From the “did they really have to publish this?” files:

You cannot avoid anti-SLAPP fees by dismissing the offending allegations. That is already settled law. But in Catlin Ins. Co. Inc. v. Danko Meredith Law Firm, Inc. (D1d4 Jan. 11, 2022 no. A160358) ___ Cal.Rptr.3d ___ 2022 WL 101840, the plaintiff dismissed its complaint after the defendant filed an anti-SLAPP motion. The court held, in a published opinion, that the trial court did not err in refusing to rule on the anti-SLAPP motion, thus never establishing the predicate to the defendant’s right to anti-SLAPP fees.

After you learn the facts, you will understand why both the trial court and the appellate court were not excited about rewarding this defendant with anti-SLAPP fees. But as Justice Brown notes in dissent, the majority should be more mindful of the problems this holding will create for worthy anti-SLAPP movants in the future.

The plaintiff, Catlin, and the defendant, the Danko firm, were involved in a prior lawsuit. They settled that lawsuit. Catlin, an insurance company, paid the $180,000 settlement in the prior suit to the Danko firm. So far, so good. But then Catlin goofed and sent a second $180,000 to Danko — and obvious double-payment. When Catlin realized the error and asked the Danko firm to please give the second $180,000 back, the Danko firm refused, arguing the settlement released Catlin’s right to recover the overpayment.

As the court noted, Danko asserted, in effect, “the venerable principle of ‘finders, keepers.’”

Danko filed an anti-SLAPP motion, probably hoping for more unearned riches. Like many anti-SLAPP motions, Danko’s anti-SLAPP did not seek attorney fees, but instead explicitly stated the moving party was reserving its right to seek fees until after the anti-SLAPP motion was decided.

Then the plaintiff pulled the eject cord. It dismissed the complaint. (Catlin refiled in district court where it defeated Danko’s anti-SLAPP motion.) On that basis, the court denied the anti-SLAPP motion as moot. The Danko firm begged the court to rule on the motion so it could then file a motion for fees, but the court responded: “I'm trying to tell you without telling you that I'm not sure that you really want to bring a motion for attorneys’ fees.” The trial court indicated Danko could file a separate fee motion that included the same anti-SLAPP arguments. But Danko declined, and appealed instead.

Held: When a Plaintiff Dismisses a Complaint After Defendant Files an Anti-SLAPP Motion, the Defendant Must File a Fee Motion — the Anti-SLAPP Motion Is No Longer Justiciable.

The First District Court of Appeal held the trial court was correct not to rule on the anti-SLAPP motion after the plaintiff voluntarily dismissed. Instead, to seek anti-SLAPP fees, the defendant needed to file a fee motion that included the anti-SLAPP arguments.

The court drew on Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869 (Yang), which held that, after a complaint is voluntarily dismissed, the trial court loses jurisdiction to rule on an anti-SLAPP motion; the trial court “only had jurisdiction to thereafter entertain a motion brought by defendants for attorney fees and costs.” (Id. at p. 881.) And in this post-dismissal scenario, the trial court may decide the merits of the anti-SLAPP motion as long as they are raised in a fee motion. Liu v. Moore (1999) 69 Cal.App.4th 745, 749 (Liu)

Here, the Danko defendant-appellants could have filed a post-dismissal motion for anti-SLAPP fees, where they could have copy-and-pasted the merits of their anti-SLAPP motion. But instead they “stubbornly stuck to their position that [the trial court] had a duty to rule without a pending motion.”

Ultimately, the Danko defendant-appellants chose not to file a fee motion or a memo of costs. As a result, “they waived any claim to a fee award.”

This seems the right result for these particular parties. But how will this holding affect parties in more typical cases?

Dissenting, Justice Brown Would Hold the Trial Court Should Decide an Anti-SLAPP Motion Even After the Plaintiff Voluntarily Dismisses:

In dissent, Justice Brown noted that no one disputed the reason the Danko defendants wanted their anti-SLAPP motion decided was as a predicate to a fee award. Justice Brown stated it was wasteful and inefficient to force the defendants to file a motion that would involve “cutting and pasting the arguments from their anti-SLAPP motions.” And this would repeat in the opposition and reply briefs. Why not, Justice Brown wants to know, just rule on the arguments already briefed?

Justice Brown acknowledged that her opinion supports unsympathetic appellants, who "demonstrated in the underlying lawsuit a willingness to push the boundaries of what they were legitimately entitled to recover.” But so long as the court is publishing the opinion, its holding will apply to deserving anti-SLAPP movants. And there “is a possibility,” Justice Brown warns, “for even greater unfairness in future cases.” Justice Brown posits “a scenario in which (1) a defendant files an anti-SLAPP motion; (2) the plaintiff promptly voluntarily dismisses, serves notice, and then opposes the motion; and (3) the motion is heard more than 60 days after the voluntary dismissal. In such a scenario, under the majority opinion's rule, a defendant who loses the gamble that the trial court will find the requested relief in an anti-SLAPP motion sufficiently clear to trigger a duty to rule on the merits will be completely deprived of the right to fees. The only way to avoid such unfairness would be for the defendant to file, before the trial court rules, a second set of papers, cutting and pasting its anti-SLAPP arguments in a largely redundant motion for fees. Competent counsel will in most cases choose the latter course, leading once more to duplicated work and increased costs for litigants.”

Justice Brown also responded to a point in the majority that seemed to me a non sequitur. The majority said that, by insisting on a ruling on their anti-SLAPP motion, the Danko defendants were seeking an “advisory opinion on whether [moving for fees] was a wise course.” The majority appeared to assume that, when the Danko defendants filed their fee motion, the trial court might have concluded their anti-SLAPP motion was frivolous (which is what the trial court telegraphed at a hearing), and then award the plaintiff its fees. But Justice Brown noted that this does not follow: “had the trial court believed the anti-SLAPP motions were frivolous, it could have so ruled, which then would have invited Catlin to file a motion for an award of a specific amount of fees. There was no need to require the Danko Appellants to file a second, redundant motion to force them to run this risk.”

Comment:

Justice Brown does not address the majority’s point that a voluntary dismissal raises a jurisdictional limitation to the trial court’s authority to decide anti-SLAPP motions that do not also seek fees. Despite the strength of Justice Brown’s other points in dissent, I think this is the strongest point in favor of the majority opinion. The fact that Justice Brown did not have a response to it tends to confirm that the majority opinion is, at least, technically correct. (Which, from the standpoint of appellate procedure, usually is the best kind of correct.)

Ultimately, what seems to me incongruous about the Catlin v. Danko rule — which requires anti-SLAPP movants to file a separate fee motion in the event the plaintiff voluntarily dismisses — is based on facts that disfavor the anti-SLAPP movant (because the anti-SLAPP motion was probably frivolous). This seems to me an odd way to develop case law interpreting a statute that is supposed to favor anti-SLAPP motions.

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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A trial court’s rulings on evidentiary objections are tough to reverse on appeal. But what about when the rulings are reflexive and not really supported by any analysis? In some cases, such “blanket” rulings may be found to be an abuse of discretion and reversed on appeal.

The appellant argued improper “blanket” rulings were the reason an anti-SLAPP motion was granted against him in Foley v. McElroy (D4d1 Dec. 6, 2021 no. D077299) 2021 WL 5766572 (nonpub. opn.). But the Court of Appeal disagreed and affirmed.

When a priest sued his bishop and diocese for including the priest’s name in a list of clergy credibly accused of child molestation, the bishop and diocese filed an anti-SLAPP motion. In opposition, the priest submitted a declaration explaining he had been found “non constat” by the church tribunal, and that “non constat” was equivalent to “not guilty.” He also declared the “not guilty verdict” was “validated by Rome.”

But the trial court sustained the diocese’s objections to the two paragraphs in the declaration were these statements appeared. The trial court did not explain its rulings.

