide hallways, and, you know, is to within two miles of, you know, a hospital, you know, I mean, there was just all this red tape that was obviously designed not to, not to address the constitutional question, but just to hinder and kind of, like, make it impossible. And that's the same thing with guns that people don't realize is, you know, almost all of these laws are, are especially now lately, you know, the California has passed every restriction you possibly ever want the gun control groups. A decade or so ago, were literally like, okay, Brady, he was like, Oh, we already passed everything we were done here. And and, you know, these new interest groups, like, well hold my beer, let me show you, you know, I could pass all these new ones that, you know, are just designed to put red tape and lay or red tape and hinder people in exercising the right rather than addressing, you know, the constitutionality of like a real law. So I, you know, I think there's a lot of similarities there.

Tim Kowal 43:34
Well, I don't like to go from one heavy subject to an even heavier subject, but Ukraine is in the news. And and, you know, listening to that hearing about it, I was reminding reminded of how judge Kozinski talked about the Second Amendment, famously calling it the doomsday provision, referring to when the when the government is no longer the the preventer of violence, but the source of violence, then the right of self defense and to bear arms is, is all that you have left, and that's why it's a natural, right. And I wondered, Jeff, did you want to chime in on that? Well,

Jeff Lewis 44:08
you too, are seeking in Second Amendment cases, and I'm not I stopped with the First Amendment right. That's where my practice starts and ends. But so I never heard of this provision, the doomsday provision or this case. So I went back and I read it, and I think maybe our listeners might be interested to see what Kaczynski said in light of what's happening in Ukraine and everything else. He said. The second amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed, where the government refuses to stand for reelection, and silences those who protest where courts have lost the courage to oppose or can find no one to enforce their decrees, however improbable those contingencies may seem today. facing them unprepared is a mistake a free people get to make only once as a fascinating quote by Kaczynski. I appreciate you guys bringing my attention to it.

Tim Kowal 44:57
Yeah, that was a terrific opener. One Deshaun What are you? What are your thoughts about the importance of the Second Amendment in the US, but what I would call it I think the Kaczynski believed was the was a natural right of self defense and to bear arms against aggression. Even even when you have an otherwise civilized government. They, they can often fail. I've we've, as we've seen in our own country, and as we're witnessing now in Ukraine and Russia, I wonder if you if you thought that's going to affect the discussion on on gun rights in the United States?

Sean Brady 45:30
Yeah, I doubt it. I mean, obviously, I agree with Judge Kozinski. But I think both those who are pro second, I've kind of already understand that view. And those who are opposed, will will, you know, say that this is that's something foreign, right, our neighbors are Canada and Mexico, what are the chances of that ever happening? You know, we don't live in that neighborhood. And so it's different, of course, you know, Kaczynski, his view, which we all share is that it's a natural human right? Regardless whether you live in Ukraine, or Botswana, or the United States or Cambodia, whatever, you you know, you have that right. And so, you know, I just think people are to sort of tied up in their own in their own bubble to realize the universal application of that doctrine. And so I unfortunately doubt it will change the discussion at least with maybe a few and it might give those of us who are of that persuasion, one more arrow in our quiver to to shoot but it's probably gonna miss its mark.

Tim Kowal 46:34
You Yeah, you got right to the to the nub of why I think Judge Kozinski is formulation there. While while eloquent and powerful. I don't think that's the best argument for the natural right of self defense. I think the the best argument is based on incidents we've seen in our own country, such as in 2005, after Hurricane Katrina, I recall NPR, we had an article about there were reports of roaming marauders in the wake of Hurricane Katrina, people just looking to go and rob violently robbed people of what few possessions they had left. And then people realize they need to be to be ready to defend themselves. And so there was a spike in gun ownership after Hurricane Katrina, and people were reminded that, that, that hopefully not very often, but from time to time, you can expect that the thin mask of civilization may slip, and you need to be prepared for that eventuality.

Sean Brady 47:27
Well, speaking of masks, I mean, more, more recently, the past two years have seen the record gun ownership and purchasing in light of COVID, and the Summer of Love, as they call it with all the BLM and Antifa writing. I mean, there, there were, I think 2020 Was it 2020 or 2021, I think was 2020 was a the record for most firearm purchases and 2021 was, you know, not too far behind. And so I think people have you seen how, you know, while Thankfully, it didn't really happen. I remember the early days, the pandemic and being like, you know, anything could happen right now that you don't know how people will react, and when they're desperate until they do and unfortunately, it never really got to that point. But you know, there were a lot of people who were seeing stuff on fire on their TVs, and seeing people act, you know, whatever side you are on the COVID thing acting differently than you and seeing you as the enemy or, you know, doing things wrongly. And so, yeah, I think people got a wake up call back to reality, we've been so spoiled as Americans to have no concept of of anything close to what Ukrainians are going through, or people just normal, you know, in other countries where, you know, we don't understand that the level of criminality where people just can't even protect themselves. You see it in Mexico with, you know, the against cartel, you know, these people who aren't themselves because they're literally chattel to these people to these to these gangs. And We fortunately have at least somewhat the rule of law, the United States that doesn't allow that on like a systematic basis. So yeah, I think we have we're clueless to that.

Tim Kowal 49:19
But with that, with that brief interlude into doomsday and Armageddon in the heart of darkness, like we can now give our listeners some levity and talk about a couple, just a couple of procedural issues that I wanted to ask you about. Sean, nationwide stays as appellate attorneys, I'm always fascinated to, you know, to see litigation, it goes up to the to the district court, District Court will find a law invalid. And and then suddenly, it's there's a nationwide stay on it issued by a single district court judge. Does that happen very often in the Second Amendment amendment context?

Sean Brady 49:54
Yes, we it's usually not. I guess I shouldn't say nationwide. because most of the laws that are being challenged are not federal, the Federal is kind of interesting. People always talk about, you know, the probe second outside being anti federal government and you know, the ATF is the enemy. But really, the ATF and the feds are relatively mild compared to a handful of states. And it really is only a handful of states that are passing gun control, you know, California, Maryland, New York, New Jersey, Connecticut, beyond those and a handful of cities, right, Chicago, the Feds really don't don't pass anything that's that draconian now you're obviously going to find pushback from some who, you know, want machine guns and all that stuff. And I'm not. I'm not taking a position on that, because I don't want to anger anybody. But I'm just saying the federal laws aren't really what's at issue the state laws are. So we do have instances, though, where it's happening in several of our cases, as a matter of fact, the case we just filed a cert petition in yesterday, in the challenge to California, so called large capacity magazine ban, which is Duncan B. Besseres. The name of the case that happened? Because what, what California did was they ban the possession of large capacity magazines. Originally, it was just a ban on the acquisition. And then they they always said for 20 years, oh, we're not going to ban possession. And, you know, the slippery slope that's always mocked, right? Came 20 years later, and the state said, now we want them now you got to get rid of them. And we made a second amendment and a takings argument. And so when we prevailed, the the government asked for a stay of the ruling at the lower court when we prevailed on summary judgment. And the judge did not grant the stay for a week, even on the acquisition piece. So we in the in the in the gun world in generally refer to that week as freedom week, where Californians purchase probably over a million of these previously prohibited magazines, and then the trial court judge, realize that the Ninth Circuit was going to put a kibosh on that. And we sort of we knew that the judge knew that. So we basically said, our position is it's fine if you want to stay the the injunction on the acquisition piece, but you certainly should not stay the injunction on the possession piece, because then everybody's got to get rid of their stuff. And then you just moved in our case. And so and their their, you know, their harm is now set in stone, you're done. So we got that relief. And then we prevailed at the appellate level in the ninth circuit before a three judge panel, so we didn't have to worry about that. And then they took it on Bach, of course, because that's what they do. And the the Arbok panel obviously reversed us and we lose, but we made the same appeal. Go ahead. You know, you can you can enforce the injunction on the or I'm sorry, it's the reverse. You can basically have the ruling apply to the acquisition piece, but you should not be enforcing it against the possession piece and they agreed and that's where we're at as we go to SCOTUS, and we'll see what SCOTUS does, and I thought his SCOTUS will hopefully GVR all these these cases, once they set out a new standard in the Bruin case, the New York case, per our amicus brief, you know, they'll set out a new standard and send all these cases back home for another look.

