What do judges think about the Covid impacts on court proceedings? Jury trials were put on hold in the early months, and only resumed in fits and starts. In-person appearances began again last year, but are being tabled again.

At least as it concerns criminal jury trials, you can get a good sampling of judges’ disparate feelings in United States v. Olsen, 21 F.4th 1036 (9th Cir. Jan. 6, 2022), where the Ninth Circuit recently denied en banc review of a panel decision reversing a dismissal for failing to comply with the Speedy Trial Act.

The criminal defendant, Olsen, was a doctor accused of illegally prescribing opioids. The prosecution spent six years amassing evidence before indicting Olsen, and Olsen sought several continuances to review the tens of thousands of pages the prosecution had amassed against him. When the pandemic hit, Olsen obtained another continuance. But but late 2020 when local federal grand jury and county jury trials were resuming, Olsen wanted to get on with it. The district court denied the prosecution’s continuance motion, and because the district court refused to provide a jury, dismissed the case with prejudice.

Tensions run high in each of the four opinions: the majority per curiam decision reversing the district court and reinstating the case, two concurrences by Judges Murguia and Bumatay, and a dissent by Judge Collins. There is too much going on to fairly summarize all of it. So I will only cover a few things that jumped off the page at me:

The majority did not analyze the Sixth Amendment. At all. I was taken aback by this. This is a Constitutional issue. Yes, the Sixth Amendment right to a speedy trial primarily is enforced by the Speedy Trial Act, which is what the majority addresses. Fortunately, Judge Bumatay does address the Sixth Amendment in his concurrence. And quite impressively at that, providing a detailed historical analysis of the right to a speedy trial dating back before Magna Carta. Bookmark Judge Bumatay’s concurrence.
Still, I am alarmed the majority simply skipped any attempt at the Constitutional analysis. Judge Bumatay is, too: “The panel neglected to analyze Olsen's Speedy Trial Clause claim even though the district court's dismissal also hinged on a constitutional violation. See United States v. Olsen, 995 F.3d 683, 691 n.8 (9th Cir. 2021). That was a mistake. What satisfies the Speedy Trial Act may still violate the Sixth Amendment, and vice versa. See United States v. Thirion, 813 F.2d 146, 154 (8th Cir. 1987) (“Sixth amendment challenges receive separate review distinct from the Speedy Trial Act.”); United States v. Gonzalez, 671 F.2d 441, 442 (11th Cir. 1982) (“The rights of criminal defendants under the Speedy Trial Act and the sixth amendment are distinct[.]”); United States v. Bilsky, 664 F.2d 613, 617 (6th Cir. 1981) (There is a “critical difference ... between the dismissals available under the Speedy Trial Act and the Supreme Court interpretations [of the Sixth Amendment right].”).”
On the Sixth Amendment analysis on the right to a speedy trial, Judge Bumatay reasons that “At its core, the Speedy Trial Clause ensures that defendants are not locked up in jail indefinitely pending trial. This enforces the guarantee against arbitrary detention. But since Olsen wasn't detained pretrial and the delay here was not long enough to justify dismissal according to our precedent, no violation occurred. That said, this case would be much different if Olsen had been incarcerated during the COVID-19 pandemic and did not receive the trial he was entitled to under the Constitution. In that situation, the constitutional analysis would be significantly different in my view.” I remain skeptical that a criminal defendant may be deprived of a speedy trial so long as the defendant is not detained. But Judge Bumatay calls this a close question, and I agree with that at least.
The bulk of the analysis in the various opinions has to do with whether the “impossibility” exception is met under the Speedy Trial Act. That is, whether it would be “impossible” to hold a trial without a continuance. The district judge, Judge Cormac Carney, interpreted “impossibility” literally, and concluded a jury trial certainly was not impossible if other local courts are holding them. The panel here rejected the actual-impossibility standard in favor of a more flexible standard.
Interestingly, Bumatay agrees with Judge Collins’s dissent about impossibility: “it was “[c]learly ... possible” to hold jury trials.” Footnote 27: “Perhaps Judge Collins is correct that we should have called this case en banc to fix the erroneous interpretation of the “impossib[ility]” exception. Ultimately, I opted against that route because I conclude that the “miscarriage of justice” exception justifies the delay here.” Judge Bumatay reasoned that “given the lack of government culpability and the relatively short two-month continuance at issue, an ends-of-justice continuance would have been appropriate here.”
What kicked off the high tension was the fact that Judge Carney appeared to be using this case to make a point to his colleagues. With the support of a majority of its judges, Central District had issued General Orders suspending jury trials at the outset of the pandemic. By late 2020, however, Judge Carney had come to the conclusion it was time to resume criminal jury trials. But his colleagues had not. Here is what happened after Judge Carney denied the prosecution’s continuance motion: “The district court therefore requested the Chief Judge of the Central District to summon jurors for Olsen's trial. The Chief Judge promptly rejected this request and explained that the majority of the Central District judges had approved a general order to suspend jury trials....” The Ninth Circuit majority and Judge Murguia did not like these optics at all.
The judges in the majority and concurring opinions all point to the fact that Olsen requested or agreed to several continuances as support for denying his request for a speedy trial by late 2020. Precedent supports using this as a factor. But as the dissent notes, Olsen those continuances related to Olsen’s attempt to process the large volume of documentary evidence the prosecution had amassed. The prosecution had enjoyed six years and all the resources of the federal government to compile and analyze this. I am troubled by the notion that a criminal defendant should have to risk his constitutional rights in seeking additional time to review that evidence. Besides, procedural rights in the Constitution are designed to protect the defendant against government abuse. Not the other way round. To that end, defendants must be allowed to apply them at their prerogative.
Judge Collins’ dissent raises a number of strong challenges to the majority:
The “impossibility” analysis was “bootstrapped” on the flawed General Order: There was no showing that holding a trial was “impossible” except that the Central District had issued a General Order suspending all jury trials. Judge Collins says of this: “The panel's opinion thus treated the General Order itself as an externality that rendered a trial “impossible,” thereby satisfying the statutory standard,” and in so doing, “the panel's analysis rests on a bootstrap argument that permits a wholesale evasion of the impossibility standard.” Judge Collins points to a number of problems with this “bootstrapping”:
First, Judge Collins says: “the “suspending” of jury trials in the General Order was entirely open-ended, even though, under long-settled Ninth Circuit precedent, the Act requires than any “ ‘ends of justice’ continuance be specifically limited in time and that there be findings supported by the record to justify each ‘ends of justice’ continuance.” United States v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990) (emphasis added).
Second, Judge Collins says: “because the General Order is just that—a general order—it does not, and cannot, substitute for the case-specific findings that are required to be made under § 3161 of the the Act. Zedner v. United States, 547 U.S. 489, 509, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) (noting that § 3161(h)(7) “demands on-the-record findings and specifies in some detail certain factors that a judge must consider in making those findings”).
Judge Collins also notes that, while the General Order certainly sufficed in early 2020, by late 2020 more justification was needed, given many businesses and government functions had resumed operations.
Judge Collins also notes that the majority reversed the burden of proof by looking to the criminal defendant to prove holding trials was safe, rather than to the government to prove they were not: “Because the Government was the one moving for a continuance, it had the burden to establish that the continuance was justified under the Act.”

These are very interesting perspectives about one of the core principles of our justice system. While I agree with Judge Bumatay that this is a close call, I am persuaded by Judge Collins’ dissent. At a minimum, the Ninth Circuit should have granted en banc review 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.

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In “lemon law” cases under the Song-Beverly Act, the “prevailing party” is entitled to attorney fees. But what is a “prevailing party”? Is a plaintiff who recovered $1 in nominal damages a prevailing party entitled to attorney fees (and over $680,000 in fees at that)? In a published opinion, the Court of Appeal in Duff v. Jaguar Land Rover North America, LLC (D4d1 Jan. 27, 2022 no. D078100) 2022 WL 246853 (___ Cal.Rptr.3d ___), said no.

Under the well-known “prevailing party” statute Code of Civil Procedure section section 1032, the prevailing party is a plaintiff who received a “net monetary recovery.” That is the standard the trial court seems to have applied (the court was not explicit about it). But the Court of Appeal held that section 1032 does not apply in all cases, and does not apply to Song-Beverly cases. Instead, a “pragmatic” approach applies, including asking who achieved their litigation objectives.

What is a little awkward about the opinion is that the Fourth District Court of Appeal disapproved its own earlier decision where it held the mechanical standard under section 1032 did apply. Which is fine. But then why fault the trial court for following what was, until now, perfectly good law?

The fee order was reversed with instructions to evaluate the “prevailing party” determination based on the correct “pragmatic” standard.

An Order Based on the Wrong Legal Standard Is an Abuse of Discretion:

In this case, the plaintiff, Duff, leased a car, but experienced a lot of mechanical problems. Ultimately, the engine needed to be replaced. Though after that, Duff apparently was happy enough to extend the lease, and then buy the car. He sued anyway. He won, but proved no damages, and received a judgment for $1 in nominal damages. Duff moved for his attorney fees of almost $940,000.

The primary issue the court decided was that, under the Song-Beverly Act, who the “prevailing party” is must be determined under a “pragmatic” approach, and not merely the section 1032 approach based on who achieved the “net monetary recovery.” In this, the court disapproved its own decision in Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139, 1158.

As for the trial court, the opinion notes that “it is not clear the trial court employed either of the two approaches,” because the trial court had reasoned that “once [Duff] proved a breach, he was the prevailing party.” The court also noted that there was no mention of section 1032 or a discussion of net monetary recovery in the trial court’s order. So the Court of Appeal concluded the trial court abused its discretion: “If the trial court applied the wrong legal standard, that is a per se abuse of discretion. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242.)”

Comment: I do not think this is right. “A judgment is presumed correct, and if it is correct on any theory, it must be affirmed regardless of the trial court's reasoning.” (Muro v. Cornerstone Staffing Sols., Inc. (2018) 20 Cal.App.5th 784, 790.) Here, the trial court’s order presumably could have been affirmed under Reveles. A trial court does not abuse its discretion in relying on a published Court of Appeal so long as it is not inconsistent with a subsequent decision of the Supreme Court. The Court of Appeal may disapprove its own prior decision, of course, and reverse on that basis. But that does not mean the trial court abused its discretion in relying on that now-disapproved opinion.