“Blanket” Evidentiary Rulings May Be Improper Where They Suggest an Absence of Discretion:

On appeal, the priest argued the rulings as to the two entire paragraphs without analysis amounted to a “blanket” ruling, and should be reversed for that reason.

The Court of Appeal disagreed:

“The so-called “blanket” rulings that appellate courts have viewed with suspicion are those excluding vast swaths of evidence on grounds so perfunctory they suggest reflexive, unconsidered judicial action. (See, e.g., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249–250, 254–256 (Nazir) [trial court ruling that perfunctorily sustained 763 out of 764 evidentiary objections, many of them frivolous, was an abuse of discretion because it could not possibly have been guided by fixed legal principles]; Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 522 (Greenspan) [trial court ruling sustaining all but one of defendants' objections to 30 of plaintiff's 39 exhibits was “cryptic”].)”

But the rulings here did not cover hundreds of objections, as in Nazir. And not even dozens, as in Greenspan. The rulings covered just two paragraphs containing about half a dozen statements. “This is not the sort of sweeping, presumptively unconsidered ruling criticized in Nazir and Greenspan.”

What about the fact that the rulings were not accompanied by any analysis? That alone does not establish error. “[U]nder Greenspan, we do not simply reverse cryptic evidentiary rulings, but rather we consider for ourselves whether each underlying objection has merit. (See Greenspan, at p. 522 [“Lacking any guidance from the trial court, we must consider every objection ... to decide if any has merit.”].)”

The court went on for several paragraphs to conclude the rulings were appropriate on grounds the statements were, hearsay, lacked foundation, and were improper lay opinion.

Reminder: Anti-SLAPP Rulings Are Themselves Appealable — Do Not Wait Around for the Judgment:

Although the trial court entered an order granting the anti-SLAPP motion, the plaintiff did not appeal from that order. Instead, the plaintiff waited until the court entered a judgment of dismissal. The plaintiff then appealed from the judgment.

The Court of Appeal noted this was improper, but reviewed the anti-SLAPP order anyway:

“An order granting or denying an anti-SLAPP motion is independently appealable (§§ 425.16, subd. (i), 904.1, subd. (a)(13)), and thus “we are foreclosed from reviewing that order on appeal from the judgment.” (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247.) In his notice of appeal, Foley stated he was appealing from the “judgment or order” entered on January 16, 2020, the date the trial court entered judgment, and he attached a copy of the judgment, but not the order, to the notice. However, we must construe a notice of appeal liberally. (Cal. Rules of Court, rule 8.100(a)(2); Luz v. Lopes (1960) 55 Cal.2d 54, 59 [“notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced”].) It is reasonably clear that Foley intended to appeal the order granting Defendants' anti-SLAPP motion, and the appeal would have been timely as to that order. Accordingly, we construe the appeal as properly brought from the order granting the anti-SLAPP motion.”

Of course, had the court waited longer than 60 days after notice of entry of the anti-SLAPP order before issuing the judgment, the plaintiff’s appeal would have been untimely.

Do not forget to appeal from the anti-SLAPP order directly. Do not wait around for a judgment.

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If you have finished briefing your appeal, you have already missed the best opportunity to prepare for oral argument. Appellate expert Myron Moskovitz tells Jeff Lewis and me why the time to begin preparing for oral argument is while drafting your reply brief.

Watch the clip here.

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

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

When you have a judgment against a shell entity, you can amend the judgment to name the sole shareholder or member. That is called piercing the corporate veil. Until a few years ago, it didn’t work in reverse: if you have a judgment against a judgment-proof business owner, you can’t add the entity as a judgment-debtor. (Postal Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1513, 77 Cal.Rptr.3d 96 (Postal Instant Press).) Except in 2017 in Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 221 (Curci), the same appellate court said you could do that — that is, at least if you were dealing with an LLC. (Curci did not apply to corporations.)

But what if the LLC has innocent members? It wouldn’t be fair to innocent LLC members to add the LLC to a judgment because of whatever some other member did. That is the issue that came up in Blizzard Energy, Inc. v. Schaefers (D2d6 Nov. 18, 2021 no. B305774) 71 Cal.App.5th 823. And the court answered the question by holding: Yes, the LLC may be liable for the judgment, but no, we can’t offer any suggestions how it could be done consistent with an innocent member’s rights. The court remanded for the trial court to think about that.

The judgment in Blizzard Energy was entered in Kansas, for fraud totaling $3.825 million. But the Kansas member is a member-manager of an LLC that owns property in Cambria in California. The Kansas defendant domesticated the judgment in California and moved under Code of Civil Procedure section 187 to name the LLC as an additional debtor.

The Pending Appeal Did Not Stay the Trial Court from Special Proceedings Under the Judgment Enforcements Act:

The appellant first argued that, as the underlying judgment was on appeal, the appellate stay deprived the trial court of jurisdiction to hear the motion to amend the judgment under section 187. The court disagreed: “Section 916 is inapplicable because it applies only to civil actions. Proceedings under the Act are special proceedings, not civil actions.”

A Judgment Creditor May Use Outside Reverse Veil Piercing to Add an LLC Debtor:

Under statute, the only remedy available to reach a judgment-debtor’s LLC interest is a charging order. (Corp. Code, § 17705.03, subd. (a).) And in 2008, the Fourth District Court of Appeal, Division Three, confirmed in Postal Instant Press, supra, 162 Cal.App.4th 1510, that “a third party creditor may not [reverse] pierce the corporate veil to reach corporate assets to satisfy a shareholder's personal liability.’ ”

But in 2017, the same Court of Appeal published Curci, supra, 14 Cal.App.5th 214, which allowed reverse veil piercing against LLCs.

But in Curci, there were no innocent third party members. The LLC in Curci was held 99% by the husband debtor, and 1% by the wife debtor. Here in Blizzard Energy, by contrast, the LLC was held 50% by the husband debtor, and 50% by a 75-year-old separated wife with no apparent connection to the underlying lawsuit. So the Court of Appeal reversed the trial court’s finding of alter ego and remanded for further proceedings to determine what to do about the wife.

What should the trial court consider when it comes to the wife? Here is all the guidance the appellate court provides: “The court must “weigh the equities to ‘ “ ‘accomplish ultimate justice.’ ” ’ ” (Hartford Casualty Ins. Co. v. Travelers Indemnity Co. (2003) 110 Cal.App.4th 710, 724, 2 Cal.Rptr.3d 18.)” On remand, “the court should weigh the competing equities and grant or deny relief depending on the balance of those equities.”

I take it that means: if the wife is found to be truly an innocent third party, alter ego must fail.

Recall that, once the LLC becomes a judgment-debtor, its assets may be seized, and it would be exposed to the extreme remedy of receivership. There is likely no practicable way an innocent member’s interests can be protected as against these measures. So the practical holding of Blizzard Energy seems to be: Yes, you may add an LLC as a judgment-debtor under Code of Civil Procedure section 187, but only if the LLC involves no innocent members.

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After you file the notice of appeal and the critical designation of record in the trial court, you have to file the Civil Case Information Statement in the Court of Appeal. The appellant’s attorney was sanctioned for filing an incomplete CCIS in Kuenzinger v. Doctors Med. Ctr. Modesto (D5, Dec. 22, 2021 no. F082272) 2021 WL 6064094 (nonpub. opn.) It was incomplete because the attorney failed to check one of the boxes.

Kuenzinger was a PAGA suit in which the trial court denied the employer’s petition to compel arbitration. The same employer had appealed and lost on the same ground in another case last year in a published opinion in Herrera v. Doctors Med. Ctr. of Modesto (2021) 67 Cal.App.5th 538, and lost again here.