Tim Kowal 53:39
It's always it's always a tough gear change from the from the trial court to the Court of Appeal. And you have to you have to be prepared to think fast about, you know, what are you going to do about about the stays and injunctions? And yeah, that's, that's, that's an interesting story about how, yeah, just in the space of a weak, you really, really created a kind of a policy shift in the state through the through the court and perhaps unwittingly. Okay. One other one other appellate, that kind of procedural issue. I wanted to ask you about amicus brief, so we talked about your amicus brief, I want to ask you more generally about amicus briefs, how important are they to your to your cases? I mean, when you're when you're taking it up, you know, to the ninth circuit, and certainly to the to the Supreme Court. You know, I think you want to get amicus briefs but you know, is that just Well, yeah, we we ought to have it? Is it kind of an afterthought, just kind of a box checking operation? Or are they really crucial?

Sean Brady 54:31
I think they're crucial. You know, you see it all the time, that the courts will glom on to something they see in an amicus brief because you can only address so many issues. Right. And you don't you want to as the as the main party. You want to focus in on the heart of the issue, right, even though you can go off on so many different tangents like with respect to the amicus brief, we filed in in the New York case, I'm sure the petitioners would love to explain that. How there's all these other issues going on that could be addressed and should be addressed and all the shenanigans going on with the lower courts, including the Second Circuit in that case, but they simply don't want to overwhelm the court. But the court is looking at these things. I mean, you could tell that that the justice is I believe Gorsuch and God, I forget, maybe it was Justice Cavanaugh, they both were asking this question about the the changing of the standard of review, that should be applicable in Second Amendment cases and sort of playing off of our MC is pretty pointed out, like these issues. And they so, you know, would the court have, you know, been in that mindset to address these more generally applicable issues? Have they not seen amicus briefs? You never know,

Tim Kowal 55:51
you know, you want to give them a menu of options, right? You don't want to give them the whole spaghetti dinner in your one brief. But but if they, if they have an appetite for it, let them reach for one of the other briefs.

Sean Brady 56:00
Exactly. Exactly. That's

Tim Kowal 56:02
a good way to put it. Also, on the subject of amicus briefs, I listened to an appellate seminar recently, and they were talking about ethical issues of disclosure in amicus briefs. And I thought to myself, you know, there's a there's a rule you have to disclose what your interest is, and and some of these other other ethical issues are, you know, if you, you know, if you're, you know, do you have to disclose who the if you're working for a nonprofit or writing for a nonprofit, do you have to disclose who the funders are of the nonprofit? Maybe they you know, what are they're interested they have, you know, is someone have some skin in the game here? And I got, I thought to myself, yeah, sure, everyone. Everyone's concerned about Kui Bono, you know, who who benefits who profits from from a case? But then I thought, you know, these are just briefs, there's legal briefs, they're just arguments, who's scared of an argument, you know, even if someone was given skin in the game is making an argument. It's just an argument, you can accept it or reject it. I wonder if you have thoughts about that? Maybe? You know, yeah, no, con,

Sean Brady 57:00
I hear your I think that there's potentially arguments both ways. I think the rules trying to prevent is two things. One, just a very deep pocket being able to find just a ton of briefing and get around the the limitation, like you said, that doesn't address your point of like, so what it's just new arguments, the court can reject it or not, but you know, that there is some to knowing the source of the argument as well, to sort of understand its its influence. But the other issue, I think, is you have interested parties, which I guess is sort of the same thing, like these, and these gun control groups will advise the government on as their counsel on how to how to pass these laws, what laws to draft right in the lower court, though, they're essentially their trial counsel, and then to act as an amicus, which you're not an amicus, you are a party, essentially, or you are Counsel of a party,

Tim Kowal 58:03
then you're just getting around the word count limit. Yeah, it's

Sean Brady 58:06
been around the word count. And again, it shows, you know, look, these people are pretending to be sort of disinterested, no, no, Nick is disinterested, otherwise, they would file a brief but like, you know, they don't have skin in the game. And they do and, you know, I don't know it. I hear you. And it's, it's not something I feel extremely strongly about, but I think there are reasons for the rules, and that's why we adhere to them very diligently.

Tim Kowal 58:34
Alright, well, with that brief light segment, now we're back into the heavy stuff, and we're going to do the lightning round. Oh, Jeff, this is uh, this is your baby.

Jeff Lewis 58:45
Alright, this is where Tim goes and gets his coffee. And we're going to go through some of the most vexing questions that concern a pellet nerds around the world. We're looking for short responses, one sentence one word, do your best font preference century schoolbook. Garamond or something else?

Sean Brady 59:05
I defer to my colleague Anna barber on this I have no preference she certainly would. And I believe it's Jeremy Monder Arrowmont however you pronounce it

Tim Kowal 59:15
alright, if I've noticed that you don't even list times new roman as an available

Sean Brady 59:21
that would probably be my

Jeff Lewis 59:23
nor nor do we give people the option of like using WordPerfect to assemble briefs we don't really discuss that either. You're right. Yeah, I wonder if all these questions here with Sean's get defer to his partner. We'll we'll try one more super important question. Two spaces or one after a period to old school very good. I will go one more pled or pleaded when writing in a brief

Sean Brady 59:49
please play. Les Are you past tense for the past tense? Yes,

Jeff Lewis 59:54
that's it. All right. And the final question for our lightning round. When you argument headings in your brief, all caps, initial caps or sentence case.

Sean Brady 60:07
It depends at where, what heading your T right? The Roman heading caps, then a is initial caps. Then beyond that Nokia. All right. Very nuanced. Once we publish our, a hundredth episode of the show, you'll get a coffee cup that says I survived the lightning round, uh, back to you to, and I also noticed we, you're not asking our guests, if they use the Oxford comma, which role, the only one rule I really care about.

Yeah. That goes without saying I would. Who, who doesn't it?

Jeff Lewis 60:38
I recognize I'm on the losing war on that one.

Tim Kowal 60:42
All right. Well, I think that wraps up, Jeff. So if you have future, if you have suggestions for future episodes, please email us at info@calpodcast.com and in our future episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trail.

Anouncer 61:02
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again.

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No wonder the attorney in Elias v. Jensen (D4d3 Mar. 3, 2022 no. G060098) 2022 WL 620013 (nonpub. opn.) moved to withdraw: her client had “demoted [her] to co-counsel,” the client was filing documents under his own name, and the client had filed a State Bar complaint against her. So it is no wonder the Court of Appeal agreed with the trial court’s order allowing the attorney to withdraw. After all, “if Elias’s allegations against [the attorney] are true...Elias should not be represented by a conflicted attorney with whom he has a present disagreement.”