An Appellant May Not Collaterally Attack the Judgment in an Appeal of a Fee Award:

Among the challenges on appeal, Jaguar argued the plaintiff could not have prevailed because he failed to prove two of the elements of his claim. This, the court held, was really an attack on the judgment, not on the fee award: “This argument is a collateral challenge to the underlying judgment. Although Duff appealed the judgment, Jaguar did not. It cannot now challenge the underlying judgment through the guise of appealing the order awarding attorney fees. (See Code Civ. Proc., § 906; Cal. Rules of Court, rule 8.104(b); cf. Estate of Powell (2000) 83 Cal.App.4th 1434, 1439 [“As a general matter, ‘a respondent who has not appealed from the judgment may not urge error on appeal’ ”].)”

The Appellant’s 998 Offer Was Too Vague:

Jaguar also argued Duff’s $1 judgment failed to beat Jaguar’s 998 offer. Jaguar had offered $28,430, “or some high amount that is subject to proof.” Although the latter part was vague, certainly $1 was far less than the $28,430 “floor” amount.

This will not do, the Court of Appeal held. “[W]e do not evaluate the validity of a statutory offer to compromise after trial concludes. Rather, we must evaluate the offer at the time the offeree receives it and determine whether he or she is able to clearly evaluate the worth of the offer.” and here, the 998 offer presented a “moving target” that was “not sufficiently specific.”

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Jeff Lewis and I round up some recent appellate cases, and briefly discuss why California still does not make audio recordings of proceedings like federal courts do. Here are the cases we discuss:

Singman v. IMDB.com, bookmark this published opinion holding that legal propositions in a brief without a citation will be ignored.
Center Street v. Superior Court involving a rare summary affirmance.
Alexi & Ani LLC v. Warren, allowing an attorney sanctions appeal to proceed though the attorney was not listed on the notice of appeal.
Weischadle v. Vo, involving a dissent over whether a court reporter is really needed at oral argument.
In re Purdue Pharma, an OxyContin case in which a bankruptcy settlement was overturned on appeal.
State of California v. So. Cal. Edison, taking the majority view in the split over what kind of collateral orders are appealable.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Transcript:

Jeff Lewis 0:05
hear that sound, Tim. That was the sound of 1000 court reporters unsubscribing from our podcast.

Anouncer 0:12
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis. Everyone. I am Jeff Lewis.

Tim Kowal 0:27
And I'm Tim colwall, California Department of podcasting license number 254709 are in each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. And in this podcast, we offer some of that appellate perspective on various issues that arise in the trial courts and the appellate courts, Episode 23 of the podcast 23. And Jeff, in the last several episodes, we've had guests join us we've had rousing conversations, but they've they've ran a little bit long, and we haven't been able to discuss some recent interesting cases. So we thought we'd compile some of those some of those more interesting cases and share them with our listeners today.

Jeff Lewis 1:20
Yeah, and the first case we want to talk about today comes out of the second district, and represents an extreme enforcement of the procedural rule requiring that a party support every argument in a legal brief, with a citation to legal authority. In Syngman vs. imdb.com, an attorney representing himself in a lawsuit he filed against the website imdb.com. And that's an internet database tracking intimate net database that tracks movies and actor information. Now, the opinion is very short. He wouldn't know many details from the opinion because of how short it is. But I did some digging on the online dockets and found out that imdb.com responded to segments lawsuit with an anti slap motion which was granted and segment representing himself appealed. And in a very short opinion, the second district affirmed by noting that statements table of authorities included only a citation to the statute that authorizes an appeal from judgment and no other legal authorities. And the Court of Appeal invoked the rule that appellants have the burden of demonstrating ere the trial court, excuse me, the Court of Appeal affirmed the order. This seems like the right result, but very extreme to me. And it's enough published decision. And in my experience in pro par improper parties are given extreme latitude by the courts. But this improper was an attorney was not. What did you think about this decision? Tim?

Tim Kowal 2:54
Yeah, I agree with you, Jeff. And you're not lying, that you wouldn't get that information that you you told you wouldn't even know that this is an anti slap case. The the opinion, I think was was less than two pages long, didn't give a hint as to what the case was about no facts, no indication, what the what the appellants legal arguments were. The court just said that, well, there's no authority offered for those legal arguments like they could have been righteous arguments that could have been self evident arguments, but because they were not supported by citations to authority. It was it was summarily the judgment was summarily affirmed, essentially, it was I thought it was it's potentially a dangerous opinion, because it is published, as you mentioned, and there's no context given. So you're so litigants are left with this published opinion, that can be cited, I think will be cited anytime there is a even a self evident proposition in a legal brief that does not is not accompanied by a legal citation, hey, and needs to be ignored and deemed forfeited under the Syngman published decision?

Jeff Lewis 3:56
Yep, I'll be adding this case to my list of authorities to cite for that proposition. Yeah, you're

Tim Kowal 4:01
mischievous authorities. And also on the point that it's a published opinion. I don't see that it meets any of the criteria for publication. It's not a it's not a new rule. Other than, you know, maybe my cynical taking it to further extremes. I don't know that the court intended it to take it to that extreme. It didn't offer any any elaboration on on that point. i But yeah, I thought it was strange that it was published. I'm not sure what the court was intending to signal by publishing it.

Jeff Lewis 4:31
Yes, as a caution to our listeners, be sure to cite more than one case or one legal authority in brief going forward to avoid this result.

Tim Kowal 4:40
Right. And Jeff, you also shared a similar case with me a couple of weeks ago, and I wrote that up on my blog. The case is Center Street development company vs superior it's from November 2021. It's the decision summarily affirmed a summary judgment, but it also but it gave no reasons that I had to pay a fee to download some of the briefing from the superior courts website just to know what the case was about. It was turns out it's a real estate dispute involving some 2700 acres on the Mendocino Sonoma County line just off of Highway 101. Several heirs held an interest in that property and one of the heirs Robert had sold a fractional interest in his capacity as beneficiary of a trust and the transferee moved for summary adjudication to quiet title to the transfer. The trial court denied summary adjudication, finding that the transfers of the other fractional interests were invalid because Robert never actually acquired an interest from the estate and because Robert was barred from transferring under the trust, spendthrift provision. So with all that, the Court of Appeal, thought it was obvious that I like and I quote, obvious that the trial court was wrong. Well, I got confused, just reading off my summary about what happened. I didn't think anything was obvious, but it's safe to say that the trial judge did not think that she was obviously wrong, either. And it's clear that the defendant did not think the judge was obviously wrong. So I think that the owed it to everybody really to offer some reasons for its analysis. And I think the California Constitution agrees Article Six, section 14 of the of our state constitution provides the decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated. And I don't think the opinion and Center Street conforms to this standard if the court met

Jeff Lewis 6:32
another, another extreme extreme outcome. Yeah. We have spoken over the past year about the perils of using the Judicial Council form. For filing notices of appeal, my office tends to use pleading paper, entitled notice of appeal, but there's a judicial council form that gives you checkboxes indicating which part of the judgment or which order you are appealing. And here's an example of another case where an appellant almost lost the right to appeal because they checked the wrong box on the form. The case is Alex and Annie LLC versus Warren, that arises from the fourth Appellate District division one in the case involving appeal of a sanctions award, the appeals brought by the margaritas law firm. And the appeal was fraught with problems, including the factors and attempt to appeal a sanctions order by the wrong party. And the sanctions order was not opposed in writing at the trial level. But what I want to focus on is that the appellant in this matter, filed the Notice of Appeal using the Judicial Council form, checked the wrong box regarding the type of order that was being appealed, appealed from and failed to identify the proper party and the Court of Appeal kind of was forgiving, I guess, was it a forgiving mood and exercise its discretion to liberally construe the notice of appeal by referring to the Civil Case Information Statement filed weeks later, to save the appeal? I don't think party should count on courts doing so in other cases. And this this case represents another good example or good reminder that using the Judicial Council forms can create unnecessary problems.

Tim Kowal 8:08
Yeah, yeah, I agree with you. I don't think that litigants should count on that. But I think I have seen a little bit of a trend of courts being more lenient on this kind of issue. I had a case where the almost the exact same fact that happened I was on I was the respondent and I moved to dismiss on that basis that the the attorney, I think in that case, the attorney had a sanctions award against him. And he filed his notice of appeal. But as the attorney on behalf of his client, the client didn't have a sanctions award against her. And we got the appeal dismissed on that ground. I think under I think this Court obviously would have would have reached and found a way to save the appeal. So I don't know. But I I agree with your point. I don't think that litigants should should count on the mercy of the Court of Appeal to save their appeal. So I had I found this other this other recent case, very interesting. It's about whether you should bring a court reporter to a hearing even if it's not a dispositive hearing. It's just a Law of Motion hearing. And and there's not going to be any testimony offered. And I got to thinking that I'm that after after we get rule eight point 1115 abolish, Jeff, I think we should leverage the mighty influence of this podcast to fix the court reporter problem in the California State courts. The case is why shatel vs. VO? It's it's a second district case. It's about whether litigants need to have a court reporter at a law and motion hearing to appellate justices wound up disagreeing sharply on the question. So regardless of what the majority held, in this instance, what you should be taking away from this decision is yes, you do need to have a court reporter even at a mere law and motion hearing where no testimony is offered. So writing for the majority justice Bendix held that the lack of a reporter's transcript at a hearing on a motion to compel arbitrary was not fatal to the appeal. The majority opinion is logical, it seems to reach the right result in my view. But Justice Cheney wrote a dissent that raises important issues about whether the majority evaded certain procedural safeguards in order to reach its result. And Justice Cheney's strongest in my view is that the procedural rules like supplying a full record must be applied consistently to all litigants in order to afford due process and equal protection. And she wrote, quote, courts tipped the scales when they declined to consistently apply those procedural prescriptions and quote,

Jeff Lewis 10:38
yeah, I have to say, I read this case, and I tend to favor the dissent by Justice Cheney. Just because there's no court reporter present the hearing doesn't mean the parties couldn't attempt to procure a settled statement or greed statement, as a stand in or replacement for the reporter's transcript. And I know they're a big hassle to get either settled statement or agreed statement. But I think Justice Genie on the right approach here.