But what was different in Kuenzinger is the appellant’s attorney failed to check the box in Part II of the CCIS form indicating that the appeal was entitled to calendar preference. The court held that the CCIS “is incomplete and inaccurate because Code of Civil Procedure section 1291.2 makes calendar preference mandatory. (See Bus. & Prof. Code, § 6068, subd. (d); Cal. Rules Prof. Conduct, rule 3.3, subd. (a)(1) [duty of candor].)"

While unusual, any “unreasonable violation” of the Rules of Court may be grounds for sanctions. Rules of Court, rule 8.276 makes the following acts sanctionable: “(1) Taking a frivolous appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not reasonably material to the appeal's determination; [¶] (3) Filing a frivolous motion; or [¶] (4) Committing any other unreasonable violation of these rules." The act must be analyzed both objectively and subjectively. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty).)

Here, the court found the violation was unreasonable both objectively and subjectively because the attorneys knew the appeal of an order denying arbitration was entitled to preference under Code of Civil Procedure section 1291.2 because they correctly checked the box and identified the statute in their CCIS in their prior appeal in Herrera.

The court sanctioned the appellant’s attorney $500, payable to the court.

Take the Civil Case Information Statement seriously. Because the court will.

Appeals Subject to Calendar Preference:

Not sure what kinds of appeals get calendar preference? Here is a list from the Rutter Guide:

Probate proceedings. [CCP § 44]
Child dependency proceedings under Welf. & Inst.C. § 300 et seq. (Welf. & Inst.C. § 395; In re M.M. (2007) 154 CA4th 897, 916, 65 CR3d 273, 287; and judgments freeing (or denying a recommendation to free) a child from parental custody and control under Fam.C. § 7800 et seq. (CCP § 45)). (Termination of parental rights appeals and juvenile dependency appeals in the expedited review project courts (see CRC 8.416(a)(1)) are processed on a fast track pursuant to special rules prescribed by CRC 8.416.)
Proceedings to recover possession of real property. [CCP § 1179a]
Arbitration proceedings. [CCP § 1291.2; Hedges v. Carrigan (2004) 117 CA4th 578, 582, 11 CR3d 787, 789-790]
Proceedings for declaratory relief in medical malpractice insurance cases. [CCP § 1062.5]
Contested election proceedings. [CCP § 44; Nguyen v. Super.Ct. (Nguyen) (2007) 150 CA4th 1006, 1009-1010, 58 CR3d 802, 804]
Certain proceedings involving environmental impact (Pub.Res.C. § 21167.1) and general plans (Gov.C. § 65752).
Certain proceedings involving property taxation or assessments (Rev. & Tax.C. § 5149). [See Rev. & Tax.C. § 4808]
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) cases. [Fam.C. § 3454]
Appeals from superior court decisions on Gov.C. § 71639.1 writ petitions in trial court labor relations disputes. [CRC 10.660(d)]
Appeals from a superior court decision on a writ petition under Gov.C. § 71675 (release of budget and management information by Judicial Council). [CRC 10.803(d)]
Appeals from an order dismissing or denying a petition to compel arbitration involving a claim under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst.C. § 15657.03) in which a party has been granted a trial court preference. [CCP § 1294.4 (added Stats. 2016, Ch. 628); see CCP § 1294.4(a)]

There are other types of appeals that may be subject to discretionary calendar preference in the Court of Appeal, such as actions that were entitled to “trial setting” preference in the trial court, like:

Party over age 70 who has a “substantial interest in the action as a whole” and whose health is such that preference is necessary to prevent prejudicing his or her interest in the litigation (CCP § 36(a)—mandatory preference on application);
Party (any age) suffering from illness or condition raising “substantial medical doubt of survival” beyond six months (CCP § 36(d)—discretionary preference on application supported by “clear and convincing medical documentation”);
Party to personal injury or wrongful death action who is under age 14 and who has a “substantial interest in the case as a whole” (CCP § 36(b)—mandatory preference on application);
Plaintiff seeking damages caused by defendant during commission of a felony for which defendant was convicted (CCP § 37—mandatory preference);
Contested child custody proceedings (Fam.C. § 3023—mandatory preference);
Eminent domain proceedings (CCP § 1260.010—mandatory preference).

(Thanks to Ben Shatz for referencing this case.)

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In a terse opinion, the Court of Appeal recently rejected an appeal on the basis that, other than referencing the appealability of the judgment, “[n]o other legal citations appear in [the appellant’s] brief.” The Second District in Singman v. IMDb.com, Inc. (D2d8, Dec. 20, 2021, No. B307783) 2021 WL 5997923 (pub. opn.) The court noted the only entry in the table of contents was Code of Civil Procedure section 904.1, an appealability statute that obviously does not impeach the judgment.

The Singman decision itself is less surprising than the one in Freitas v. Clear Recon Corp (D1d1, Dec. 8, 2021, No. A160762) 2021 WL 5822382, where an appeal of a dismissal following a demurrer failed because of lack of citations to the record. Dismissals on demurrers can be happy hunting for appellants, because all the factual presumptions go with the appellant and against the respondent (in most other appeals it is just the opposite). But the appellant in Freitas squandered the opportunity by not including the operative complaint in the appellate record. (Bains v. Moores (2009) 172 Cal.App.4th 445, 478 [rejecting claim that demurrer was improperly sustained where appellant failed to present adequate record by including operative complaint and demurrers].)

But the First District did not publish Freitas, probably because that proposition is already settled, and this was a pro per litigant.

So why did the Singman court decide to publish? The faux pas there in failing to cite legal authority also was committed by a pro per litigant. The opinion is only two pages long. There is no analysis of the merits. There is no discussion what the case is about. The court notes the appellant’s legal arguments are not supported by legal citations, but does not say what those arguments are. The court concludes its published opinion with this line: “An absence of legal authority forfeits an appellant's cause.” This is followed by an “e.g.” citation to Gonzalez v. City of Norwalk (2017) 17 Cal.App.5th 1295, 1311.)

Comment: The Singman opinion does not meet any of the criteria for publication, as I understand them. The standards for certifying an opinion for publication are set out in California Rules of Court rule 8.1105. Rule 8.1105 says an opinion should be published when it:

(1) Establishes a new rule of law;

(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;

(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;

(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;

(5) Addresses or creates an apparent conflict in the law;

(6) Involves a legal issue of continuing public interest;

(7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;

(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or

(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.

There is nothing new about the rule the Singman court relied upon. And there is no analysis such as to support invocation of the other criteria under rule 8.1105. The Singman holding carries forward the well-settled that an appellant is expected to support each point with arguments and authority. (Orange County Water District v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 383 [" ‘ "Appellate briefs must provide argument and legal authority for the positions taken. ‘When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.’ " [Citation.] "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." ' [Citations.]"].)

The only thing different in Singman is that I have never seen another case reach the conclusion of forfeiture with so little analysis. In fact, there is so little context surrounding the holding in Singman that I suspect it will be abused. Going forward, even self-evident propositions in a legal brief may be met with a small-minded refutation citing Singman if the proposition does not include a citation.

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In this timely episode of the California Appellate Law Podcast, health care litigator Rick Jaffe joins appellate attorneys Tim Kowal and Jeff Lewis to discuss the maelstrom of lawsuits challenging vaccine mandates in state and federal trial courts and appellate courts throughout the nation.

Rick’s practice focuses on cutting-edge medical and legal issues across the country, and he is the author of Galileo’s Lawyer, a book telling the stories of medical mavericks and giving an insider’s view on high-profile and controversial medical cases.

The three attorneys discuss why medical-rights litigation is different from other types of litigation. Rick then explains the three basic types of vaccine lawsuits that the courts are facing in late 2021 and early 2022: (1) challenges to the federal agency and police power; (2) religious conscience challenges; and (3) challenges to the state police power.

Attorney Rick Jaffe’s biography and blog, and Twitter feed.

(Get Rick’s book, Galileo’s Lawyer.)