But why, then, did the Court of Appeal dismiss the appeal on nonappealability grounds, rather than just affirm on the merits?

While there are some good arguments that orders are not appealable, there are also some very good arguments that they are. Specifically, an order granting withdrawal (which is held nonappealable) is not different in kind from an order granting disqualification (which is appealable).

Order Granting Withdrawal of Counsel Is Nonappealable

First, an order granting an attorney’s motion to withdraw is not listed in the general appealability statute at Code of Civil Procedure section 904.1, or in the probate appealability statutes at Probate Code sections 1300 or 1304.

So the court next looked to the collateral-order doctrine. An order may be appealable if it (1) is final, (2) is collateral to the merits of the case, and (3) “direct[s] the payment of money by appellant or the performance of an act by or against him.” (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119.)

Here, the court held that an order granting an attorney's motion to withdraw does not direct any payment of money or the performance of any act, so it is not appealable. (Messih v. Lee Drug, Inc. (1985) 174 Cal.App.3d 312, 315 (Messih); see also Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1236 [order denying motion to substitute one attorney for another is not an appealable order].)

That was all the analysis the court furnished.

But a Withdrawal Order Is Akin to Injunction Orders and Disqualification Orders, Both of Which Are Appealable

It is well-settled that orders granting attorney disqualification are appealable. “The California Supreme Court has given two reasons why such an order is appealable: First, it is an injunctive order (see Code Civ. Proc., § 904.1, subd. (a)(6)); second, it is a final order collateral to the main action.” (Machado v. Superior Court (2007) 148 Cal.App.4th 875, 882 (citing Meehan v. Hopps (1955) 45 Cal.2d 213, 215-217).

When a court issues an order that compels the party to hire a new attorney, that is akin to an injunction, and it is also an act which satisfies the Supreme Court’s Sjoberg test for a collateral order. (Machado, supra, 148 Cal.App.4th at p. 882.)

So how can the courts maintain, with any logical consistency, that orders granting disqualification are appealable, but orders granting withdrawal are not?

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Whether you win or lose a bench trial, by the time you’ve finished you want the judge to give a written explanation for the decision. And the rules say you are entitled to one. But beware: The rule only says you are entitled to a “tentative” decision. Do not be misled into thinking that “tentative” means a final decision is on the way: If you do not request a final “statement of decision,” you do not get one. And on appeal, the “tentative” has all the force and effect of a postcard.

Both parties in Unified Real Estate Investments, LLC v. Thong (D2d1 Mar. 1, 2022 no. B301162) 2022 WL 602251 (nonpub. opn.) wanted a statement of decision. The case was a dispute between shareholders of a restaurant business and the restaurant’s landlord. The trial ended with the shareholders defensing the claims.

Both sides requested a statement of decision. Or at least, they thought they did. After closing argument, the defendants’ counsel orally requested “a statement of decision under CCP 632 and a finding of facts, particularly perhaps to address the issues that were raised in the two trial briefs that I filed.” Then the plaintiff’s counsel said, “Since we’re doing a statement of decision,” proposed some procedural items to be covered, and then offered, “we'd be happy to prepare a closing brief or proposed statement of decision if the Court elects.” The court declined further briefing.

The trial court then gave its oral tentative ruling in favor of the defendants. The trial court also directed the parties to make a written request for a statement of decision if they wanted one. Neither party did, and the court entered judgment without ever issuing a final written statement of decision.

The plaintiff appealed, arguing the lack of a statement of decision was error. But the Court of Appeal rejected this argument, finding neither party sufficiently requested a statement of decision.

The Correct Procedure for Requesting a Statement of Decision

The court provided this helpful statement of the applicable law for requesting a statement of decision:

“ “[U]pon the request of any party appearing at the trial,” the trial court “shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial.” (See Code Civ. Proc., § 632.) Subject to an exception not applicable here, a request for a statement of decision “must be made within 10 days after the court announces a tentative decision.” (See ibid.) “After a party has requested the statement, any party may make proposals as to the content of the statement of decision.” (Ibid.)

“ “The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision.” (Code Civ. Proc., § 632.) A party's failure to specify that the statement of decision should address a particular issue “waive[s the] right to object to the failure of the statement of decision to do so.” (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1292 (City of Coachella).) “[A] general, nonspecific request for a statement of decision does not operate to compel a statement of decision as to all material, controverted issues.” (Id. at pp. 1292–1293; accord, Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1394.)“

The Parties’ Request for a Statement of Decision Was Inadequate Because the Request Did Not Expressly Identify the Material Controverted Issues the Trial Court Was Asked to Decide

the Court of Appeal concluded the parties requests for a statement of decision were inadequate for two reasons. First, the requests were equivocal. Second, the requests did not specify the material controverted issues court was being asked to decide.

The court drew attention to the fact that the defendants four all request for a statement of decision was equivocal. The request was for “a statement of decision under CCP 632 and a finding of facts, particularly perhaps to address the issues that were raised in the two trial briefs that I filed.” (Italics added.) The court seized on the word “perhaps.” and the plaintiffs attorney did not refer to any issues to be decided, whether directly or by reference to trial briefs.

The court reasoned that, given this ambiguity, it was unsurprising that the trial court had asked for a written request specifying the issues to be covered in the statement of decision.

Oral Requests for a Statement of Decision Are Permissible, But They Still Must Identify the Issues to Be Decided

The court acknowledged that an oral request for a Statement of Decision may be adequate. “Be that as it may, a valid request for a statement of decision, whether written or oral, must specify the issues to be addressed. That specificity was absent here.”

The Upshot

Follow these steps—and watch out for these traps—to get a statement of decision:

if the trial is completed in under a day, you must—must— orally request a statement of decision before submitting the matter.
Request a statement of decision in writing within 10 days of the judges tentative decision. (Cal. Rules of Ct., rule 3.1590(d).) When the judge issues a tentative decision, do not be misled into thinking this is your statement of decision. Also do not be misled into thinking the statement of decision will be forthcoming. (Judges can play nasty tricks with this.)
Your request for a statement of decision must identify all of the principal controverted issues you want the judge to decide. This means only ultimate facts, not evidentiary facts. If you overdo it with a blunderbuss request, the court may be authorized to simply ignore your request entirely.
Your request for a statement of decision also must include proposed findings on each of the issues. Again, if you omit this, the court may be authorized to ignore your request entirely.
Once you receive the court's final statement of decision, file written objections concerning any omissions or legal errors in the statement. If the Court of Appeal concludes you did not give the trial court sufficient opportunity to correct the errors, any defects in the statement of decision may be deemed waived.

And here are some belt-and-suspenders measures to consider:

Take care when preparing your statement of controverted issues at the outset of trial period this is your first draft of the request for statement of decision.
Submit a written request for a statement of decision at the outset of trial, and include the issues in your statement of controverted issues. While this is not strictly necessary, it cannot hurt.

If a statement of decision will be important in your case, it may be worth considering retaining an appellate specialist to fuss over these problems so that you can focus on winning your trial.