Tim Kowal 11:00
But Jeff, they're there more than a hassle. You don't even have a right to a settled statement or an agreed statement. And agreed statement is when you can get your opposing counsel to basically stipulate to what was said on the record and opposing counsel can simply saying they're not going to agree to that. And then the judge has settled statements when you get the judge to settle a statement saying what happened on the record, and the judge can just say, Now, I'm not going to settle that I'm not going to order that. And so what do you do you get a court reporter is really the only game in town. And that imposes a huge cost and it's access to justice issue. If you if your cases is already on a tight budget, you might not be able to afford to send a court reporter to every single every single law in motion hearing. Yeah, well, you

Jeff Lewis 11:46
know, maybe I want a perfect storm arrives. When you have a case where there's no court reporter, it's a dispositive hearing. And opposing counsel won't stipulate to the statement and trial, the trial court won't issue and settled statement and there's no agreed statement. Maybe in that case, you could bring up the access to justice issue. If the Court of Appeal were to attend some out to apply this procedural rule and say you don't have the record before us, and we're not going to rule on the merits.

Tim Kowal 12:13
Yeah, yeah. Well, here's what I would propose. I submit that the legislature and the judiciary maybe have been a bit too cavalier about how difficult that they've made the procuring the appellate record for litigants. As some years ago. I'm aware that the California Legislature implemented a pilot program that made audio recordings of all court proceedings, and those audio record recordings could later be made into transcripts. And this is this is the methodology that's used in federal courts. And it guarantees the availability of an appellate record in in every case, the infrastructure is still there in the California Superior Courts from what I understand. But for whatever whatever reason, our state legislature chose to discontinue the rules that would allow their use. So so long as that is the case, I can't accept that jurists are being quite on the level when they suggest that the rules about record preparation are set up fairly and reasonably. It's clear in my view, it's they're clearly not.

Jeff Lewis 13:10
You hear that sound, Tim? That was a sound of 1000. court reporters unsubscribing from our podcast. I suspect the court reporter lobby might have some opinions about your proposal. But I do agree the availability of those audio records with computer software or court reporters that can trick and transcribe that audio to a record. It's a much easier process than having to go through the cumbersome agreed statement or settled statement process. I endorse your proposal. Even if some of our court reporting listeners do not

Tim Kowal 13:42
well, maybe the court reporters can can charge a premium for recording those those audio recordings.

Jeff Lewis 13:52
The next the next case I want to talk about involves Purdue Pharma. I want to bring up this case because it involves an appellate opinion that was really interesting read and the appellate structure for bankruptcy decisions where someone seeks a review of a bankruptcy court decision, you know, go up to a two or three or nine judge panel, there's one judge that Review Order of the bankruptcy courts and interesting procedural setup. But anyway, in Purdue pharma as many people know Purdue pharma, pharma made millions and millions of dollars selling Oxycontin, and in recent years at Purdue at the civil and criminal cases returning pertaining to aggressive marketing of its products, and perhaps liability for the opioid crisis, and the company filed for bankruptcy protection. And last year, it was widely reported that several states and Purdue and the family that owns Purdue the Sackler family agreed to a settlement and the family members had agreed to contribute a fixed sum to the settlement, and in return, the family members received the equivalent of a discharge for immunity for further legal proceedings, even though those family members were not technically parties to the bankruptcy, and were instead subject to the jurisdiction of the bankruptcy court. The settlement was approved over the objection of many creditors, several states objected to the settlement. But nonetheless, it was approved. And all the parties that that objected to the settlement, took it up on appeal to overturn the order approving the settlement and bankruptcy court. Those appeals are first heard by United States United States District Judge. And in December, the district judge of the district court judge issued a scathing opinion overturning the appeal. The judge noted that the Sackler family had removed over 10 billion in profits from the company over the years yet, we're only going to pay a fraction of that part as part of the settlement. And Purdue Pharma has announced plans to appeal the district court's ruling to the second district or excuse me, the Second Circuit. But again, I bring this case up because the oil opioid addiction crisis is so widespread. And also because the writing of this appellate decision by District Court Judge Colleen McMahon was very good, a great read for anyone wanting an understanding of this litigation, the outer boundaries of bankruptcy court authority dealing with parties that are tangentially impacted by bankruptcy. Did you have any thoughts about the case, Tim?

Tim Kowal 16:15
No, that's, that's interesting. Just based on your description, I like the I like the outcome. There are there are limits to what what the parties can settle. And it sounds like the judge was not impressed with with the level of fairness that the settlement reached, what did you think I thought it was

Jeff Lewis 16:29
the right result meaning the overturning of the settlement. I also note that the parties have been ordered to go to mediation, before the Second Circuit hears the appeal. And I suspect that if the Sackler family puts in more money that the objecting parties might be satisfied.

Tim Kowal 16:47
All right, the next case I want to discuss deals with collateral orders. And there's a there's a split, There's long been a split a majority view and a minority view about what constitutes collateral orders. So the case is State of California versus Southern California Edison, it's out of the fourth district second division, and it's an unpublished decision. It holds an orders granting a summary summary, a motion for summary adjudication can be appealable as collateral orders, but just not in this case, because it did not order the payment of money. And that's the that's the breakdown of the majority and the minority view, does an order have to have to order the payment of money or in order to be appealable as a collateral order. And the Court of Appeal here says it does have to order the payment of money. But take caution anytime an order can be appealed. Remember that it must be appealed. So that's the downside to to appealability. It's nice to have orders that are appealable. But you can't sleep on your rights, then it's a very it's very scary when a court says that orders ordinarily assumed to be appealable might be appeal in certain cases, because then then that creates a question mark, and you're going to have to have a Notice of Appeal ready?

Jeff Lewis 17:59
Yeah. Yeah, it's the conclusion. I'll tell you. What I found interesting about reading this case is as a Hail Mary argument in the reply brief. the appellant had asked the court that if the court found the order, not appealable, well just treat it as a writ petition. But because the appellant had waited to raise this for the first time in a reply brief and not at its opening brief, the court never reached this issue. That's a good lesson lesson here is if you're appellate counsel, and you harbor any doubts about the appellate appeal ability of an order, whether or not your opponent might bring it up in terms of the ability of the order, don't wait till the reply brief to make that kind of Hail Mary argument. Be upfront about the concern.

Tim Kowal 18:40
Yeah, that's true, although that that reminds me when the episode when we had our Jaco sin on and and everyone was caught off guard there because everyone thought that the order the probate order, there was appealable. It turns out, the Court of Appeals said now, I don't think this is appealable. But we're going to go no one raised it, whether it can be reviewed as a repetition, but we're just going to go ahead and review it as a repetition anyway, sometimes I wonder if a court wants to review something, it's gonna review it and if it doesn't want to review something, then it won't review it. Alright, so that concludes the cases we wanted to discuss today. We did have a little bit of court news and news from the legal community. And we'll start with some very sad news. Jeff, you and I saw that, that this week. I think it was January 3, it was reported that Kelly urine be passed away. Kelly was a deputy district attorney here in Orange County. She had been a guest on our podcast on episode 16 Back in September 2021. She died apparently of complications from COVID. And my wife and I knew Kelly on a personal level. We're very saddened by that news. Our hearts and sincerest condolences go out to her family. We'll miss you, Kelly.

Jeff Lewis 19:46
Yeah, you know, I never I didn't know her personally, I met her for the first time on this podcast, but I better to be bright and engaging. And it's a real loss for the legal community and the DA is office and yeah, for real. Also, you know, we record this podcast in early January 2022, and both resurgence of omachron and COVID. The federal courts in Southern California have announced the suspension of all jury trials in LA Orange County and Riverside. And Los Angeles Superior Court is suspending for at least for two weeks criminal trials. So that's gonna impact appeals in those courthouse as well.

Tim Kowal 20:22
Right, and that's happening in appellate courts, too. It's reported that the Federal Circuit and the Seventh Circuit are now suspending their in person oral arguments. And so those are going to be conducted remotely again.

Jeff Lewis 20:35
Like circuit two, I think I recall reading that the Ninth Circuit said they're going to jump to remote although they had planned on having arguments in January. Let's let's end on a humorous light note. On occasion, I do try work in addition to appellate work, and sometimes emails or text messages can make or save a case. You know, you find that smoking gun email or smokey good text, and I found a meme on law Twitter that reminded me of this principle about our entire case can turn on a single text or email. And the meme said the meme that was posted on law Twitter said dance like no one is watching a text an email like it will be reading court one day. I think I'm going to add that to my advice that I give my clients going forward.

Tim Kowal 21:17
Yeah, I like that one.

Jeff Lewis 21:20
Well, I think that wraps up this episode.

Tim Kowal 21:23
Alright, so if you have suggestions for future episodes, please email us i Although I am embarrassed to admit I have lost my password to the cow podcast@gmail.com email account. So for now, to ensure timely responses I'll get I'll just put out my personal play real address is T co wall AT T V A law.com. That's T Kowa L at Tango Victor alpha law.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. See you next time.

Anouncer 21:58
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 ca l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again

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Doctors who do not conform their practice to the “standard of care” risk disciplinary action from the state medical board. But not only is the development of the “standard of care” opaque and mysterious, it is often quite wrong. Appellate attorney Tim Kowal and health care litigator Rick Jaffe, Esq. discuss two presidents who died because of the “standard of care”: George Washington from bloodletting, and James Garfield from sepsis.

Watch the clip here.

This is a clip from episode 21 of the California Appellate Law Podcast. Find show notes and 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.

In 2021, the California Supreme Court issued a surprising opinion. The Court held that an untimely appeal is not an absolute bar to appellate jurisdiction, at least in juvenile dependency cases. (In re A.R. (2021) 11 Cal.5th 234, discussed in Tim Kowal, “Untimely Appeal May Be Excused in Dependency Proceedings, Cal. Supreme Court Holds,” Apr. 6, 2021.)

The reason this was surprising is that, until then, a uniformity of California cases had held that an untimely appeal was an “absolute bar” to appellate jurisdiction. (Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81, 83; In re Marriage of Eben-King and King (2000) 80 Cal.App.4th 92, 116 ["[T]he time for filing a notice of appeal is absolutely jurisdictional, and cannot be extended by a trial or appellate court without statutory authorization, even for reasons of mistake, estoppel, or other equitable considerations."].)

The result in A.R. was that the dismissed appeal, having been filed four days late (the appellant had instructed her attorney to timely file it, but the attorney forgot), was reinstated. The reinstatement was based on the appellant’s motion and her habeas petition. The Court reasoned that the 1994 statute providing a right to effective assistance of counsel, and the habeas statutes, when strictly followed, together formed a remedy for ineffective assistance in the way of forgiveness of brief delays in filing a notice of appeal. Given the appellant’s clear instruction to her counsel, the mere four days’ delay, and her habeas petition, the A.R. Court set aside the dismissal and reinstated the appeal.