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

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

Transcript:

Rick Jaffe: my job is not really to make more. My job is to resolve a problem for

Anouncer: 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 Kowal and Jeff Lewis.

Jeff Lewis: Welcome everyone. I am Jeff Lewis

Tim Kowal: and I'm Tim Kowal, California department of podcasting license, pending moral character determination. 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 spread our PR split our practices evenly between trial and appellate courts.

And we work directly with trial attorneys to prepare cases for trial and appeal. In this podcast, we offer some of that perspective on various issues that arise both in the trial court and on the.

Jeff Lewis: Welcome to episode 21 of the

podcast,

Tim Kowal: a big 21, where we're allowed to gamble. Now, Jeff, today we welcome attorney Richard Jaffe to the show.

Rick is a healthcare litigator. He focuses on cutting edge medical and legal issues. He got his JD from Columbia law school where he was a member of the Columbia law review and a stone scholar. And he got his BA with honors from the Hebrew university of Jerusalem, where he received the prize for academic excellence and that in the history and philosophy of science, Rick has admitted to practice in California, Texas, and New York.

So he's worked all over, but he works on litigation and criminal and administrative investigations involving significant healthcare issues throughout the country. I was interested to read about, and I picked up Rick's 2008 book Galileo's lawyer. It tells stories about medical Mavericks who faced off against the government.

And it gives an insider's view on some high profile and controversial medical cases. So welcome to the podcast.

Rick Jaffe: Thank you glad to be here. Yeah. You know,

Tim Kowal: and before we start, I did want to give this disclaimer and Jeff, I think this is the first episode we've done on. That's going to deal with some current events and we're going to be talking about some of the litigation.

Uh, that's currently in progress over a vaccine mandates throughout the country. And I know Jeff and I both tried to avoid bringing politics into this legal podcast. And I want to ensure our audience that that's not going to change. Now, just like every other episode, we're going to talk about, uh, issues on which people may have strong opinions.

The only difference is that in this episode, we're going to be branching out from debates. Typography. So I believe in, I also believe in disclosing biases whenever talking about controversial topics so that the audience can adjust their attendance accordingly. So in that spirit, I want to disclose that while I'm not ideological about vaccines, I am generally supportive of the challenges in some of these vaccine mandate cases.

And Rick, the reason I wanted to bring you on is because every week, even, almost every day, there are these new court rulings coming down, having something to do with vaccine mandates. And I saw that you wrote a great post on your blog helping make sense of a lot of these court rulings. And I thought our audience would benefit from hearing you talk about it and.

But before we get to that, I have been following your blog for a couple of years. Rick Jeffy, esq.com. It's an excellent resource for staying in it, staying on top of a lot of these current, you know, cutting edge medical litigation issues, including health policy, medical, marijuana, stem, cell patients, rights, vaccines, and medical board prosecutions.

I wondered if you would tell us a little bit about why you began writing on these topics.

Rick Jaffe: Well, I've been doing this healthcare law gig for a long time, you know, upwards of 35 years. And actually in 2016, a friend of mine had base of health. Freedom person asked me to do a blog on his post for his blog on what I thought was wrong with the American healthcare system.

So I spent some time doing that and, you know, I have a perspective I do. I've done FDA work criminal. Licensing work, all kinds of work for, you know, that it's involved in the healthcare system. So I end up writing this blog and it got pretty good response. So I ended up decided I started, well, why not do my own blog at the time?

In 2016, there were the big issue in healthcare policy was stem cells. They were about to revise the guidance documents for what is legal. And we don't have to go into that now, but basically the FDA's view was they could regulate a person's own stem cells if they re removed and reimplanted to the person.

And that's something, that's one of the issues where I just, I think it's. So during that whole process of, of review of these guidelines by the FDA, I started doing posts about the testimony I in effect was reporter following the two or three day hearing before the FDA on these revised guidance documents, which of course of documents published by the federal government on various topics saying giving their best, most recent analysis.

So I enjoy doing it and I like writing and I have been struggling with,

Tim Kowal: and where are you practicing in this area

at the time?

Rick Jaffe: Oh yeah, I I've done a great deal of work on stem cells. I did the first two criminal cases, criminal federal criminal stem cell cases in the country. And where was that? That was in 2003 and 2004.

I mean, my guy

Tim Kowal: practicing

in New

Rick Jaffe: York, I was in Texas, Texas. So at that time, these were the first two clinics that offered stem cell treatment in the country. And then, and then I represented the guy who, who, who, who started it and then did that case. I got that case on, you know, like a lot of lawyers in criminal cases, you don't hear about the good stuff.

So I got that. They never went to indictment. They offered, they want them to plead out, you know, I called them. I thought, no, we had some pretty good evidence, made a presentation and it just disappeared the next to day I got post indictment and then all that. So it's just a field I've been working with. I wrote the first opinion, as far as I know, allowing or not allowing, but basically saying that the use of what's called mesenchymal stem cells and autologous treatment to treatment in the same day surgical procedure was allowed.

And that started a whole floodgate of all of these clinics. Now they're like a thousand of them. And as a result in the last 10 years, the FDA has tried to stop. Culminating in this guidance document saying that you can't use your own stem cells if they'd been removed and more than minimally manipulated.

So that's an area. That's one of my areas of interest. I have a few different areas of interests that I focus on stem cells.

Tim Kowal: Yeah. Well, and you know, personally, I've been interested in getting involved in some of these areas that you write about like medical board prosecutions, but frankly, I find it daunting the, the level that I perceive to be the level of, you know, high level of medical knowledge that you would need to be effective in that area.

And I wondered, I wonder what your opinion on that is. Should that be a barrier to entry? Should, should attorneys be scared off from litigating in these spaces? If there, if it's something that is of interest to them, if they don't have that high level of

medical,

Rick Jaffe: you know, if it's, if it's a new field, I wouldn't like to do.

That, that lawyer's first client or second client. So I think it really, you know, it depends. I mean, I don't think it's really, I think in terms of the space, if you broaden the question out, especially if you consider vaccine cases, a lot of these vaccine cases are straight up constitutional law cases, which lawyers feel very comfortable with, even if you don't know the specific procedures.

So if you broaden it out to the current litigation, you know, I mean, if you, if you, if you have a client and you have con constitutes a claim in terms of the medicine in medical board case, you know, look, lawyers, litigators have like a bathtub mentality. They get, they, they learn quick, right? They fill up the bathtub quickly and then they empty that out.

I mean, you know, I, I used to say, I don't want my kids to be lawyers. Cause I feel lawyers are smart people that have no towels. And one of the, one of the talents is they can learn quickly and that's what litigators do. And that's what you do as an appellate lawyer. Right. And that's what you train do. So I think in general, you know, we're pretty quick studies, the more you know, about the med a medicine, the better and most that just as an observation, most of the practitioners in California and in Texas and, and in New York, that's what I know most about.

Most people are pretty much specialized that or in, they could do medical mal, you know what I mean? So they work on, on an area in Texas. Most of the private board lawyers in Austin are former workers in the, uh, medical board department. So you have this kind of a specialized bar, but anybody can practice in there.

And it just depends on what your level of comfort is. And frankly, who's going to hire a guy. Y, you know, that is going to say, yeah, it'd be really a fun thing to do. And you know, I'd like to get involved in the field. So I think, I think that's it, that's, that's, I think it's unlikely from a practical point of view that a doctor is going to risk someone that hasn't done something, you know, in a field.

So cause it's, it's their license. So, but in general, I mean, yeah, I mean, it's just a specialized body of knowledge. Look, their drug cases. I mean, a lot of medical licensing is substance abuse for doctors, right? So that's an area where it doesn't require expertise. I mean, you, you know, so I think it's, let me tell you about one big advantage of this stuff in medical board worker, administrative law, all of the things that you people focus on in the appellate court cases like comments or like fonts, none of that really matters.