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In their article calling for relaxation of the no-citation rule, appellate attorneys David Ettinger and Dean Bochner point to this interesting quote explaining how much effort goes into a published appellate opinion: it “is an exacting and extremely time-consuming task” and “few, if any, appellate courts have the resources to write precedential opinions in every case that comes before them.” (Hart v. Massanari (9th Cir. 2001) 266 F.3d 1155, 1177.)

But doesn’t every case deserve the same quality of consideration?

How would the reasoning be different if Congress were to say, “you know, this bicameralism and presentment business is an exacting and extremely time-consuming task, and really, what legislature has the resources to go through all that for every important policy matter that comes before it?”

(Of course, a federal court would respond: “No one is saying you cannot cite to unpublished cases. We just don’t like it very much, is all.” But California Rules of Court rule 8.1115 absolutely prohibits any citation to unpublished opinions.)

Watch the clip here.

This is a clip from episode 22 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.

An impassioned and personal closing argument is often your chance to persuade the jury. But get too personal and you could commit a “golden rule” violation (i.e., you cannot ask the jury to “put yourself in my client’s shoes”). So hats off to the plaintiff’s attorney in Chen v. Herschel (D2d2 Mar. 2, 2022 no. B306200) 2022 WL 610658 (nonpub. opn.), who deployed a clever rhetorical device that put the jury in the plaintiff’s shoes, yet avoided a “golden rule” violation. The result was an $18 million verdict for the client.

In Chen, the defendant drove her truck into the car driven by plaintiff and her mother. The collision crushed the plaintiff’s mother, causing internal injuries that resulted in an agonizing several moments before her death. The defendant first drove away, then apparently returned, and dragged the mother several feet away, while the plaintiff, immobilized by the accident, pleaded with the defendant to stop. The mother was later transported to the hospital where she died.

The plaintiff’s closing argument, as you can imagine, sought to hit some emotional notes, and this drew a “golden rule” objection from the defense counsel.

What Is the Prohibition on “Golden Rule” Arguments to the Jury?

Before turning to the plaintiff’s arguments, it may be helpful to know what counts as a “golden rule” violation. As you can imagine, the difference between a good persuasive, passionate appeal to the jury, and an improper “golden rule” violation, can be subtle.

First, here is the statement of the rule against “golden rule” arguments: "`The appeal to a juror to exercise his subjective judgment rather than an impartial judgment predicated on the evidence cannot be condoned. It tends to denigrate the jurors oath to well and truly try the issue and render a true verdict according to the evidence. (Code Civ. Proc., § 604.) Moreover, it in effect asks each juror to become a personal partisan advocate for the injured party, rather than an unbiased and unprejudiced weigher of the evidence. Finally, it may tend to induce each juror to consider a higher figure than he otherwise might to avoid being considered self-abasing. (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 484-485; see also Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 319-320; Zibbell v. Southern Pacific Co. (1911) 160 Cal. 237, 255.)" (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 765.)

Here are some examples of what constitutes improper “golden rule” arguments: “Examples of improper argument are: "This life of independence is gone. What it would be worth to you? He continued . . . if you concern yourself with this pain and you could have a moving joint in your body that was constantly moving and every time you moved your major muscle it wouldnt move, what would you pay as an individual to free yourself from that pain, $5 a day, $10 a day? I wouldnt take $150 a day—$250 a day—so lets keep this in mind when you jurors sit down and discuss the plaintiffs case. " (Id. at p. 484.) " How would you like to sit in that chair for eight hours with a non-unionized femur for ten dollars a day? Would you do it? . . . This reference passed without objection, as did a final appeal in which counsel stated, Someone comes up to you with a handful of diamonds and says, "This is worth $500,000.00." Would you take it and would being crippled for the rest of your life be worth it? "" (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 483-484.)

These examples suggest the touchstone for a “golden rule” violation has to do with asking the jurors to put themselves in the party’s shoes, and to render a verdict in favor of the party as though the jurors were rendering a verdict in favor of themselves. To bring it back to the moral of the “golden rule,” a jury is not supposed to do unto others as the jury would have others do unto them. (Which is pretty counter-intuitive, and tends to underscore the otherworldliness of serving on a jury and rendering judgment on others.)

Counsel’s Clever Rhetorical Device Put the Jury in the Plaintiff’s Shoes Without Violating the “Golden Rule”:

As we just saw, making a lot of “how would you feel?” arguments to the jury is improper and violates the “golden rule.” But that is just what counsel did here, and yet got away with it. Here’s how.

Here is what counsel argued, and I am going to boldface the clever rhetorical device: “I—I've been offended by—to the idea that for the memory of seeing her mother die, for seeing her rolling on the ground, for seeing her body crushed, that that memory should only be reimbursed for five to $10,000 .... [¶] I mean, let's just think about what's being traded there. This is as if somebody went up to [the plaintiff] Yijing Chen and said, well, I will exchange with you $10,000, but in exchange for that we want to be able to implant a memory in your brain and that memory is going to be the image of your mother being crushed and her being—moaning and gurgling and everything that you saw, and you're going to have that image in your brain every night when you close your eyes, and you're going to have that image in your brain for the rest of your 51.2 years, and you're going to—it's going to cause you to cry, it's going to cause you to get angry, it's going to cause you to think differently about yourself ....”

So counsel stood in front of the jury, and the jury heard counsel reference memories of “your” mother being killed 16 different times, and to consider what that would be like. Wasn’t this a “golden rule” violation?

No, held the court. Why? Because although counsel said “you” and “your” 16 different times, due to counsel’s shrewd rhetorical device setting up a hypothetical involving the plaintiff, all the “yous” and “yours” technically referred to the plaintiff. Not to the jurors.

A very effective argument. For which the jury returned a verdict of $18 million.

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Here are two ideas for getting round the “no-citation rule” that prohibits California attorneys from citing unpublished cases. But careful! Only one of them is actually a good idea.

First, I ask appellate attorneys David Ettinger and Dean Bochner if attorneys may reference an unpublished case the same way a recent published case did: by naming the appellate district that issued the on-point unpublished case. (Bad idea, don’t try it it. I realized it was probably too mischievous when I couldn’t even say it with a straight face.)

Second, simply crib the persuasive reasoning of the unpublished case. (This gets a thumbs-up from both David and Dean and co-host Jeff Lewis.)

Watch the clip here.

This is a clip from episode 22 of the California Appellate Law Podcast. Listen to the full episode here.

Here is a question I did not realize had not been answered about appellate stays and attorney-fee awards. When the losing party appeals an order that gives rise to a motion for fees, does the appellate stay deprive the court of jurisdiction to award fees? In civil cases, the answer is no. But in probate cases, we do not have an answer one way or another.

And we still don’t, because the Court of Appeal ducked the question In Conservatorship of Bower (D4d3 Feb. 25, 2022 no. G059112) 2022 WL 571011 (nonpub. opn.).

In that conservatorship case, the probate court found the conservator had incurred expenses in bad faith. The court ruled the conservatee’s widow was entitled to attorney fees, the amount to be determined by subsequent motion.

So far, nothing uncommon (except a court finding a conservator to have acted in bad faith!).

But then the conservator filed an appeal of the order on the accounting, including the finding of bad faith giving rise to attorney fees. The conservator then argued that, based on the appeal and the resulting appellate stay, the trial court lacked jurisdiction to award fees.