But in the recent case of In re B.P. (D5 Jan. 26, 2022 no. F082863) 2022 WL 224811 (nonpub. opn.), the Court of Appeal took A.R. quite a bit further. The events leading up to the untimely appeal are analogous: The appellant immediately instructed her attorney to take the appeal, but the attorney failed to do so. The attorney thought she could wait until a judgment was entered, which the respondent didn’t submit for several months. The attorney was wrong, resulting in an appeal over four months late. (Recall the appeal in A.R. was just four days late.)

In addition to the appeal being four months late, unlike in A.R. the appellant failed to file a habeas petition.

No matter. The Fifth District Court of Appeal held the untimeliness was not a jurisdictional bar.

The court did acknowledge this was a “close case” because of the four-month delay, which undermines the policy of expeditious results in dependency proceedings: “As our high court in A.R. pointed out, “ ‘a delay of months may seem like ‘forever’ to a young child.’ ” (A.R., supra, 11 Cal.5th at p. 253.) Here, months and months had passed because of multiple failings on the part of appellant's trial counsel: (1) trial counsel mistakenly thought the time to file started when the judgment prepared by respondent was filed; (2) even in light of that mistaken belief, trial counsel failed to take initiative to prepare a judgment herself in absence of any action by respondent, knowing that appellant was planning to appeal and that her client's and young B.P.'s interests were at stake; and (3) trial counsel waited approximately an additional three weeks after respondent's judgment was filed to file the notice of appeal.”

After balancing the equities, however, the court concluded that disregarding the untimeliness of the appeal was appropriate. And then went on to affirm.

Comment: I reiterate, a fortiori, the concerns expressed about A.R. here. The statute giving a right to competent counsel in juvenile dependency proceedings does not indicate the Legislature intended an exception to the jurisdictional bar to untimely appeals. The Legislature surely is aware of Rule 4 of the Federal Rules of Appellate Procedure, and could easily adopt such a rule if it wished. And while A.R. based its holding on the habeas statutes, and noted the appellant had filed a petition for habeas corpus, that aspect of A.R. analysis is absent from B.P.

As I said before, courts will continue citing the "jurisdictional" prohibition against considering untimely appeals. But, we may continue to wonder whether they are in earnest.

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This one seems wrong to me.

This is a published case in Conservatorship of Joanne R. (D2d7 Dec. 17, 2021 no. B310906) 72 Cal.App.5th 1009. The appellant was put under a year-long conservatorship. Under the Lanterman-Petris-Short Act governing conservatorships, the appellant was entitled to a jury trial, to commence within 10 days of demand, challenging the establishment or extension of the conservatorship. (Welf. & Inst. Code, § 5350.) So she invoked that right.

But here is what the trial judge says about the appellant’s right to commence a jury trial in 10 days: “if you would like to have a court trial with the judge making the decision we can do that today. If you would like to have a jury trial then we can do that as well, but we won't be able to do it today. We can reschedule and do that in November.”

This is in early February. That’s nine months into a 12-month conservatorship.

The appellant responds “I would prefer a jury trial, but I don’t want to wait until November.” Then after a short colloquy, says, “I think I want to go ahead today and do it.”

Is that a voluntary waiver of the appellant’s right to a jury trial? The Second District Court of Appeal says yes. But the court has grave reservations:

“However, we caution the superior court that a nine-month delay for a conservatee to have a jury trial where the conservatorship would otherwise end in a year, absent a health emergency, raises serious constitutional concerns in light of the significant liberty interests at stake. A conservatee's right to a jury trial has little meaning if the conservatee can only exercise that right after spending nine months of a one-year term in a custodial setting. Indeed, in this case, because the pretrial hearing was delayed due to the pandemic, the jury trial would have taken place just one month before the conservatorship was scheduled to expire. This delay strays far from the statutory requirement in section 5350, subdivision (d)(2), that a “[c]ourt or jury trial shall commence within 10 days of the date of the demand,” unless the attorney for the proposed conservatee requests up to a 15-day continuance.... We urge the superior court to dedicate the necessary additional resources to LPS jury trials so that conservatees may exercise their right to a jury trial in a timely manner. Failure to do so likely violates a conservatee's constitutional right to due process.”

The court distinguished People v. Collins (2001) 26 Cal.4th 297, 312, 109 Cal.Rptr.2d 836, 27 P.3d 726 (Collins), where the court found an inducement when the judge said that, by waiving jury, “that has some effect on the court ... by not taking up two weeks’ time.... you are getting some benefit, but I can’t tell you what that is because I don’t know yet.” The Joanne R. court distinguished Collins because here, the trial court did not offer to “reward” the appellant for waiving jury. Instead, the judge was “ simply advising her of the reality” of jury-trial delays.

In support of this distinction between offering a “reward” versus stating “reality,” the court pointed to the fact that the Covid-19 pandemic has delayed trials considerably. And even pre-pandemic, the court noted that jury trials consistently were delayed beyond four months. So the judge reasoned that the judge did not induce a waiver merely by pointing to this reality.

Comment: But, Your Honor — and forgive me for being glib — that is a you problem. The institutional you, I mean. The statute guarantees a right to a jury trial in 10 days. The Legislature has not abrogated that despite having two years’ of pandemic to think it over. (And it appears the Legislature has moved on to a full slate of other non-Covid matters.) The governor has continuously asserted “emergency” authority for nearly two years. The Judicial Council has exercised emergency authority to extend many deadlines. Yet neither has abrogated a conservatee’s right to a jury trial to commence in 10 days.

The difference between a “reward” and the “reality” here is too slippery, in my view. That is particularly so when the “reality” is squarely within the state’s control: the state is free to abrogate the statutory right to a jury trial commencing in 10-days; it is free to allocate sufficient resources to honor the statutory guarantee. But what the state is not free to do is create statutory guarantees for litigants, fail to perform them, and then conclude that the litigant “waived” that guarantee by accepting the only alternative the state would make available.

The Upshot: The appellant here needed to have filed a writ petition as soon as the trial judge indicated her right to a jury trial to commence in 10 days would not be honored.

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Recent months and years have seen a surge in medical-board investigations of doctors whose individual medical advice strays from public health policies. Health care litigator Rick Jaffe, Esq. discusses the tension these medical board interventions create by promoting public health policy, on the one hand, and chilling the practice of individual medicine, on the other hand.

Watch the clip here.

This is a clip from episode 21 of the California Appellate Law Podcast. Find show notes and listen to the full episode here.

Many attorneys are missing their best opportunity to persuade the appellate court. Appellant expert Myron Moskovitz talks with Tim Kowal and Jeff Lewis about the importance of the introduction in appellate briefs. The introduction should summarize your arguments and not belabor detail. And it should be a roadmap to the all-important statement of facts.

Watch the clip here.

This is a clip from episode 20 of the California Appellate Law Podcast. Listen to the full episode here.

What happens when a judge dies or becomes unavailable before the entry of a judgment? A mistrial resulted, and was affirmed, in Marriage of Stone (D2d2 Jan. 24, 2022 no. B297778) 2022 WL 202815 (nonpub. opn.). The trial judge presided over the first phase of a dissolution proceeding. After the trial, the judge issued a tentative decision, held a hearing on the parties’ respective proposed statements of decision, and indicated he would consider modifying certain language. But the judge passed away before entering a final statement of decision or entering a judgment. So the presiding judge declared a mistrial.

On appeal, the appellant-wife argued the mistrial was error and the presiding judge should have entered a judgment on the trial judge’s findings in the intended decision. She had a great case on point, holding that under Code of Civil Procedure section 635, the presiding judge may enter a judgment on an unavailable trial judge’s intended decision. But ultimately the court held it was not close enough, and affirmed.

Here is the black-letter law to clip-and-save: When the trial judge becomes unavailable before the entire process contemplated in Code of Civil Procedure section 632 and California Rules of Court, rule 3.1590(b) has been completed, the parties have been deprived of a full and fair trial. (Raville v. Singh (1994) 25 Cal.App.4th 1127, 1132.)

Attempting to distinguish this proposition, the appellant made a promising argument from Leiserson v. City of San Diego (1986) 184 Cal.App.3d 41. In Leiserson, the trial judge entered an “intended decision.” The plaintiff filed objections to the intended decision. The trial judge commenced a hearing on the objections, continued the hearing, but then passed away before concluding it or entering a final statement of decision or judgment.

The presiding judge entered judgment on the intended decision pursuant to Code of Civil Procedure section 635. Section 635 permits a presiding judge to sign a judgment when “the decision of the court has been entered in its minutes, and when the judge who heard or tried the case is unavailable.” The statute “authorizes the signing of a formal judgment by the presiding judge only where (1) no statement of decision has been requested or (2) the judge who has heard the evidence has already provided the parties with a statement of decision upon their request for it.” (Armstrong v. Picquelle (1984) 157 Cal.App.3d 122, 127.)

In apparent distinction from Armstrong, the Fourth District in Leiserson allowed a judgment to be entered without a statement of decision, even though the parties had requested a statement of decision. So the appellant in Marriage of Stone urged the same result should obtain.

But the Second District distinguished Leiserson. The court reasoned that “unlike the intended decision in Leiserson, Judge Black's notice of intended decision did not “ ‘provide a complete and adequate basis for appellate review’ ” (quoting Leiserson, supra, 184 Cal.App.3d at p. 48) because there were no rulings “on the issues of child support arrears and prospective child support.” “

The Upshot: Trial judges sometimes become unavailable unexpectedly. Following a favorable bench trial decision, do not delay: move as quickly as possible to procure the final decision and judgment.

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Confused by all the challenges to the vaccine mandates? Health care litigator Rick Jaffe, Esq. sets them out in two main types: (1) challenges to the state police power; and (2) challenges to the federal agency and police power. (And then a third: religious conscience challenges.)

Watch the clip here.

This is a clip from episode 21 of the California Appellate Law Podcast. Find show notes and listen to the full episode here.

An order enforcing a settlement agreement is an appealable order, but what about an order denying enforcement of a settlement agreement? In a previous unpublished opinion (see Tim Kowal, ”Denial of Motion to Enforce a Settlement Held Appealable....” Dec. 20, 2021), one court reminded the bar that parties really ought to have orders on settlement-enforcement matters under Code of Civil Procedure section 664.6 entered as judgments: that way, there’s no doubt as to their appealability. But that court gave some leeway and concluded there was “no functional difference” between a grant and a denial of costs.