Even the niceties of here. Yeah. You know, so it's, it's much more wild west. It's more informal. You don't have a, you don't really have a hearsay rule. It just what general people or recommend.

Tim Kowal: Yeah.

Well that, something about that, I don't want to say it bothers me, but I, I have a concern that whenever an area of law becomes so, so specialized that other, that generalists have this barrier to entry, that they can't get involved.

It, it worries me that, uh, you know, that judges could make rulings that no, one's going to understand it doesn't matter if they're published. If no one can understand them, it's got so much jargon and, you know, eight syllable words in there that are the medic. You, you can't read it without a medical dictionary by your side.

I wonder if it takes it out of the, the, you know, the rule of law,

Tim Kowal: to speak.

Rick Jaffe: I don't think that's a problem. I think by and large, the opinions of the judges, most of whom do not have medical training. Very readable. But on the other hand, what happens in California and the medical board cases in most of these, these cases have tried before the office of administrative hearings and these offices.

And there are a few around that the state will have two or three judges who specialize in these medical board cases because they hear their, their clients are administrative agencies throughout. That could be the real estate construction business. It could be insurance, it could be anything. So what they do do is target certain judges, judges who've developed some expertise.

I haven't seen one thing. I will say one good thing. I will say about the administrative law judge's opinions. And I don't have much good things, many good things to say, but one of the good things I'd say the opinions are, are very, very. And understandable by also, I don't, I think it's a, it's a concern, you know, but I haven't seen that issue in New York.

For example, they have, they have a commercial division that only handles sophisticated commercial cases and they have judges that only handle malpractice. So, and look, I don't have to tell you about the patent bar, right? Where you have to be a member of the patent bar to do it. And in order to do that, you have to have a, a background, a BA or a BS in engineering.

So this is kind of a hybrid of that. It's not the patent bar and it's not the general bar and, and. You know, I think there are easier ways to get into the field than, than medical board, which is basically administrative law. I mean, you know, maybe like these vaccine cases, I mean, you know, and the good thing about these vaccine cases, it's all out there.

All these bleedings are out there. So I mean, but, but in general, lawyers are smart guys. Appellate lawyers are very smart people. They have to be very precise thinkers and there's nothing inherently. It's not rocket science. You know what I mean? It's all learnable.

How much are your practices before the medical.

I, it depends now, you know, a good chunk of it, maybe half. I mean, I do some of this, the straight litigation. It really depends over the course of my career for awhile. I was doing a lot of FDA criminal work and insurance fraud or chiropractics, you know, the, these niches, like the NBDC model where doctors get together with chiropractors for reasons.

So I was doing that for a number of years and it just, it's just really what comes in, what interests me and lately it's been medical board work. And the vaccine issue is mostly what I've been doing, but I still do stem cell work. I do deceptive trade advertising for, for doctors who get in trouble with, with government agencies.

But, but it's, it's a lot of medical board work throughout the country.

Tim Kowal: But what is it that peaked your interest in the vaccine work?

Rick Jaffe: Well, you know, their freedom of choice issues. Right. And it really just, I just got roped into it. I just, I knew someone who it was about the time. It was the time that they're the main bill.

And this is SB 2 77, which was, is California law in effect from 2016 to 2019, which removed the personal belief exemption. But supposedly made the medical exemption more

Tim Kowal: robust. And these are further childhood vaccines that are exactly kids to go to K through 12.

Rick Jaffe: So there was a big brouhaha about that. A lot of, a lot of biting before the legislature, then they tried to have a recall and a group of physicians starting an organization to, to challenge the law and then to try to figure out how to write medical exemptions under the normal.

And so, so really it was just happenstance. I happened to know some of these members and I had a reputation from my work in Texas and they invited me to this meeting and I'm a pretty cynical guy and I'm pretty blunt person and told these guys not to do it. They were going to get in trouble. It was just, it was a crazy idea.

But of course, you know, I mean, in a movement, people want to do what they want to do. So all these doctors got together and they started doing it and then they started getting in trouble and they started getting trouble. So I started doing, you know, I got one case. The other case I eventually ended up with six or seven of these cases where investigations that the board was doing about these doctors who were writing these exemptions that were not in compliance with federal gosh, you know, contraindications.

So I just started doing a lot of these cases. And, and then, and then the biggest thing is they went after some. And there's newspaper reports. And they went up to the San Francisco city attorney when, after a doctor for his medical records for the patients that he wrote, because he was based in San Francisco.

So we resisted not up suing the San Francisco city attorney's office got a lot of publicity for that. And were

Tim Kowal: you successful in fending off that request?

Rick Jaffe: Yes. But in the sense that what is success success for an attorney is if you, if you fight to a draw and don't turn over records, you win. You know what I mean?

I, I never got, so I defended and the goal wasn't necessarily to get a judgment on the case. The goal was to stop the medical record. So we worked out a settlement whereby you know, the doc was already out of Dodge. He had already moved out because he got fired from his job. He had gone and. You know, I think the city attorney, so office, because of all the publicity realized it really wasn't in their interest to, to continue going after the doctor and the city attorney, their attorneys were reasonable, they're smart.

They got what they needed. I got what I needed. You know, I didn't declare victory. There was no need to do anything. I just needed to have them not get the records. So in that regard it was a success, but it's not like I have got some big decision and, you know, in my line of work, you know, it's not usually about getting the Supreme court to rule in your favor, you know, when you're dealing in my kinds of issues, if you live to fight another day, right.

And sometimes that's good enough. And that always, that doesn't always happen and it hasn't been happening lately. But in that particular case, It worked out. They never got the records.

Tim Kowal: Didn't you didn't get the big, get the big precedential decision. Are you, are you ever looking out for those cases that you can take up and get a big appellate opinion?

That's going to set precedent

Rick Jaffe: all the time. I mean, I made my name. We made our name 30, 40 years ago by making a lot of law in the field wall on rocket cheering, you know, against insurance companies. We, we established in the eighties on the right to a assumption of risk. So, so malpractice is a departure from the standard of care.

But what happens if the patient once a departure from the standard of care, alternative health, right? Don't they have the right. So the answer is we established the New York, the principal of my firm, you know, that patients have the right to seek unconventional healthcare. But if they do, they can express Lee, assume the risk and they.

They can't Sue for malpractice. So that was the biggest, one of the biggest precedents we ever established in the healthcare field. So you're always looking for that, but you know, you have to find the right case and it's hard to find the right case in a straight vaccine mandate case because of, you know, we live in pandemic times, but sure.

I'm always looking for that. But ultimately in my job, I mean, maybe it's different from the appellate court, like a guerrilla warrior. My job is not really to make law. My job is to resolve a problem for our client and which trot, which hopefully results in him continuing to do what he had been. It's just a different job then, you know, you

Tim Kowal: mentioned a SB 2 77, which was the, I think it was a 2015, the California bill that repealed the personal belief exemption for the childhood vaccines.

And then following that a couple of years later was SB 2 76, which limited the. Medical exemption. So after my personal belief and religious exemptions were, were, were repealed, the only thing left was for parents who did not want to comply with the vaccine mandates as to any, any, or all of the vaccines was to get a medical exemption from their physician.

And you mentioned representing some doctors who were writing some exemptions who were come after by the medical board. Um, and so SB 2 76, understand was the re was the legislative response to that to limit the medical exemptions that doctors could write. They had to comply with basically the, the, the CDC guidelines had some other limitations in it.

And I wondered that that always struck me as creating a bit of a tension between public health and private practice of medicine and public health being, you know, public health officials always, you know, they look at demographics, they, they don't, they don't know the names of any patients. They don't have any patients.