An Appeal of a Judgment Does Not Stay the Trial Court’s Jurisdiction to Award Attorney Fees in Civil Actions:

If this were an ordinary civil appeal, that argument clearly wouldn’t work. As the Bower court noted, the appellate stay statute, Code of Civil Procedure section 916, “definitely does not stay a postjudgment award of attorney fees. (See Korchemny v. Piterman (2021) 68 Cal.App.5th 1032; Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368, superseded by statute on other grounds; Nazemi v. Tseng (1992) 5 Cal.App.4th 1633, 1639, superseded by statute on other grounds; Silver v. Gold (1989) 211 Cal.App.3d 17, 26; Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 487 [attorney fees incidental to merits of matter on appeal]; In re Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1140.)”

But in Probate Actions, An Appeal of a Judgment Might Stay the Trial Court’s Jurisdiction to Award Attorney Fees (But Probably Not):

But in probate appeals, there is a different appellate-stay statute: Probate Code section 1310. Section 1310 subdivision (a), provides, “Except as provided in subdivisions (b), (c), (d), and (e), an appeal pursuant to Chapter 1 (commencing with Section 1300) stays the operation and effect of the judgment or order.” None of the four subdivisions referred to in subdivision (a) applied here.

There are no cases applying section 1310 to postjudgment fee orders in probate cases. The court went on to analyze the text of section 1310, indicating the stay only applies to orders in Chapter 1, starting at section 1300, and include fiduciary accounts, acts, and expenses, and orders affecting a guardianship, conservatorship, estate, power of attorney, and trust. The court concluded: “None of these sections includes a postjudgment award of attorney fees as an appealable order. It does not appear to us that the stay of section 1310 applies to such an award.”

But then the court stopped short. The appeal of the underlying accounting award and finding of bad faith had by this time been affirmed. So the court ducked the section 1310 stay question: “We need not decide this question, however, because, with the issuance of our opinion regarding the judgments on the underlying accountings, the issue has become moot. Even if Andrea is correct, “an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.” (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.)”

The court explained that “The most we could do with respect to this order, even if Andrea is correct, is to return the order to the probate court to be reissued – a pointless exercise.”

Comment: I disagree that it would be a “pointless exercise.” At a minimum, postjudgment interest has been accruing on the fee award since before the appeal of the underlying order was affirmed. If the appellant is correct that there was no jurisdiction to enter the award before affirmance, then that postjudgment interest also is void.

I can’t think of reasons why post-order fee motions in probate should be subject to a different rule than in civil. (But I had not given it any thought before seeing this case.) In both cases, fee motions are collateral to the issues in the underlying judgment, so the trial court has jurisdiction to rule on them. The court seemed to be leaning this way before indulging the principle of parsimony and avoiding the question. I think the court should have decided it.

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Reviewing some 9th Circuit and California appellate cases of note from early 2022, appellate specialists Tim Kowal and Jeff Lewis discuss these juicy issues:

💡 Can the 6th Amendment right to speedy trial be indefinitely postponed due to Covid? (Yes, if the defendant is not incarcerated, says the 9th Circuit in United States v. Olsen.)

💡 Can the statutory right to a timely conservatorship jury trial be waived? (Yes, even if the judge kind of pushes you around, so stiffen up that spine!)

💡 Can the Church of Scientology compel arbitration of a dispute arising after members leave the church and allege Scientologist actor Danny Masterson rapes them? (No, but the Supreme Court had to step in and tell the Court of Appeal to take a little more time with the writ petition.)

💡 Can a pre-litigation demand cross the line into extortion, and thus fail to qualify for protection under Civil Code section 47’s litigation privilege? (Yes, if the attorney threatens to disclose the allegations to blow up the defendant’s potential merger.)

Cases discussed in this episode:

United States v. Olsen, and Tim’s write-up on Olsen.
Tim’s write-up on Conservatorship of Joanne R. affirming the waiver of the right to a speedy jury trial challenging a 12-month conservatorship even though the trial court would not provide a jury until month nine.
The Scientology arbitration case of Bixler v. Superior Court (Jan. 19, 2022, B310559).
The just-barely-extortion case of Falcon Brands Inc. v. Mousavi & Lee, LLP (Jan. 27, 2022, G059477).
Tim’s write-up of the recent Cal. Supreme Court and Court of Appeal cases forgiving untimely appeals (In re. A.R. (2021) 11 Cal.5th 234, and In re B.P. (D5 Jan. 26, 2022 no. F082863) 2022 WL 224811 (nonpub. opn.).)

Transcript:

Tim Kowal 0:05
I'm just gonna have to hold back a guffaw whenever I hear that the appellate timelines are jurisdictional. Welcome to

Anouncer 0:13
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 0:27
Welcome, everyone. I am Jeff Lewis.

Tim Kowal 0:30
And I'm Timkowal, California Department of podcasting license under review. 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 are appellate specialists, and we split our practices evenly between trial courts and appellate courts. We work directly with trial attorneys to prepare cases for Trial and Appeal. And in this podcast, we offer some of that appellate perspective on various issues that arise both in the trial court and appellate court.

Jeff Lewis 0:58
Welcome to Episode 25 of the podcast.

Tim Kowal 1:02
Yeah, and like the last time we did this, Jeff, we've we've had several guests on, and we've had a lot of great, great conversations. But there have also been a lot of great recent cases of note that we have not had time to get to. So we thought we would share with our podcast listeners some interesting cases that they ought to know about. And you were kind enough to let me go first, although you're always jockeying for the last word, you usually free to give me the first case. So the first case that I wanted to talk about is a Sixth Amendment case. Now usually, Jeff, we've we pretty much talk exclusively about civil cases. So this is a criminal case, but it COVID delays in the court in a criminal prosecution. And I thought it was just so interesting, with a majority opinion and a couple of different concurrent occurrences in the ninth circuit on the denial of on bonk review, and also a dissenting opinion, all with different perspectives on the right to a jury trial in COVID. In COVID, territory, so Olson, in this case, the criminal defendant is a doctor, he's being prosecuted for selling opioids, and Olson, when a critical factor is that all sudden the prosecutors had stipulated already pre COVID to some eight different continuances of the trial. But when the pandemic hit, of course, Olson decided he's going to capitalize and invoke his right to a speedy trial, the prosecution filed a motion for a continuance under the speedy trial Act, the prosecution argued that unless there was a continuance jury trial would be impossible. That's one of the standards under the speedy trial Act is that if a continuance is required, and otherwise it would be impossible to to hold the jury trial that is a good cause ground to continue the trial beyond the ordinary 70 day limit. Under that act, Judge, the district judge Cormac Carney denied the prosecution's motion for a continuance. The judge noted that look, right across the street here, there's orange county government bureaus open, there's, uh, you know, other courts are, are, are pushing ahead in the best way they can. There's no reason that the court couldn't host a jury trial. And Judge Kearney dismiss the action with prejudice, felt judge felt that the constitutional violation here was was so important that he needed to put some teeth on to the remedy here. And it's a rare

Jeff Lewis 3:23
instance, where a prosecutor is the one who files the appeal is normally it's the criminal defendant that files an appeal, right?