But the Second District gave no such leeway in its published opinion in Sanchez v. Westlake Services, LLC (D2d7 Jan. 18, 2022 No. B308435) ___ Cal.Rptr.3d ___, 2022 WL 1522087. In Sanchez, the parties settled a consumer rights lawsuit concerning the sale of a car, with the settlement providing that the plaintiff may seek a motion for attorney fees. The trial court denied fees as barred by the sale contract. The plaintiff appealed the order denying her fees.

The Order Denying Enforcement of a Settlement Agreement Was Not Appealable:

As discussed in another recent opinion in Rezzadeh v. Chiu (D5 Dec. 13, 2021) 2021 WL 5873074 (nonpub. opn.), an order granting a motion to enforce a settlement under Code of Civil Procedure section 664.6 is appealable. (Hines v. Lukes (2008) 167 Cal.App.4th 1174.) Rezzadeh dealt with an order denying a motion to enforce a settlement, and the court held there was “no functional difference” between a grant and a denial of costs because the trial court's order “functionally terminated all litigation between the parties.” And besides, “if this were not the case the trial court's order would be insulated from any form of review....”

But Sanchez went the other way on this. Sanchez held, in a published opinion, that an order denying enforcement of a settlement agreement under Code of Civil Procedure section 664.6 was not appealable.

First, the court noted that the notice of appeal cited subdivision (a)(2) of the appealability statute, Code of Civil Procedure section 904.1. Subdivision (a)(2) is for orders following a judgment. But there was no judgment here. So that ground doesn’t apply.

Second, the court declined to treat the appeal as premature. True, the plaintiff-appellant later requested dismissal, which the trial court clerk entered. But the appeal was not from the dismissal — it was from the order denying fees. This was not a premature appeal of the dismissal, and so it could not be “saved” as a premature appeal.

Even if the appeal of the denial of fees could have been treated as a premature appeal of the later dismissal, the court refused to exercise its discretion to do so. The court scolded counsel for failing to move to augment the record to include the dismissal (though the court considered the dismissal anyway). “Given the experience of Sanchez's counsel, no excuse or justification appears to exist for this failure to observe the rules governing appellate jurisdiction.”

A Split with a Other Authorities Leaves Open Whether Post-Settlement Fee and Cost Orders May Be Appealable:

Sanchez apparently assumed that denials of fee orders are not appealable **as a final judgment in and of itself under Code of Civil Procedure section 904.1(a)(1). (The appellant appears not to have advanced the argument, but as appealability is jurisdictional, the court should consider it independently.) This assumption is contrary to Gassner v. Stasa (2018) 30 Cal.App.5th 346, 351-355, which held that a cost order following voluntary dismissal without prejudice is appealable "judgment" because it is a final determination of rights of the parties in the action, and thus “it is a judgment and appealable as such under Code of Civil Procedure section 904.1, subdivision (a)(1).”

Gassner was cited favorably by C.H. Reynolds Electric, Inc. v. Powers (D6 Aug. 24, 2021) no. H046554 (nonpub. opn.) (See Tim Kowal, “Although Contempt Orders May Not Be Appealed, Fee Awards on a Contempt Order Are Appealable,” Aug. 26, 2021.) C.H. Reynolds, cited the published opinion in Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1388 (LA Times). LA Times held that, when it comes to fee orders, "[n]othing remains for future consideration, and no other opportunity exists for appellate review” and it “is therefore ‘properly viewed as a final judgment and hence appealable as such’ under section 904.1, subdivision (a)(1).” (LA Times, supra, 88 Cal.App.4th at p. 1389; see also Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 755.) C.H. Reynolds extended this reasoning to denials of fees, not just grants.

Sanchez did not discuss these authorities or the reasoning they advanced. Thus, despite Sanchez, it remains an open question whether fee and cost orders after a settlement may be independently appealable.

Comment re: Appealability of Voluntary Dismissals:

Sanchez assumed that the plaintiff-appellant’s voluntary dismissal with prejudice would have been appealable. Sanchez did not cite authority or give reasons for this assumption. A word to the wary: do not count on voluntary dismissals being appealable. Here are three important factors to consider when analyzing whether a voluntary dismissal is appealable:

Voluntary dismissals without prejudice definitely are not appealable. (Tim Kowal, “The Trouble with Voluntary Dismissals,” Nov. 11, 2021.)
A voluntary dismissal with prejudice may be appealable “if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling." (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012 (Stewart). But if the voluntary dismissal with prejudice was not entered after an adverse ruling in order to expedite the appeal, this rule might not apply, and thus the dismissal may not be appealable.
As a further limitation to the rule immediately above, some cases suggest that voluntary dismissals simply are not appealable, ever. (See, e.g., H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1365 ["A voluntary dismissal is a ministerial act, not a judicial act, and not appealable."]; Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342-1343 [dismissing for lack of jurisdiction appeal from voluntary dismissal with prejudice after demurrer was sustained without leave to amend]; Parenti v. Lifeline Blood Bank (1975) 49 Cal.App.3d 331 [dismissing for lack of jurisdiction appeal from voluntary dismissal of entire action after demurrer was sustained without leave to amend]; Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760-761 ["A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review rulings on demurrers or motions made prior to the dismissal."]. See Citizens for Responsible Equitable Environmental Development v. City of San Diego (D4d1 Feb. 16, 2011) No. D057113, at *1 n.4 [holding dismissal with prejudice was not appealable.)

Sanchez offered no guidance on these points. It merely assumed voluntary dismissals with prejudice are appealable. Litigants should be prepared to argue that this is not necessarily the case, and the Court of Appeal should either make an explicit holding on this point, and if the dismissal is not appealable, then there probably ought to be some form of appellate review available.

The Denial of Fees Was Not Appealable as a Collateral Order:

Finally, Sanchez rejected the plaintiff-appellant’s argument that the order denying attorney fees should be treated as a collateral order and thus appealable on that basis. The court accepted the majority view that only orders that are (1) final, (2) collateral, and (3) direct the payment of money, may be treated as appealable collateral orders. (For a discussion of the minority view, see Tim Kowal, “The Trouble with Voluntary Dismissals,” Nov. 11, 2021.)

The Upshot: When you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable.

And there are many trap doors when your appeal is mixed up with a dismissal.

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Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their proposal to amend California Rules of Court 8.1115, the rule that prohibits the citation to unpublished opinions. David and Dean note that, despite rule 8.1115 near-categorical ban, the courts in practice already condone such citations in some contexts, most notably petitions for review.

David also discusses the California Supreme Court’s “shadow docket” — precedential opinions that are issued without full merits briefing or oral argument.

Read David and Dean’s article, Revisiting California’s No-Citation Rule.

David Ettinger’s biography and blog, At the Lectern.

Dean Bochner’s biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Transcript

David Ettinger 0:05
That's an accepted an accepted practice, but it violates the rule, which is the whole point of the article. We're just trying to get the rules to coincide better with with the practice.

Anouncer 0:19
Welcome to the California pellet podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Jeff lewis 0:32
Welcome, everyone. I am Jeff Lewis.

Tim kowal 0:35
And I'm Tim Cole wall California Department of podcasting license pending determination of moral character. 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 and appellate courts. We both worked directly with trial attorneys to prepare cases for trial, Trial and Appeal. And in this podcast, we offer some of that appellate perspective on various issues that arise both in trial court and on appeal

David Ettinger 1:04
to Episode 22 of the podcast. Today's first we have two guests on we haven't done that yet in the year. So we've been doing this podcast.

Tim kowal 1:14
Now this is a first for us. So we are we are pleased today to welcome our first guests duo David Ed injure and Dean Bochner. Dave, David Ed injure has briefed and argued many notable appeals including more than a dozen arguments before the California Supreme Court. He's considered by many in the industry as a scholar and appellate law and leverages his keen insights to support clients immediate and long term challenges in the appellate courts. After many years as a partner at Horvitz and levy David is currently of counsel, and he joined the firm in 1982. His many legal publications include several articles on hospital peer review committee confidentiality, David served two terms on the appellate Advisory Committee for the Judicial Council of California, to which he was appointed by Chief Justice Ronald George. And our second guest today is David's law partner, Dean Bochner. Being defends manufacturers, hospitals, municipalities and other entities and high exposure litigation. At trial Dean assists clients by preparing dispositive motions and preserving critical issues for appeal. On appeal. Dean serves as lead counsel in cases covering a wide range of practice areas including products liability, medical malpractice, defamation, employment, property and contract the dean is also a partner at Horvitz and levy where he has been practicing since 2004. Before joining the firm, Dean served as executive vice president of a financial services company that purchases assignments of civil judgments pending on appeal, in that capacity been evaluated hundreds of civil appeals in both state and federal courts throughout the country. So welcome to the podcast today, David and Dean, I'm so glad that you both decided to join us.

Dean Bochner 2:58
Thank you. Good to be with you.

Tim kowal 3:01
I wondered after after the introduction of both you. I want to ask to start with you, David, if you just tell us a little bit about your practice today. I know you're of counsel but I also know I follow your blog at the end Horvitz and levy website and I follow it closely it's is a lot of your work focused on the Supreme Court because you a lot of your posts at the blog focus on the Supreme Court.

David Ettinger 3:24
Right my career now is primarily doing the blog I stopped doing most appellate work about four almost four years ago. So sort of a semi retirement I do have one pro bono appeal. That's it's in the works still. But other than that I haven't done briefing for about four years. The blog does cover does focus on the California Supreme Court, mostly procedural practice kind of things. But we also do talk about the subsequent rulings that the the court does make.

Tim kowal 4:00
Right you have a lot of good tips about you know, splits of authority thing good things for appellate practitioners and trial attorneys to look out for the name of the blog is at the lectern. It's at www dot ATT the lectern calm. Did you and how did your How did your practice evolve? Did you did you start in the in the trial courts and move up to appeals or is it always have you always been an appellate attorney?

David Ettinger 4:23
It's it's been 100% appellate at a law school I clerked for a state court of appeal justice for two years. And then I moved to Horvitz and Levy and that's where I've been ever since.