They, they only have the entire millions of people in the. That are their charge. Doctors don't have the public in their charge. They have individual patients. And so there's a little bit of a tension there. And for example, the AMA code of medical ethics says it has a provision that the patient physician relationship that says that the relationship between patient and physician is based on trust that gives rise to physicians, ethical obligations to place patients welfare.

Above obligations to other groups and to advocate for their patient's welfare. And it goes on to state that quote, a physician is ethically required to use sound medical judgment, holding the best interest of the patient as paramount and quote. So that will set the public officials who advocate vaccines on grounds of public health.

Uh, seem to have a little bit of a disconnect with doctors who I think ethically cannot advocate for vaccines, just because it advances a, an important public policy. They have to justify the administration of every individual vaccine on the basis of whether it's going to help the individual patient before me.

I wonder if that struck you as, as it does me as a tension between public health and. Private medical practice.

Rick Jaffe: Yeah. I'm going to click that, that AMA quote in my brief that I'm going to submit next week. Thank you. But that is a, that is the fundamental problem because it's not just public health officials.

It's doctors, which in California seemed to take the position that consideration of the public health is a factor in the standard of care, which it really shouldn't be because it's unethical. And this is the argument that we've been making in all these cases that, you know, the only obligation of the physician is to do what's best for the patient.

And, and really considerations of public health cannot be, cannot be that you can't consider them, especially. And remember what's going on? What's going on here? I mean this whole SB 2 77 was a result of this measles outbreak and Disney. Disneyland. And, and there were 177 cases that something like that knows fatalities.

And I think they eventually showed that almost 40% of the cases were not wild. They weren't, they weren't, you know, back really VAX symptoms of vaccine. So, you know,

Tim Kowal: think, are you referring to the phenomenon of shedding?

Rick Jaffe: Well, yeah, it could be shedding that's right. So, so, so it was only, only 60%. Where were, where were a lot, what were wild, right?

I mean, they did genomic testing, so that's exactly right. So, so that, that caused this whole removal, the SB 2 77. And you know, there is the bottom line is you are right. In my opinion. Anyway, there's a fundamental tension because a lot of the justification for childhood vaccination for diseases like polio, polio is a case where they don't have.

Wild polio and more it's all vaccine. And you have diseases for which an individual as an extremely small percentage of succumbing to the disease. And yet they mandated for everyone. And there are people according to the, the, the folks, you know, that I represent and their followers where the risk of vaccination is much greater than is recognized by the medical authorities as embodied in the federal CDC ACEF guidelines or the regular guidelines because vaccine vaccine adverse reactions are under under-reporting.

And typically when you go to your doctor, you tell your doctors, my kid has X, Y or Z. There'll be told that's the right thing, take two Tylenol. And it will be better in a couple of days. And that adverse event never gets reported to record it. So that's the thing, you know, I mean, that's the position that they have and, and the, and, and most of my clients say this in one context or another, my only job is to consider the patient.

I cannot consider the public health, you know, and these conditions of these patients are such that, you know, vaccine is not in their vaccination is not in their best interest, at least compared to the, the risk of contracting these diseases. Most of which either do not exist in this country or not fail.

That's essentially. You know, that's their position and my advocate, their position. I'm not, I'm a health care worker. Right. And I, I have some feelings which I personal beliefs, which I don't really express all the time, but that is the argument. Yeah.

Tim Kowal: I want to go back to another question. I wanted to ask you about medical boards and I wondered your opinion to the extent to which you think they are necessary.

I, I, I assume that most people think medical, medical boards are critically necessary and that without them, there's all these predator doctors or plaques that are going to cause a lot of harm to unsuspecting members of the public. And I wondered if through your years of experience dealing with these kinds of cases in medical boards, whether you w w what's your opinion about their, their importance in our public life and maintaining the integrity of the medical profession.

Rick Jaffe: Well, of course, I make my living in large part by representing doctors and medical board. So, you know, so I look, but I think that, I think I'm an objective guy. You know, I think that what happens with my perspective, and this is just my bias. My bias is that medical boards tend to go after the low hanging fruit and the low hanging fruit.

And in medical board work or doctors who have beliefs that are not within the mainstream and do things that are not considered standard of care, which essentially is my practice in front of the medical board. That being said, there's a lot of medical board work that deals with substance abuse, or it could be boundaries issues, and it could be incompetent doctors.

So, you know, Medical boards have evolved over, I don't know, a hundred, 150 years. I mean, they're, they are necessary. I think they're yeah, sure. I think they're necessary. I mean, it, you know, I mean, one of the main things that, the difference between, I don't know if you're aware of this, the difference between medical board law and malpractice law, civil malpractice law is that in medical board law, the board does not have to prove harm, right?

Unlike civil malpractice and the reason for it. And that's, that's something that doctors typically are late. People don't understand. And the stated reason for that is a medical board is trying to protect the public's interest and they don't have. Until someone has been injured and rather catching before that happens.

So in general, they're not going away from a practical point of view. Many of them are overzealous. There have been attempts to limit their powers. The biggest problem I have with medical boards is, is, is really the fact that there's a cartoon. I was going to try to download it, but you know, you've got to pay for it or something like that.

Here's the cartoon. I'll, I'll set it up. You have a dog with a tie. It's a courtroom setting a dog with a guy who's the defense lawyer, a Gog with a note guy who's sitting next to him. Who's the defendant. The judge is a cat and the jury is a cat. And the judge says to the defense counsel, you know, these cats say they can give him a fair and impartial verdict.

And that's how I feel most of the time when I go before. Medical boards, because especially with my kinds of clients, because to get on a medical board, it doesn't mean you're the biggest medical genius. It mostly means that you have political connections because they're normally appointed by the governor.

So you have people that know how to get along, know how to advance their career. Maybe they're good doctors, or maybe they're good layman, but, but they're not, they're not necessarily, you know, well, I don't want to say any more than that, but, but, and so that's what you have and they have certain predispositions.

And the biggest problem is ultimately the medical board is the judge and the jury. And sometimes in some states, they're even the. Right. Uh, and they supposedly keep things separate now in California. And a lot of states, they have, uh, the administrative office of administrative law here. Right. But something which most people in California practitioners don't know is that I was told recently by an LJ and the settlement conference, that it's not the purpose of the opposite of Mr.

Of to, to determine the standard of care that's set by the medical board. The job of these hearings is just see whether the practitioner has complied with the standard of care, which makes my job representing Maverick doctors, who almost by definition do not follow the standard of care. Very, very difficult.

So, so, so as, because they're the client, the client of the office of administrative law here, this is, is the medical board and other departments. And I think. Okay. So there's certain parameters of that. So as a result, it's not like that is the biggest difference between a board work and civil litigation.

It's the jury. You have an impartial jury. And my, I much prefer being in front of a jury. I don't get there very often in my kind of work. I wish I did. I much prefer going before a jury. And oftentimes I think, man, how did it get to the point where I now talk the judges? It, you know, it's all I do is fuck the judges by and large, even in these vaccine cases, you never talked to a jury and

Tim Kowal: it is a standard of medical care.

You said that's, that's the charge of the medical board, right? It determines the standard of care. Is that reviewable somehow,

Rick Jaffe: theoretically it's reviewable by, by this grid of administrative.

Tim Kowal: And then we'll just look at the record and you, you know, you better have brought a competent expert to advocate for an alternative standard of care or an expansion or modification of the standard of care.

So that, so that a superior court judge ruling on this rid of administrative mandamus can decide whether the medical board aired,

Rick Jaffe: right. And that's the way it goes. And actually in this taste that I'm still losing, I had, I had actually had a superior court judge say that the standard of care is, as I said, but he said, even under that statement here, you should have been revoked.

So, so, so it, it gets, it gets complicated, but judges, I think this is also in connection with this vaccination litigation. All the vaccine litigation judges are not doctors. They don't view themselves. They're very deferential to medical. They're comfortable. That's why, that's why you're comfortable with having judges saying, I think under the first amendment free exercise clause, you have a religious right to exemption.