Tim Kowal 3:31
Yeah, yeah, this was a rare procedural posture. So in a panel decision last April, the Ninth Circuit reversed, and on January 6 2022, the Ninth Circuit denied on bonk review, the majority in Jeff, this is what first really stuck out to me. The majority opinion had no analysis on the sixth amendment. It reference the Sixth Amendment, but then at reference at the speedy trial Act was Congress's effort to enforce the Sixth Amendment. But, you know, we have three branches of government and the judiciary has an independent constitutional duty to interpret and enforce the Sixth Amendment. So even if even if something is permissible, under the statute, it might or might not be permissible under the Constitution. And so I worked through the majority opinion, I worked through the concurrence opinion, a chief judge or Gulia, and also no analysis of the Sixth Amendment. So by this time, by this point, Jeff, I'm hopping mad. I'm thinking that there is a gross constitutional oversight here by the court, but finally I simmer down after I read judge Buma taze concurrence, and he not only does a sixth analysis, but he he does a really excellent historical overview of the the right to a speedy trial tracing all the way back before the Magna Carta. And he traces through precedent and I was satisfied after reading judge Booma taze concurrence that that the Sixth Amendment was not offended here by the by the denial or rather by the, by the delay of this speedy trial, the touchstone here, Judge boo Matej pointed out under the Sixth Amendment right to a speedy trial is to prevent a criminal defendant from being incarcerated while having to wait around a long time for a speedy trial. And Dr. Olson here was not incarcerated. He had been he'd been out free. And then another relevant factor was the fact that there had been some eight voluntary continuances of the of the trial justice judge Collins and dissent joined by Judge Forrest reason that the Sixth Amendment still was given to short shrift by the majority, which I think cannot be denied because the majority didn't give any analysis to the sixth amendment. And that although the pandemic is serious, the right to a speedy trial is too important to be subjected to open into delays like the the delay in the end was some 14 months, as pointed out in the concurrence. And and also pointed out as Judge Carney had that there are several other nearby government institutions that were open and no real reason why why the Federal Courthouse also needed to be needed to be shut down whenever everyone else nearby all the other government institutions nearby were able to, to move ahead. And there was one more bit that I skipped over back in the trial court, Jeff that I wanted to, I was taken aback when reading this. So here's here's what happened after the government filed its motion for a continuance. And Judge Kearney denied it the next step then, because at this point, okay, we got to hold the jury trial. But by this time, the central district judges had already all, you know, had a conference and and issued an order that there were going to be no jury trials. So judge Kearney knew there was going to be no jury trial, regardless of the outcome of the of the government's motion, Judge Carney had to go through the motions and send a formal request to the Chief Judge, we're ready for our jury judge said, send them down. And the judge said, when you talking about you know that we're not doing any jury trials, and the that was one of the factors that the Ninth Circuit really didn't like that it looked like Kearney appeared to be using this case, as as a way to pick a fight with his colleagues over whether and how long the court should be shut down. Ninth Circuit really did not like that. And that was the the main thrust one of the main thrust of the of the majority. And the other concurring opinion.

Jeff Lewis 7:23
You really think that was a deciding factor that apps and going through those theatrics, that maybe this decision would have come down that this way?

Tim Kowal 7:31
I think I think the decision would have been decision would have been the outcome would not have been different, make the tenor of the of the opinions would have been different. But I think what what really broke this case was the fact that Olson was not incarcerated, or rotting away in jail waiting for his trial, and the fact that he had sought and received a continuances prior to suddenly invoking the right to speedy trial.

Jeff Lewis 7:53
Yeah, interesting. You know, 14 months doesn't seem that long to me. And I wonder, you know, COVID is gonna be around for a while coming in waves. And I wonder if in later stages of COVID, if a 14 month delay will how this court might treat it in later. COVID stages.

Tim Kowal 8:10
Yeah. You had mentioned another another point about whether should should Olson's prior continuances be a factor in continuing a jury trial under the Sixth Amendment?

Jeff Lewis 8:22
Yeah, I don't, I don't understand why that is a factor a fact that either the prosecutor or the defendant wanted and they both agreed and stipulated an open court to delay the trial during a certain time and the proceedings shouldn't have any relevance. In my opinion, things can change, especially with COVID, and people's view of the ability to be free in their health, etc. And I don't know that I would have found the prior continuances to be particularly relevant.

Tim Kowal 8:50
I have the exact same thought when I was reading this. And I thought about it from the from a waiver perspective, you know, a waiver has to be a knowing and voluntary act. And the fact that it may be maybe a factor in waiving your right to a jury trial, I think is it's got to be chilling in the future for any other defendant who is considering continuing a jury trial. Gosh, am I my waiving my right to a speedy trial? Because as you said, you know, if things do change, what if you suddenly, you know, get to thinking, Gosh, I wonder my witnesses or their memories are gonna fade or they're in danger. They're gonna they're gonna pass away. I need my I need that trial now. So you thinking changes and when you're a criminal defendant, I gotta. I gotta imagine it's your thing. Your thinking probably changes on a daily basis. Well, so as I mentioned, Olson is a criminal case. But here is a related probate case where there was a right to a jury trial involved. It's a public published decision in conservatorship of Joanne R. It's a Second District Court of Appeal out of Los Angeles. The appellant in that in that case was put under a year long conservatorship and Under the petrous short act governing conservatorships, an appellant is entitled to a jury trial to commence within 10 days of demand. So talk about a speedy trial in that jury trial, the the conservatee can challenge the establishment or extension of a conservatorship. That's Welfare and Institutions Code 5350. So the appellant invoke that right, but here's what the trial judge said about the appellants, right to commence the trial, a jury trial within 10 days, quote, if you'd like to have a court trial with a judge making the decision, we can do that today. If you would like to have the jury trial, well, we can do that as well. But we won't be able to do it today. We can schedule that in November. And bear in mind, this is February. So this is nine months away. And it's only a 12 months conservatorship so she's got to wait, wait out 75% of this entire period before she can even start a jury trial to contest it. the appellant responds, I would prefer a jury trial, but I don't want to wait until November. And then after another short colloquy, she says I think I want to go ahead today and do it, ie with a bench trial waiving her right to a jury trial. So the question on appeal was, and then she she loses just takes up an appeal. And the question on appeal was, was that a voluntary waiver of her right to a jury trial after she was told that you can have the jury trial, but you got to wait nine out of the 12 months? And the District Court of Appeal said yes, it is a voluntary waiver, although the court did have some reservations about it. And I thought that was the wrong result. If if my thought was that if the legislature affords a right, then it ought to honor the courts ought to honor it. The fact that the pandemic at that time had made had made it difficult to comply with that statute to me is not an excuse. The legislature could have modified it. It's had two years to do. So I get it this time. I think it had had a year almost to do so. And it didn't the the governor had been wielding executive emergency powers it could have done he could have done something about it. Presumably the Judicial Council maybe could have done something about it. Unless and until you know, someone does something to abrogate the right. I think it's the court, the courts duty to enforce it.

Jeff Lewis 12:10
Yeah, interesting. I'm just kind of surprised by this. Every few weeks, we get an order from the LA Superior Court before that we would get orders from the Judicial Council extending certain deadlines for criminal cases, juvenile cases. And I'm really surprised somebody didn't include these conservatorship cases in the extensions. And I think that that should have applied to this kind of circumstance. But the fact that they didn't, I think just means people weren't paying attention when building out the extensions.

Tim Kowal 12:39
Yeah, that could be and and maybe they don't feel they they need to be that thorough, because they figure out how the courts going to go and bend the rules as needed if we miss anything. Yeah,

Jeff Lewis 12:51
yeah. Or, you know, maybe, if you're the kind of person seeking to compel a full jury trial in the throes of a pandemic. I wonder if that fact could be used to determine whether or not you're competent whether the conservatorship should add.