Tim kowal 4:37
And we talked about a lot of your your writing on at the lectern focuses on the California Supreme Court. Do you the how much did your practice ever take you into many federal appeals? The

David Ettinger 4:49
firm does do a number of federal appeals in ninth circuit and other circuits as well and I and I've had several during my career most of my work was In the state appellate system,

Tim kowal 5:02
yeah. Now, Dean, what about you tell us a little bit more about your practice and how how it evolved? Is your practice today? I think it mostly appeals but you but you also work with with trial attorneys and the trial court as well,

David Ettinger 5:15
as That's right. My practice focuses on civil appeals. And as you noted, primarily in the areas of products liability and medical malpractice cases, though I've handled appeals in other areas too. And like David, most of my practice is focused on the California State courts, although I have handled some matters in federal courts and in other states as well. But I also consult with trial lawyers and litigation pending in the trial courts and help draft dispositive motions, motions, eliminate jury instructions and post trial motions, all with an eye toward preserving issues for appeal.

Tim kowal 5:51
Do you have any any key key insights major traps that you've been able to help trial attorneys avoid when navigating, you know that that chasm in between the trial courts and the appellate you know, nothing

David Ettinger 6:02
specific comes to mind, but it is very helpful to be in a position to draft motions and jury instructions that that do? Often jury instructions especially present a lot of appellate issues? And so I think we can add a lot of value in that respect.

Tim kowal 6:21
Is that something you do do you offer to help draft EMI ELLs and jury instructions,

David Ettinger 6:26
absolutely inverted forms as well and prepare trial briefs during the course of trial?

Tim kowal 6:31
I was I was offered to do that. But I have to confess I secretly hope they won't take me up on it. It can be such a lot of grunt work but as you say it's it is critically important it is there's there's kind of a privilege and being able to sit at you know, with with tented fingers at the end of the process saying oh, you should have done XY and Z. But then when when they actually asked you to help do xy and z if they go oh my God, I hope I don't screw anything up. It's right now, Dean, you're also chair of the CLA CLA litigation section committee on appellate courts. We'll post the show notes posted a link to that in the show notes. Can you tell our audience a little bit about what that what the CLA litigation section committee does?

David Ettinger 7:12
Sure. The Committee on appellate courts was founded about 50 years ago as a standing committee of the State Bar. And when the CLA emerged from the State Bar in 2018, we continued as a standing committee of the CLAS litigation section. We have about 20 members who are diverse, both in terms of practice and geography. Our members include civil and criminal appellate lawyers, large firm attorneys, sole practitioners, government attorneys, and even law clerks from Sacramento to San Diego and most large cities in between our committee does a lot of different activities. I'll give you a few examples. We propose and comment on proposals to amend rules that govern appellate practice. In California, we present educational programs like webinars and an annual conference called the appellate summit that features academics, appellate justices, trial court judges and prominent appellate practitioners. We draft a lot of publications of interest to the legal community, including articles in the litigation sections quarterly, California litigation magazine, the annual California litigation review, and we added a monthly online publication called the litigation update that summarizes important decisions from the California courts, the Ninth Circuit, and the US Supreme Court. We also have an access to justice subcommittee that focuses on improving access to the appellate courts, for those who can't afford an attorney in civil cases. So that's a broad overview of the committee's work

Tim kowal 8:45
is a litigation review is that the magazine that comes I get one, I think every quarter from being a section member of the orange bar association, Business Litigation section,

David Ettinger 8:55
I think it's a different publication. Ours is from the CLA litigation section. And it's called California litigation, and it comes three times a year

Tim kowal 9:05
in the mail. No, I think I have seen that. And that's that's an excellent journal. And, you know, you mentioned talking about, you know, proposed changes to appellate and civil procedure. And I think we'll, we'll talk about one of those today. And an article that you, you both co authored about. The California has no citation rule. But but just one other one other topic. Before we get to that, David, I know you have a series of you had a series of posts up at your blog at the lectern earlier this month about the shadow docket, as it's called, in the California Supreme Court. And there's been a lot of a lot of talk about the shadow docket at the United States Supreme Court over the last many months. But can you tell our audience a little bit about what the shadow docket is in the in the US Supreme Court and about how why you think that there's a shadow docket also in the California Supreme Court?

David Ettinger 9:57
Sure. Well, I think I'm the only one One who's actually called it a shadow docket at the California Supreme Court at the at the US supreme court, the court has been ruling of late on often emergency motions, and they do so without briefing or not full briefing or oral argument. And they will publish an opinion, they will issue an opinion that can be can be precedential. Without the usual process of of an appeal. And I identified a few instances where the California Supreme Court has done similar things very much less frequently, I would say, than the US Supreme Court, but has done has made decisions in cases without full briefing and without oral argument. It's truncated proceeding. So that's that's what I call a shadow docket.

Tim kowal 11:00
Okay, so with that, that include disposition of motions in in appellate courts as well.

David Ettinger 11:07
Um, well, those you don't have it any, any precedential value out of it, when when there's a motion rolling in the Court of Appeal, unless they're going to publish, they can publish an opinion, they can issue an opinion on emotion, which they do, I guess, occasionally, but very rarely

Tim kowal 11:27
and wonder I was wondering, Is that the same as the same standard for for publishing opinions as it is in disposing on motions? Just Is it the same I forget what what rule accord it is that that has the standards for publication? Right? I

David Ettinger 11:41
would, I would say it's, it would be the same, it would be the same standard to publish a decision based on emotion. I would think that I haven't done a study. But I would think the most frequent published decision on motions in the Court of Appeal would be a motion to dismiss an appeal. For whatever reason, there have been whether it's tie an untimely notice of appeal, or in other other matters, that this entitlement document doctrine has generated a few public decisions of late.

Tim kowal 12:21
So in, in your, in your opinion, and we're just kind of talking about this, this more or less made up idea of the shadow docket. I think that I think it was an author of some law reviews, some years ago, came up with that term, and it is apparently stuck. But in your view, does it have to be does the the action by the court have to have precedential value for it to be considered part of the quote unquote, Shadow docket?

David Ettinger 12:41
Yeah, I would say so. I mean, if I mean, the Supreme Court, makes orders all the time that are not published and have no precedential value. The court has conferences every Wednesday, and will issue orders on maybe 100 petitions for review each week, denying almost all of them, and none of that is is of any interest, or precedential value.

Tim kowal 13:10
So that's not part of the shadow docket, then that would not be the shattered docket. Okay.

David Ettinger 13:17
But as an example of what they would do one of the one of the instances of shadow docket rulings that that what I call shadow docket rulings are occasionally the the Supreme Court will make rulings on requests from the ninth circuit to answer questions of California state law. And they will issue an order denying the request saying we're not going to we're not going to take this case. But there's always a butt in there. Not always but a case a few times they put a but in their denial orders were say they've cited to a court of appeal decision that really answers the question for the ninth circuit without the Supreme Court having to have taken the case. got full Supreme Court briefing, hold, hold an oral argument and issue a detailed opinion. So that that's a that's a good example of what I'm characterizing as a shadow docket ruling.

Tim kowal 14:25
Interesting. Okay. And in the in the US Supreme Court, what are the typical types of orders that are considered part of the shadow docket? Or I thought I heard that that refers to its motion docket or request for stays, or is that part of the shadow docket, so called? Right?

David Ettinger 14:42
I think, and I'm not as familiar, nearly as familiar with the US Supreme Court's shadow docket as I am with the California Supreme Court. But I think one example is some of the pandemic restrictions that were challenged because as As discriminating against religion, religious entities, and the the US Supreme Court had made some decisions without holding oral argument without full briefing that upheld the rights of of religious entities as against some pandemic restrictions.

Tim kowal 15:23
Right. Right. And those were done without without complete briefing. It was not one of the watch cases because it wasn't briefed, didn't have oral argument that all the legal commentators got to pick over, including our own Jeff Lewis, who's a Supreme Court commentator, we're robbing him of his ability to get some to get some headlines.

David Ettinger 15:41
I don't know, I don't know that oral argument does a whole lot to

Jeff lewis 15:44
shape the ultimate outcome of these decisions. So I don't know, when I hear about the shadow docket, the justices being deprived of the oral argument, the briefs, etc. They're gonna do what they're gonna do. And that oral argument changes anything. That's just me.

Tim kowal 16:00
Well, but it's part of as far as putting it into the sunlight. Right? Yes, I think that's that's the opposite connotation of the the shadow docket. That's why I was gonna ask you, David is the the the very term that's been chosen moniker shadow docket suggests that there is something that is less than transparent about what's being been what goes on there. It's it has somewhat something of a negative connotation for more ICIT. Is that is that you're feeling and do you believe that that negative connotation is deserved?

David Ettinger 16:30
Well, I don't know whether it's so much transparency as a truncated procedure, an expedited procedure without the usual opportunities for input that you have in a normal appellate process. But yeah, I think I think shadow doc, it carries with it a negative connotation. Certainly.

Tim kowal 16:53
Okay. Anything else our audience should know about the shadow docket before we talk about? You

David Ettinger 16:58
know, I don't think so that that covers things. All right.

Tim kowal 17:01
Well, we'll circle back around to it. I have a question about, you know, maybe tying your article into this concept of the shadow docket. But I want to talk about your your article published in the California Lawyers Association magazine about unpublished decisions, the so called no citation rule, rule of court eight point 1115, that the California Attorneys know well, and I will say that there's not a California Attorney among us who has not researched an issue found the perfect case on all fours on the facts and the law, but dammit, it's uncited. It's unpublished I can't cite. So in the article, you cover the general rule that an unpublished opinion is not suitable for any reason. And then you survey a few of the exceptions to the rule such as that citing unpublished opinions in a petition for review in the Supreme Court is permissible. But as a strong opponent, myself of the no citation rule, I've compiled a list of my own possible ways around the rule. So I wanted to hear your your kind of your summary on the on the no citation rule and your, your article about and then I want to ask you some questions about whether some of my proposed and runs around the no citation rule might pass muster, in your view. So to tell our listeners a little bit about your article and why you published it.

David Ettinger 18:17
I could let Dean start with that because he took the lead on drafting the article.

Sure, yeah, Cal, as you noted, California, like a lot of other states has a rule that prohibits courts and lawyers from citing unpublished opinions. That rule was intended to prevent litigants from citing those opinions as precedent on the merits of a legal issue. But the language of the rule is a lot broader. It says that an unpublished opinion, must not be cited or relied on by a court or a party in any other action. Now, despite this categorical bar, in practice, courts and lawyers cite unpublished opinions in a variety of contexts. For example, is he noted to show a conflict among Court of Appeal decisions in order to obtain review in the California Supreme Court and to identify noteworthy facts that appear outside the appellate record? Those are just a couple of examples.