They're really comfortable about doing that. They're not as comfortable saying, look, I think the prevailing opinion by, you know, infectious disease doctors is incorrect and I'm going to, you know, go with the defense, the plaintiff's experts that challenges the medical authority there. They're just not, that's not what they do.

They're not comfortable doing that. And that I think is the biggest problem. And the reason why all these straight challenges based on the mental medical experts. Fail because you can't judges aren't, don't feel themselves equipped to make those kinds of decisions and very people and people don't understand or appreciate that.

Even some of the lawyers in the field.

Tim Kowal: Yeah. Well, I, I picked up your book Galileo's lawyer. I think you wrote that back in 2008 and I started reading a little bit of it, and I wonder if you come to this because you know, talking about these medical Mavericks that reminded me of this book, I read earlier this year by Candice Maillard called destiny of the Republic.

And it was about James Garfield. And you probably know he was, he was the president who was assassinated just very short, just very after only a brief tenure in office. And I wasn't aware, and I think most people were not aware. He didn't actually, uh, succumb to the. The assassin actually failed. He died of sepsis because Joseph Lister had come up with the antisepsis theory, but that was not yet the standard of care.

The write it as a, as a quack. You know, I think there were, there was a Dr. Gross, who was a president of the medical Congress at the time, arguably the most famous surgeon in the country regarded sepsis, as dangerous said, the sepsis theory is dangerous. And as a result, James Garfield died from sepsis caused by his doctors, poking their fingers around.

And I'm looking for that bullet. When at that time there were a lot of civil war veterans who were walking around with a lot of, you know, bullet fragments banging around inside them harmlessly for the rest of their lives. That could have been James Garfield's fate. But instead these doctors conforming to the standard of care prevailing at the time, dug their fingers into them, gave him sepsis and Guild the president.

Rick Jaffe: That's the first guy that killed too. I mean, Washington died. I think he died of a bloody. He was sick and they just bled them to death because at the time bloodletting was the standard of care. And th the art, the, the doctor that we use in my field to make that point is not Lister, but Simone who basically introduced the antiseptic practices and surgery, you know, so you're a fan.

So we might feel, they always say, well, Selma Weiss was ridiculed for saying that you should disinfect your hands before you, you do what, when he was doing his, there was a lot of deaths in birds, you know, a birth procedure. So he recommended that you wash your hands, you know, alcohol and whatnot beforehand.

And he dramatically less than, than the number of deaths and childhood. That's what we, that's what we use.

Tim Kowal: Well, now that we spent about 40 minutes on these preliminary questions, let's get into the, the actual interview. I wanted to talk about your, your Roundup of the vaccine litigation across the nation.

Now on your blog earlier, this, this month, December, 2021, we're recording this and you have a post titled the whirlwind of COVID mandates and mandate litigation continues. And we'll post a link to that article in the show notes. And you described in that article, the various lawsuits and did so in a way that made a lot of sense to me.

Would you mind telling your, our re our audience, how you, how you kind of conceptualize the vaccine litigation landscape? I think you put them into kind of three different buckets.

Rick Jaffe: Yeah, there's subcategories too, but so basically the first category is traditional actions against municipalities or state law vaccine manner.

something vaccine mandates. I mean, George Washington ordered his troops and valley forge to get the smallpox vaccine. I mean, help win the war. Vaccine mandates have been around since, before the founding of the country in the states, under the state police power. So that, that, that, that have been, they have been upheld throughout the 19th century.

What happened in 1905, the vaccine mandate issue came before the Supreme court in Jacobson, as you all know, right. And that case upheld a mass, Cambridge, Massachusetts smallpox vaccine, under a theory of call it, you don't have the right to infect somebody else. Right. And then when you join a society, you give up certain rights.

So it was basically a view of your, your rights. Uh, to your own bodily integrity extend only to your body. If they go you'd all have the right to infect anybody else. So that was

Tim Kowal: at that time, the, the levels of scrutiny had not yet been developed by the footnote four of the Caroline products case. So we didn't, we don't have the benefit now, knowing whether Jacobson was decided under a rational basis or a strict scrutiny type of standard.

Rick Jaffe: That's true, but I'm not sure that's really important because they did have a level of review and they did say something about there has to be some connection. There was a standard review. It was different. I have a unusual view of that. I think that the current standards review. Result oriented and almost worthless.

I mean, it, you know, I mean, I, I think that they're there after the fact, justification's the standard of view you use largely determines your result. Right? I don't find that it has much predictive power, you know, so I would argue that Jacobson used different words, but they basically said there has to be some, you know, it's completely irrational, then maybe you can do it.

So maybe it was a low standard review. That being said, it doesn't so much matter what Jacobson said. It's how it's been interpreted since. Right. People talk about the $5 because what they upheld is a criminal sanction of $5. Well, we'll pay the $5 every, all the anti-vaxxers say, well, that only says you got to, you know, get a mandate or pay the five bucks.

Right. But what they forget is that in 1921 or 22, the Supreme court applied Jacobson to school mandates and said, we've already decided the inside the issue of whether you can mandate vaccines, you can under Jacobson. And since that time, every court has affirmed the ability of state or municipalities or counties to require mandatory vaccination.

And let me make a distinction mandatory versus compulsory. They don't line you up and stick in your arm. That's compulsory. What they do is in order to take advantage of a certain other benefit, like go to school, work for someplace. You have to get the vaccine that's mandatory vaccines. So Jacobson said what it said, but in the ensuing hundred years, it was, it was interpreted to basically allow vaccine mandates under the state police power.

And that is the first cat. Of vaccine litigations that would encompass the San Diego school districts, a mandate for vaccines, which is on review. That would include all the removal of the personal belief exemption under SB 2 77 and all the litigation. It would include any, it would include the New York health state and New York city mandatory vaccines for healthcare workers and police officers.

That's all challenging. The state's police power and the guiding rule is Jacobsen. And so far that has upheld. That is one class of Lydia. Okay.

Tim Kowal: So the first, the first bucket of vaccine challenges are these traditional action actions against state law. And, and you, you include local district mandates in those challenges as well.

And you think that probably at the apex at some point, the issue is, uh, that, that you're looking that a lot of people are looking to be decided is whether Jacobson is going to be affirmed, whether there are any nuances to it, whether it was limited to something more severe, like smallpox, chickenpox also falls under the same rule.

Okay. So that's, that's the first bucket. What's the next bucket, the next classification of these current challenges to the vaccine mandates

Rick Jaffe: recently, what you've had is the federal government getting involved in this. Historically the federal government has not been involved in vaccine mandates. There was no language from a hundred years ago in some Louisiana case saying it's the province of the state governments.

So what you have now is. What happened as Bidens went to a bunch of agencies says, figure out how we can oppose a federal mandate. Even though we said that he wasn't going to, because, you know, maybe he was justified in doing it. Maybe it wasn't not what we're here to discuss. We're not playing politics, but he sent this memo out.

I think perhaps metaphorically to all the different agencies, he says, come up with rational justifications for vaccine mandates. And so far as I can tell, they came up with three agencies, raised their hands, OSHA, which covers work workplaces, CMS, Medicare, which covers hospitalizations. And the third is the federal government's contracting with entities who get money from the government to do things so contractors.

So those are the three different two agencies and one area of federal level. The binder administration has says, well, look that gives us the authority to impose a vaccine mandate. So what has happened in the last, since those laws or regulations have been placed as you've had litigation around the country, challenge it, the, the right, the ability of the federal government to impose a vaccine mandate because basically the vaccine mandates have been historically the province of the state governments under the police power.

And I think one of you mentioned the point earlier at some point that this isn't even the federal, this is not Congress. This is essentially administrative action, right? And that raises a whole host of problems, especially in the context of the Supreme court. And when I think is going to be to continue to treat.