Tim Kowal 13:10
That would be harsh.

Jeff Lewis 13:13
Okay, it just didn't want all right. The next case I want to discuss is the case called Bixler V. Superior Court. It's not published, but it comes out of the second district Division five authored by Justice and I found it interesting because involves the Church of Scientology, an arbitration clause and the right of persons to leave their religion. And this decision arose from cases or claims of harassment made by former members of Scientology, and the plaintiffs allege that actor Danny Masterson had raped them, and that the Church of Scientology harassed the victims for blowing the whistle on this crime, and they filed a lawsuit. The lawsuit wasn't for the rape, it was for the harassment by members of the Church against these former members of the church. When the plaintiff filed this lawsuit, and Masterson for harassment, the church moved to compel arbitration. And this decision is fascinating reading about the inner workings of the church. Apparently, all church members apparently sign a agreement to resolve all disputes according to me read from the decision solely and exclusively through Scientology's internal ethics, justice and binding religious arbitration procedures. And the trial court enforced this arbitration clause and compel these plans to go to arbitration. But that wasn't the end of the story. The players then filed a petition a writ petition to overturn the order compelling them to go to arbitration initially denied by divided opinion of Division five, and that denial was premised on the Court of Appeal, finding that the players had an adequate remedy by way of an appeal if the court ultimately entered an order confirming an adverse arbitration award. But these plaintiffs then went up to the Supreme Court and in May of 2021, the Supreme Court granted review transfer it back to the Court of Appeal to think again. And this appeal this appellate decision on this remand back to the Court of Appeal is the subject of Justin Rubens writing, which I enjoyed reading it summarizes the issues in play and the conflicts between first amendment right religion, and, you know, the general judicial policy in favor of enforcing arbitration clauses. Here's justice Rubin summarize the case. He said, This case involves both petitioners first amendment rights to leave a faith in Scientology's right to resolve disputes with its members without court intervention, when applied to a dispute that arose after petitioners left the faith in which can be resolved on neutral principles of tort law. We find petitioners right to leave the faith must control. And I'll put a link to the case show notes, but I thought this was an example of very good writing and analysis. And I guess the lesson for the churches if they want an enforceable arbitration process, they need to use AAA or JAMS or some other non religious tribunal for their dispute resolution process.

Tim Kowal 16:05
Yeah, that's interesting. I have some mixed feelings about that. I wonder, Jeff? I haven't read the opinion. Did it have any talk in there about you mentioned that one of the one of the there was a there was a countervailing analysis, on the one hand, the right to leave a faith, on the other hand, the right to enforce ADR provisions? I wondered if the if they hadn't been leaving the faith. If they if they were still in the church. I take it this clause would have been found enforceable.

Jeff Lewis 16:33
That and the fact that the harassment occurred after they left, you know, it's an interesting question about whether or not if the harassment had occurred while they were members of the church. But then they left would they be compelled to arbitrate? I suspect the answer's yes. Yeah.

Tim Kowal 16:47
I wondered even if they were still in the faith. Could they have could the the plaintiffs have have argued that this was a contract of it? He I would I would guess just just I don't know much about Scientology. But from what I've heard that probably a heavy handed provision, I doubt that they would negotiate that point. Do you have a right to join us without having to be subjected to a content to a ad ADR provision, especially a this is a pretty extraordinary ADR provision. That's like you mentioned it's not just like a triple A or jams. This is a What did you call it the ethical and spiritual religious? tribunal? Yeah,

Jeff Lewis 17:23
the internal ethics, justice and binding religious arbitration procedures of Scientology? Yeah, I'm guessing they don't have published rules for the Scientology rules. Yeah, it'd be interesting. I would love to know how these arbitration agreements are presented, disclosed to members, you know, in large neon writing or teeny tiny print. It's interesting conflict between Yeah,

Tim Kowal 17:43
yeah, cuz it's not only the the ADR aspect of it, but it's it's the it's almost like a choice of law provision built into it. I mean, who's whose standards rules and laws are, are binding here? Do you even get to cite California law in that particular religious tribunal? Or is it is a completely different code developed by the Church of Scientology?

Jeff Lewis 18:06
Yeah, a judicial review of an arbitration award in the Superior Court be fascinating to read. I guess we won't see that an opportunity to do that in this dispute. And then the next case I want to talk about was an anti slap case. I love anti slap cases, and involves an attorney who wrote a settlement letter before filing a lawsuit. The case is Falcon brands vs. mazovian. Lee January 27 2022, authored by Justice Goethals and it's a published decision. And this is an interesting one, because it has a kind of a crossover between ethics and the anti slap and Civil Code section 47, which are three of my favorite issues. This is an appeal for an order granting an anti slap. It presented the question of when do settlement communications before a lawsuit is filed? Cross the line from legitimate legitimate settlement conversation to extortion. And in the context of an anti slap motion communications that constitute extortion or outside the protection of California anti slap law. The rule established by the Supreme Court 2006 Was that communicated there conceded to be illegal or legal as a matter of law are out of bounds for anti slap motions, you cannot file an anti slap motion over such communication. And this dispute grew out of a wage and hour claim by a terminated employee the employees attorney contacted the former employer of his client, Falcon, and additional laying out some Wage and Hour violations and wrongful termination of a whistleblower the attorney threatened to disclose to an entity seeking to merge with Falcon a third party to Falcon had violated the law. And it was the attorneys threat to disclose harmful information to a potential merger partner Falcon. That was the focus of the appellate court's decision. Was the communication, merely legitimate settlement discussions that routinely happened before lawsuits was covered? By the anti slap law and perhaps Civil Code section 47, or was this illegal extortion not protected by either anti slap law or Civil Code section 47. Ultimately, the court found it was extortionate that plaintiff's counsel here had threatened to disclose embarrassing information to a third party. And it's a good cautionary tale for plaintiffs about temporary pre lawsuit settlement communications. But I have to say, you know, I file slot motions a lot once or twice a month, and frequently the plaintiff invokes this illegal activity exemption, but I think it rarely applies. And I think with this published decision, I'm going to see this argument raised more and more in opposition to anti slap motions, it might embolden plaintiffs who are opposing slap motions to invoke this narrow action exception too often, in my in my opinion. What about you, Tim?

Tim Kowal 20:48
Yeah, the The distinction is never been clear. In my mind, as I mentioned to you, after looking at this case, I haven't read it in detail, but I tried to I tried to read the part the analysis about the extortion and what what always confuses me is that it points to one thing that the that the attorney here, Mousavi could have done. You know, she was free to publish the allegations to this third party. If she had done that that wouldn't have been actionable, necessarily maybe an intentional interference with contract or something like that. But the threat to do to do it, even if she didn't wind up doing it, that itself is illegal, so threatening to do something that you're otherwise lawfully entitled to do is unlawful. For can be Yeah, the threat

Jeff Lewis 21:34
coupled with a demand for money. I mean, the thing that bothers me about this case is it seems to me opens the door to the fact that sometimes before lawsuits are filed, there's a communication saying, Hey, would it be better to avoid all this being aired out in public? Let's just settle a case. And there's an implied threat there of Let's settle or the public's going to learn of your private business? It seems to me just about any time there's a pre lawsuit communication where embarrassing information is at issue, there's an argument here that the implied to make information public could be subject to this illegality exemption makes me a little discomfort now

Tim Kowal 22:12
uncomfortable. Yeah, well, is the is the line, at least in this case, the fact that she was threatening to communicate to a third party.