Tim kowal 19:11
But what do you mean, you can cite to an unpublished opinion in order to show fat to identify

David Ettinger 19:17
facts that might be relevant to the issues in the case, you know, under the text of the rule that is prohibited because you are citing or relying on, you know, an unpublished opinion, and it's a categorical rule, but it's done all the time. And in our article, we cite several opinions that do that.

Tim kowal 19:38
Now, I noticed that some of the examples that you cite were courts, you know, maybe arguably, you know, putting their toes on the line of rule a point 1115 in your in your practice, and we're all attorneys here. If you were if you were to consider doing that citing an unpublished case, to show to show a fact or to show that something is Well, maybe I can give an example would would you do that just by putting a citation or would you do a request for judicial notice?

David Ettinger 20:08
Well, I personally would not do that I wouldn't cite an unpublished opinion, given the the state of the rule as it is currently drafted. But I, you know, we note in the opinion that or in the article that the current practice among courts, both courts and litigants, they do do this. They do cite unpublished opinions just to identify relevant facts from other other cases. But if you're asking what my practice would be, I don't do it at all. I don't know if David has a different practice.

I do I have cited it. I don't know what I've done it in petitions for review. I don't know whether I've ever done it anywhere else. But petitions for review. If if you want to show that an issue is recurring in the courts of appeal, it's it's an accepted practice, although in violation of the letter of the rule. It's an accepted practice to cite unpublished opinions to tell the Supreme Court Hey, this, there's a lot going on under the surface, not just published cases. But this this issue is coming up a lot in in unpublished opinions too. And that's that's an accepted an accepted practice, but it violates the rule, which is the whole point of the article. We're just trying to get the rule to coincide better with with the practice. Together.

Tim kowal 21:38
I thought I recalled that citing unpublished opinions in a petition for review to show that the issue is is coming up was one of the stet was was one of the exceptions provided for in the rule, is it not?

David Ettinger 21:50
It is it is not. And that and that's that's one of the point, one of the main points of the article, I

Tim kowal 21:56
admitted that. I don't know where I got that into my head, but that's okay. Good to know.

David Ettinger 22:01
Yeah, it's, it's done all the time. And and I was would

Tim kowal 22:05
you show that the issue that, you know, this was right for review, if you can't show that, look, all these other courts of appeal are tripping over this issue everywhere? Well,

David Ettinger 22:14
I mean, if you were going just by the way, the rule is written right now, the letter the roll, you'd be restricted to show just published opinions dealing with that issue. Or maybe

Tim kowal 22:24
you can get a student to draft a law review article about all these unpublished decisions, and then cite the law review article

David Ettinger 22:31
that has been done. Not by us, but I know I remember when I was clerking at the court of appeal when I was first got to law school, where a brief cited a law review article. And in that law review article was an unpublished discussion of an unpublished opinion that was right on point and useful public service. I said, Oh, that's fair. That's a very clever way to get get around the rule.

Tim kowal 23:00
I like it. I'm not the only scofflaw around and

David Ettinger 23:03
you know, and that's scofflaw is the word that I think, you know, the the point of the article is to save practitioners and the courts from being habitual scofflaw in when they when they cite to these unpublished opinions.

Tim kowal 23:21
Well, yeah, I could see your your point about I think one of the one of the points you you made is that prior to rule eight point 1115, the rule was that you could cite unpublished cases just not as precedent. But then, of course, you put that kind of rule in the hands of attorneys and will always find ways to say no, no, I'm not citing it as precedent. No, don't worry, but but really, you know, it's precedent, you know, I want you to take it as precedent.

David Ettinger 23:45
Well, precedent or or no, there, there's, the rule says you can't do it. You can't cite to it for except for two very narrow exceptions, which hardly ever come up. But But attorneys in the courts find unwritten exceptions to the rule all the time. The Supreme Court doesn't Supreme Court justices do that?

Tim kowal 24:12
Well, here's what one of the one of the the exceptions maybe the unwritten, unwritten exception is that of course, we know that, that California practitioners can cite to federal cases in their briefs, even if they're unpublished. And every now and then you'll find a useful federal opinion that discusses an unpublished California opinion. So what say you is it lycett To discuss a federal decision that discusses an unpublished California

David Ettinger 24:40
I think deciding in a federal non Pub is permissible, but under the letter and the spirit of the law. So yeah, the rule only addresses unpublished state court of appeal or Appellate Division opinions.

David Ettinger 25:00
I would agree with that if you're strictly discussing the federal court opinion, I think you're you're safe. But once you start discussing the unpublished California decision, I think that would probably violate that would definitely violate the terms of

Tim kowal 25:14
the rule. What if you're couching it in terms of this is just what the federal court said about this California on pub.

David Ettinger 25:27
I would just discuss the federal opinion without discussing the the non pub. I think that's your your safest bet.

Tim kowal 25:30
Okay. Now, your your article also mentions this other possible way around. And that's the fact that that courts and counsel have cited to unpublished opinions to illustrate the effects of certain laws. And there was this case last year, last December, out of Supreme Court People vs. Gentile. And the district attorney in that case had cited to unpublished opinions that supported his argument that barring convictions of second degree, murder, under the natural and probable consequences theory, would result in criminals, quote, getting away with murder and quote, and so the DA did not cite those cases as legal authority, but merely for their relevance, as you know, I guess as equivalent to news stories that supported his basically a policy argument. Now, the plain language of rule eight point 1115 would not allow this but the Supreme Court, and the Supreme Court ultimately rejected the DBAs argument, but didn't suggest that any rule 11 point 15 violation that occurred or that the DBAs conduct was in any way improper? I thought the I thought the DBAs move was a bit risky, but what do you Well, I

Dean Bochner 26:44
I would agree that well, first of all, yes, it definitely violates the terms of the way the rule as it is written now, which is, which is the problem, I think, but I also think that it was an acceptable thing to do to bring a factual scenario before the Supreme Court saying, say, if you, you know, if you have factual scenario X they'd be getting away with murder is what is what the district attorney was, was saying. And, you know, they're not they weren't citing it for it. The distinction is between factual and legal, just to put it very broadly, and they were they were citing it for for factual purposes, not not for legal precedent, not for the persuasiveness of the legal decision.

Tim kowal 27:41
Right. So you think that should be permissible, it's not permissible, as under the rule as drafted, but you think that that ought to be a permissible use?

Dean Bochner 27:50
Right? I it shouldn't be. It already is, in effect, de facto, it is acceptable. It's just, it's not acceptable under the way the rule is currently written.

Tim kowal 28:05
That's interesting. So de facto, it's acceptable. So you've seen enough cases that would suggest that, you know, maybe give you a little bit of heartburn, because you are technically in violation of the of the text of the of the rule. But you've seen enough these cases where the court doesn't mind that deviation. Right.

Dean Bochner 28:23
And, and the Supreme Court itself, does it I there was a year or two ago, there was a separate statement when the supreme court denied review in a case. And one of the justices wrote this separate statement and cited to a whole host of unpublished opinions, saying, you know, this problem is not going to go away. Look, look at all these non pubs that have this, you know, the same issue keeps coming up. So we should we should address it?

Tim kowal 28:57
Well, you know, I should mention that I think that people versus Gentile case we just talked about, I think, I think, David, you tipped me off to that. I think I was probably reading your blog last year, and that's probably how I first learned of it. And I think I also learned about this, this next case from you as well. First people versus American surety company. That was that was also last year. That case upheld the validity of a bail bond. Even though the amount was the wrong amount, the bond company had relied on a published 1919 Court of Appeal holding for its position. The court rejected that holding stating, quote, in the course of our research we encountered but cannot mention by name, a number of unpublished Court of Appeal decisions, rejecting Americans argument and distinguishing the earlier Court of Appeal opinion and quote, and so David, you had mentioned that well, the court itself does, you know, cites to these unpublished cases sometimes. So I thought, well, so So hearing I put you to the test, but if the court did it, here's what I propose lawyers might try in this in the same spirit, you tell me if you think it's putting the toe over the line. So here's here's what I suggest. If you find that that great case, it's on all fours, and you really want to cite it to the court, but you know, you can't consistent with rule eight point 1115 You could state while rule eight point 1115 prohibits us from naming unpublished decisions following the first appellate districts example in person, people versus American surety company, and then put the quote to put the citation of that published case, we simply note that a recent opinion of district X is responsive to this question. And then maybe it's like a little breadcrumb, they can go and find the Embed unpublished opinion,

David Ettinger 30:37
in my opinion, that's and I think the Court of Appeal was over the line. In the American surety case, the rule is not just against citation of the rule, it's also relying, I mean, citation of an unpublished opinion, it's also you cannot rely on an unpublished opinion. And here, they were relying on unpublished opinions, and not just for factual scenarios, they were relying on the law of stated in these unpublished opinions. And you know, just because they say, you know, just because they say, well, we can't name the cases, you know, that that's, I think it was still a violation of the rule. Both the spirit and the, you know, so even under our even under our proposed revision of the rule, I think it would still be a violation of the of the rule.

David Ettinger 31:29
Yeah, I would agree with David said, and I think the same is true of the statement that you proposed, you're relying on the unpublished opinion that you're referencing before its precedential value, which is barred by the rule.

Tim kowal 31:43
Yeah, I get that distinction. So So you're saying that even in the the people versus American surety case, the court was referencing those previous unpublished opinions as though they were precedent, which would be saying, look, there's all these other cases that held for this proposition so therefore, it must be right now. Now, let me offer this if instead, the court had said let's let's just forget any kind of reference explicit or otherwise, to these unpublished decisions, and let's just let's just crib there same reasoning that we find to be so persuasive because obviously the court there's no you know, there's there's no copyright on persuasive reasoning so we could just crib from that I wanted to relate. A recent legal seminar appellate seminar I attended, there was a an appellate research attorney there who mentioned to my great surprise that attorneys really ought not to just quote, quote from unpublished decisions, they really need to, you know, wordsmith it to make it their own their own words, because it's it's kind of a form of plagiarism. And the attorney thought that, that even quoting or cribbing, from the reasoning of unpublished decisions, ran afoul of a point 1115. I wonder what do you think about that?

Unknown Speaker 32:58
You mean, putting it in quote mark in quotation or just using

Tim kowal 33:02
quotations is just copy and pasting the language from the unpublished?