Jeff Lewis 22:21
Yeah. And it was explicit. Yeah.

Tim Kowal 22:25
Yeah. So it was a so even though maybe, as I mentioned, it's something that she she could have done absent the threat using that as a bargaining chip to to to get a more favorable settlement is just too icky. It's outside of it's contrary to public policy at that point. unlawful. Yeah. Don't do anything icky.

Jeff Lewis 22:45
Good rule of thumb.

Tim Kowal 22:48
Alright, so changing gears a little bit, Jeff, this is a recurring point of appellate procedure that we we talked about quite a bit the notice of appeal. So here's a here's a case that demonstrates that an appeal and untimely appeal. I mean, that may be excused in a dependency case. If you have grounds of ineffective assistance of counsel from ground that's not in the in the appellate statutes. But so so here's the here's a setup to it. Last year 2021, the California Supreme Court issued an opinion in in re AR, and in that in in re AR the Supreme Court held that an untimely appeal is not an absolute bar to appellate jurisdiction, at least in juvenile dependency cases. The reason that inrae AR was surprising was because until that time, a uniformity of California case ID cases had held that an untimely appeal was an absolute bar to appellate jurisdiction. But here's how the Supreme Court got around that in re AR had noted that there was a statutory right to competent counsel. And there was also a procedure for habeas and dependency proceeding which had been invoked there. So the court would let slide the four day untimeliness it was only laid by four days, Jeff, no big deal, right? If you've got a got a couple of statutory hooks to get around a mere four day untimeliness, we'll go ahead and use it. This recent case Court of Appeal case goes quite a bit further than that, I think in an alarming way. That recent cases in re BP, it's out of the Fifth District Court of Appeals, it's not published. And in that case, the delay the untimeliness, was by four months, not four days, four months. Also the appellant didn't invoke the habeas procedures, but the still the court still allowed the untimely appeal. Again, based on the right to competent counsel, because the appellant had had told her attorney that she wanted to appeal and the the attorney just forgot or didn't get around to it. The court said well, we're just going to let it slide. So as I had said before in discussing inrae Our courts are going to continue citing the fact that the proposition that notices of appeal are jurisdictional and the courts are prohibited from considering untimely appeals. But I think with this if this trend of decisions continues, we wonder whether they're on the level when they keep calling notices of appeal jurisdictional.

Jeff Lewis 25:18
Yeah, well, let me out. Was BP a dependency case?

Tim Kowal 25:22
Yeah. Also a juvenile dependency case?

Jeff Lewis 25:23
Yeah, I I'm not gonna hold my breath to see this expanded outside of the dependency case context, I suspect in our world of civil and sometimes Criminal Appeals, that the hard line on appellate jurisdiction is going to be described as jurisdictional. I agree with

Tim Kowal 25:41
you, I just I'm just gonna have to hold back a guffaw whenever I hear that the appellate timelines are jurisdictional.

Jeff Lewis 25:51
Okay, let's shift gears to something much more important than the termination of parental rights and whether or not there's jurisdiction to consider late appeals. And let's talk about this pressing issue that came up on Twitter between you, me and Fran Campbell. But whether or not your table of contents in an appellate brief should include a line for the table of contents. Tim, do you do you include that line?

Tim Kowal 26:15
I saw you took some licks for that, Jeff. But it's, it's in my table of contents, too. I was just afraid to say so.

Jeff Lewis 26:23
Yeah, I posted a copy of a recent brief where I added a table of contents. My table of contents.

Tim Kowal 26:30
Yeah, Microsoft Word gives us see it gives it that heading tag that makes it appear in my table of contents. I used to sometimes take it out because it does look, it does look strange, I'll admit, but and I figured I can't remember if I had a clerk mentioned to me that it has to be in there. Or maybe I just I just extrapolated. They want everything else in there. I think they do say that the table of contents and table authorities as to be listed in the table of contents.

Jeff Lewis 26:58
Yeah, you know, I have to say there's a very important analysis. I go through deciding issues like this, and it's what is my paralegal want. And my paralegal tells me, it is handy dandy for research attorneys and justices if they're deep in the brave, to be able to go to the PDF and see that it's bookmarked. And so if it's going to be bookmark, why not at least also include it in the table of contents? That's his justification. And I, I defer to him.

Tim Kowal 27:24
Actually, that's that's an excellent reason for the Yeah, when you're deep in the brief, you can just quickly go to the bookmarks panel, take you right back up to the table of contents, so you can find whatever else you're looking for. Now, that's, that's not only valid, that's persuasive.

Jeff Lewis 27:37
I imagine if you are the kind of person that uses defined styles and Microsoft Word, the style that allows things to be hyperlinked, or in the bookmarks, but somehow excluded for table of contents would be a headache to do.

Tim Kowal 27:52
Yeah, yeah.

Jeff Lewis 27:54
And then you do want to discuss something about headings.

Tim Kowal 27:58
Yeah, I recently saw this I shared by Ross Guberman. The that the some of the more excellent legal writers in in crafting their headers, their headings in their briefs, particularly talking about the statement of facts when they're relating the the factual history of a case, they will draft those headers in the present tense. And I'd never, I'd never thought about it. But that's, that's how I do mine. I'm not sure why I do it. But I'm glad to have that confirmation that that's what excellent writers do.

Jeff Lewis 28:30
Yeah, you probably picked up from reading an effective brief that did that. And it pulls you in a little more if it's current, if you're reading a novel, as opposed to 500 years ago, historical addition. It just makes it more compelling, I think.

Tim Kowal 28:43
But in the actual body of the statement of facts. I use the past tense. Am I doing it right there?

Jeff Lewis 28:49
Yeah, I thought, well, that's how I do it. So you know, you get one a win in the column of Jeff, if that matters. All right. All right. Well, listen, I think that wraps up this episode.

Tim Kowal 29:00
All right, sounds good. If you have any of our listeners have suggestions for future episodes, please email us at info at Cal podcast.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis 29:15
All right, see you next time.

Anouncer 29:17
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Did you know you are forbidden to cite unpublished cases — even when urging the Cal. Supreme Court in a petition for review that there is a split of authority? Appellate attorneys David Ettinger and Dean Bochner note that this use of unpublished cases are routinely employed, but it violates California Rules of Court rule 8.1115.

They explain to Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that the rule should be amended so attorneys need not risk becoming “scofflaws” just to continue engaging in this customary and needful practice.

Watch the clip here.

This is a clip from episode 22 of the California Appellate Law Podcast. Listen to the full episode here.

Legal academic-turned-practitioner Ryan McCarl has some writing tips for lawyers, including one you haven’t heard before: Add more white space to your briefs. And remove clutter generally. And this surprised co-hosts Jeff Lewis and Tim Kowal: those vertical lines on your pleading paper? Get rid of them. They’re unnecessary and they make the reader feel crowded.

(Disclosure: I haven’t mustered the courage yet to remove the vertical lines from my pleading template.)

Watch the clip here.

This is a clip from episode 24 of the California Appellate Law Podcast. Listen to the full episode here.