Dean Bochner 33:07
I think I don't see anything wrong with that. I personally, I would try to make I guess he used the word wordsmith. I guess I would try to make make it my own language. But I don't see anything wrong with using the thoughts of from an unpublished opinion in in a brief, without without citation to it. Yeah,

David Ettinger 33:37
I would agree with that, too. And one of the, you know, great treatises on civil appellate practice expressly says that, that that practice is authorized to take the reasoning of an unpublished opinion and put it in your brief.

Tim kowal 33:55
Yeah, like I said, I was very surprised that this research attorney had that view of things, but they said that, you know, they they look, they look hard at those things, and they will, they will find it, and it for whatever reason, it seemed to rub that attorney the wrong way. I didn't get an indication of whether that view is shared by the justices at the Court of Appeal where she worked, but I found that surprising via this. What district was that court?

Jeff lewis 34:21
Court of Appeal attorney speaking? Recall? On the spot, we can edit a podcast later,

Tim kowal 34:27
I can't quite remember I want to say was the second district I see. Okay. All

Dean Bochner 34:31
right. In just before you leave that point, I had an appeal where a Superior Court I think it was the commissioner but the Superior Court in its statement of decision lifted portions of a non unpublished Court of Appeal opinion and put it into the statement of decision without any attribution and in researching for the appeal, I found the non pub recognize the language. And that's I saw nothing wrong with the Superior Court doing that.

Tim kowal 35:09
No, again, I can't imagine what what would be wrong with it. But reasonable minds can differ, apparently. Now, in your article, you had a you had a really good case quote that I had not seen before. It's from the case Hart versus machinary. It's a Ninth Circuit case from 2001. And the quote is that in writing a precedential opinion, quote, It is exacting an extremely time consuming task. And few if any appellate courts have the resources to write presidential opinions in every case that comes before them and quote, and I thought upon reading that, that I assumed the author of that quote, hoped it would, it would arouse sympathy for the courts practice of making certain cases non sizeable but for me, it had the opposite effect. I would argue that the fact that an appellate decision is precedential, and that all the and that the court labor is all the greater under that reality is part of the guarantee the judiciary provides to litigants that its decisions are on the level, because it tells litigants that hey, you might not like it. But after careful consideration, this is the rule we've come up with that's going to apply across the board. It's nothing personal. This isn't just a rule, we crafted just for your case, it's going to apply to every case that comes before us. But when a court decides to remove that precedential value, it seems to remove an important part of that guarantee that our opinions are precedential. They apply to every case, not only to yours. So what guarantee do litigants have, that the decision is not just directed at a particular result? In their case, indeed, in an unpublished opinion, what is the opinion but personal, it's literally the result, the court fashion for these particular parties, and no one else? I wonder what your what your reaction to that that extreme cynicism on my part would be?

Dean Bochner 37:03
Well, hey, it's not necessarily that it's just for those parties. Well, I mean, the opinion because it is not published is just for the parties. But the reason it might be unpublished is because the law might be so clear, that they're just restating the court is just restating a rule from well settled law. You know, I've had I've had a few opinions, a few appeals where the other side was in was challenging in the Court of Appeal settled California Supreme Court law. And, you know, I did very short briefs saying, Can here's the settled law. And the Court of Appeals said, Yep, that's settled law. We can't We can't change Supreme Court law. And it came out in a very short unpublished opinion, which is what the Court of Appeals should have done.

Tim kowal 38:05
Right. Right. Certainly, that happens sometimes, but in in some cases, you get reasoning that, that seems, you know, it. It doesn't it's not followed by citations to you know, well, civil law, it's just some reasoning that maybe seems uh, you know, not quite thought all the way through and leaves the reader a little bit unsatisfied, and it doesn't have any precedential breadcrumbs that you could follow it through. And you just wonder if, you know, maybe this this opinion was not thought all the way through? And I wonder if that's why was on?

Dean Bochner 38:37
Well, I think I think your your argument would be with the court of appeals decision not to publish a particular decision, if it's, if it's unique, or, or different in some way that's not covered by other other cases. And it's the kind of case that would be likely to be valuable precedent to be cited by others in the future, then the court should be publishing the case. So I think, you know, the the criticism should be more directed at the court deciding not to publish, then at the not the no citation role. Hmm.

Tim kowal 39:21
That's a good that's a good point. I thought maybe I would, I would start a public service and just start, just start sending out motions because anyone can move for publication have an opinion, it doesn't have to be one of the litigants to the case. So maybe that could be a useful, useful public service. I just don't want my name to be mud by filing a filing motions hither and yon. Now in your in your article you propose to modifications to rule a point 1115 Would you tell our listeners about the modifications you're proposing? Sure,

David Ettinger 39:54
we propose a modest revision and then a more comprehensive revision of the modest revision. We're just adding The third exception to the rule and that exception would allow parties to cite unpublished opinions for the purpose of showing a conflict among Court of Appeal decisions in order to obtain California Supreme Court review. This would resemble the approach that the Ninth Circuit took in a rule that allows unpublished dispositions from that court to be cited in petitions for panel rehearing, or rehearing on bonk to demonstrate the existence of a conflict. And just to clarify an answer I gave earlier, I have cited unpublished opinions for the purpose of, you know, in petitions for review or in opposing petitions for review. It's just some of the other purposes I haven't cited them for the more comprehensive revision that we proposed would limit the current rule by prohibiting courts and parties from citing unpublished opinions as binding or persuasive precedent. And if there the rule were revised in that way, we think it would be more narrowly tailored to resolve the problem it was intended to address, which is to prevent the citation of non pubs as precedent under this rule. Non pubs could be cited in a wide variety of unobjectionable circumstances, like the ones we discussed in the article.

Tim kowal 41:14
Okay. You know, do you have a preference for one of those proposals over the other? Are you are you in favor of the narrow amendment or the broader amendment?

David Ettinger 41:23
Personally, I'm in favor of the the more comprehensive revision? I don't know how David feels. But that's my preference.

Dean Bochner 41:31
I agree with the you know, that that would most appropriately align the practice the rule with the current practice?

Tim kowal 41:45
Well, I agree with you, obviously. And I told you that Jeff, and I differ on the no citation rule, Jeff, is against the notes citation rule, I'm strongly against the no citation rule.

Dean Bochner 41:57
Well, there are just so many opinion, I mean, you would be you know, I don't know, maybe five 10%. of Court of Appeal, opinions are, are published right now. And the vast majority of the ones where the Court of Appeal decides not to publish are appropriately not published, if you if you look at them, you know, you just just pick one at random, it will probably be one that you could not imagine a need to cite to that opinion in the future, in under under any circumstances. And that's really the test is, you know, is this is this opinion, going to be helpful, as has precedent for somebody in a future case. And the vast majority of the the non pubs are not,

Tim kowal 42:51
I wanted to ask you just to tie back into our discussion on the shadow docket, I might argue that it's fair to talk about some of these unpublished cases as being part of the Court of Appeals shadow docket because they reflect a substantial majority of the court's judicial work, and yet it's outside of the normal, quote unquote, daylight operation of judicial lawmaking. So what do you think with that, would that be a fair extension of the term shadow docket or no?

Dean Bochner 43:17
Well, if it's a different shadow, you know, there's these the non pubs still come after full appellate process and still comes after full briefing oral argument you get you get a an opinion, a written opinion with reason stated. So it's, it's not that kind of shadow, the shadow you're talking about is it's just not as publicized. But the public doesn't know about it as much even it there's certainly public documents, they're available on the courts website. They're there on Westlaw and Lexus, but they're just not as as prominent and as publicized as as a published opinion.

Tim kowal 44:02
Yeah. Yeah. As we talked about, if you can find a find a law student who will talk about an unpublished opinion in a law review article, you can cite that to the court, but you can't cite to the court what it did last week, if it was in an unpublished opinion.

Dean Bochner 44:14
Right, and if the publication criteria is used is applied correctly, there would be no reason to cite to that opinion that they that they did next last week, so yeah.

Tim kowal 44:28
Well, Jeff, do we have time before you need to slink out to do a quick lightning round? It is a lightning round after all.

Jeff lewis 44:36
Okay, yeah, we'll do a quick lightning round. These are the most vexing questions that concern appellate nerds around the world and try to keep your answers short. One word, one sentence, keep it super short. So I don't get in trouble with my wife for being late to my next appointment. All right. In terms of briefing Bob preference, said schoolbooks Garamond or something else.

Dean Bochner 45:04
In what do we what do we use? I don't even know what we use.

David Ettinger 45:07
I believe it's century schoolbook is what we use 13 points.

Jeff lewis 45:11
That is the right answer. All right, two spaces or one space after a period.

Two spaces.

David Ettinger 45:18
Yeah, I'm a to spacers. Well, wow,

Tim kowal 20:21
you don't have a firm convention.

David Ettinger 45:23
I believe our firm convention on that point is to leave it up to the individual attorney to their preference. And from what I've seen, a lot of the younger attorneys prefer one space. A lot of the old timers like myself, prefer to spaces. Oh,

Tim kowal 45:40
I thought they'd bring in the reins on on you and have a universal convention. That's interesting. Okay.

Jeff lewis 45:48
All right. Ah, penultimate question here. Do you include the table of contents in your table of contents? That's a great question.

Dean Bochner 45:56
You know, that's something you need to ask our legal assistants about. I don't know,

Tim kowal 46:02
my brief for not having the table of contents and my table of contents?

David Ettinger 46:06
I don't think we do. But I'd have to double check that one.

Jeff lewis 46:09
All right. Last question. For the arguments, the major arguments in your legal briefs, all caps, initial caps or sentence case.

Dean Bochner 46:17
Go ahead. Do

David Ettinger 46:18
I believe we use sentence case? But again, I would I would defer to our legal assistants on that question.

Dean Bochner 46:25
But I think that's right. I think we've fairly recently changed that. To make it just just sentence case for all our headings.

Jeff lewis 46:35
Alright, well, you too, survived our world famous lightning round. Congratulations. And I guess we'll pose those questions your legal system. So when they're on their podcast

Tim kowal 46:45
Next, go to produce them next time. Alright, Jeff, I think that wraps us up today.

Jeff lewis 46:55
Yeah, if you have suggestions for future episodes, please email us at Cal podcast@gmail.com. And in our upcoming episodes, look for tips on how to lay the groundwork groundwork for an appeal with trial.

Tim kowal 47:05
Thanks. See you next time.

Anouncer 47:07
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