On the administrative state, which we see in other areas like with the doctrine, which I'm sure you're familiar with Chevron deference to administrative agents. So, and some of the Supreme court judges, I think, uh, especially the three on the hard, right. I mean, they're, I mean, they've been talking about getting rid of them, uh, or, or, uh, uh, Thomas has been talking about getting rid of the administrative state and Chevron for a long time.

So, and they they're now limiting it. And that is I think, directly related because it's just a backlash against the administrative state. And this would be just another, if not super exciting. Of the federal administrator and state interfering and people's lives are. So the argument is

Tim Kowal: okay, so this, the second bucket is, is challenging, challenging vaccine mandates that are coming down from the federal government.

And you broke that into agencies and then also federal contractors. And it seems like the, probably the lead among the lead challenges, lead arguments, and those challenges are going to be kind of procedural constitutional structural type of arguments, whereas

Rick Jaffe: the powers reserved to the state. Yeah, yeah,

Tim Kowal: yeah, yeah.

That's a 10th amendment. And then. So these are going to be a more procedural type of challenges where, you know, and maybe lurking in the background, there's still the Jacobson type of question, but that's a police power question, which is not, not among the federal powers. You'd have to. I think the, the government is going to have to find some sort of constitutional hook that authorize it, authorizes it to make these challenges.

And I think maybe in maybe lurking in the background may be a chief justice Roberts opinion in the Obamacare, the affordable care act case, which held that the commerce clause does not support the imposition of the, of the mandate to buy health insurance. Instead it was upheld as a tax. So if there's not a, if there's not authority to authorize the authorizing the federal government to impose a required.

To private individuals to buy healthcare. I'm not sure that there's a majority on that court, particularly now who's going to buy that there is a federal authorization to require citizens to, to, to accept a, a jab of a, of a, of a private medical

Rick Jaffe: product. Right. Well, I think, I think you're right. I think there have a hard time finding a constitutional justification.

I think what there w w what the issue is going to be is more statutory. So, and the OSHA case is I think there's, there's some tests. The test is whether there's a emergency and whether they have the power of the statute. So that that's an area where. You know, the Jacobson litigation, I think is, but under the statute, in terms of the OSHA stature, just really not clear.

I mean, how long has this emergency going to last? It's going to be 10 years. I mean, now we're the Omicron, then we're going to be the Democrat. And then there re how long do you have this power? Right. So I think there's probably the best argument to be made against that is the statutory argument that it exceeds the authority of the federal government under the OSHA laws to mandate something like that.

That, cause I mean, like, I agree with you. I think the constitutional question, I'm not sure what it is, but if there is one it's a loose , you know, so that's a second bucket now that's the third bucket. Now a lot of this litigation, right. Has to do with whether or not there is some kind of religious accommodation or exactly.

To a mandatory vaccine. All right. And, and, and let me make a fourth bucket here, just to tell you what this is, all of the buckets we've been talking about are government versus an individual, right? As all of your listeners know the, the, the constitution of the, the, the, the, the amendments that we're talking about really affect the relationship between the individual and the state in a why in the 14th amendment.

So private employers is a completely different issue, right? You don't have, you don't have necessarily a constitutional right to avoid a vaccine that your employer mandates. I mean, certainly not. You know, it's not a Jacobson issue. It's not necessarily a constitutional, so that's a completely different kind of issue as, as like a third and a half bucket.

But the third bucket are these. Religious exemptions. Now, what has happened is some courts, district courts, and even appellate court have given stays in the course of the proceeding of these religious exemption cases, because either there was no religious exempt or mostly because there was no religious exemption or accommodation, but most of those stays have been vacant.

So you've had that New York, you had that in Indiana. So, and that has to do with whether the constitution requires a religious exemption under, I guess it would be the free exercise clause. So that's the third

Tim Kowal: bucket. Yeah, I wondered a few. I know we're going a little bit long already, but I am a little bit confused about that argument on the religious exemption.

I wondered if it, I had heard about with other vaccines, there, there were claims of religious exemptions because they there's a religious objection to abortion abortion. And some of, some of these vaccines may contain strands, you know, from aborted fetal cell lines. And so that was the basis of the objection.

Is, is that the basis of the objection to the, to the COVID vaccines in the, in the religious exemption argument? Or is it something different?

Rick Jaffe: No, I, I think you're right. I think it's, it offends their religious beliefs because the vaccines were developed with the use of a boarded fetal tissues. And that's against the religion.

It's not against, it's not against the. Traditional religion as, as determined by the powers that be in the religion. There's no religion other than Christian science. I think that, that, you know, wouldn't allow it. I mean, all the major religions have coming out in favor of the vaccines. So, you know, so I, I think the interesting legal question is the courts have three years ago, couple of years, 2019, the New York courts upheld the removal of the religious exemption to vaccines on constitutional grounds.

There's no constitutional right or religious exemption. Connecticut did that recently. There's no constitutional right to a personal belief exemption. So this is in my view, this is a murky area because historically the general concept of a religious exemption, many states. But when they remove it, they're allowed to remove it because there's no state or federal constitutional protection here.

I guess the argument is, well, it's specific because we're against the practice. You know, some people would argue that it's completely pretextual because these people also don't have objections to using other drugs that ha that were, that were used fetal stem cells and they didn't even look to see. So, you know, so this is an issue that has not been litigated at trial yet.

Right? All we have is a bunch of declarations about people professing their religious beliefs. I had a case where the guy, you know, wanted me to go to, you know, some hearing. Yeah. You know, for his religious beliefs is what are your religious beliefs, you know? And, and, you know, the problem is. It's sorta hard to pin down.

I mean, it's easy to state, but you know, we all know what religious people are, you know, and these, and, and these people that profess these religious beliefs, it is claimed or indistinguishable from other people. Now, maybe there's some arms, right? Maybe there's some fundamental Christian or Christian science is I get Christian science.

They don't believe in medical intervention. So this is an issue which has not been tested through cross examination, that hearings, because everything is just this initial procedural through motions for preliminary injunctions and appeals. So they take the, they take the record as it is. And that's why I think that's why a couple of the Supreme court justice Kavanaugh and call me barracks.

You know, when they rejected the taking these cases up, the religious cases up says, look, we need a better. Yeah. You know, and that's, that's, that's a legitimate thing we need to record and have this tested and we can't just decide these cases on, on declarations.

Tim Kowal: So, and thus far their decisions have been not no, but just not yet.

Is that

Rick Jaffe: right? Well, this is, uh, this is an appellate issue for you. I mean, the so-called shadow docket. You could probably lecture on that. So, you know, look, the shadow docket, I think the Supremes are starting to think is, is just being abused and, you know, and, but look what they did look, what they looked at, what they did on the issue of restrictions in churches.

You know, the first south Pentecostal case, you know, when five to four in favor of holding the regulation of church gatherings to 25%. Okay, which was different than hardware stores, you know, on the obvious reason you go to a hardware store for 10 minutes and you go to church for an hour and a half, you know what I mean?

So that was upheld by five, four Ginsburg died, you know, and then all of a sudden it was five, four, the other way, with this opinion, by my courses, you know, there's no way that there's no planet can kind of hardware store be open and a church closed or church can be limited. I mean, which is a, you know, it's understandable, but it's a mechanical, you know, argument.

I mean, it's, there's no rationale behind it. I mean, I, I, you know, if you liked that decision, you liked that thing, but it's not based on medical science. So, but that it's it's politics. So, so if you look at that, that was the first shadow docket case. And then the Cuomo case came down, you know, on the same thing.

So what happened is. All you appellate lawyers, you know, re read those two decisions and said, man, we can get to the Supreme, you know, right quick. And we're going to do the same thing. So what happened is every single one of these cases, religious exemption case, they cited Cuomo. They cited the second south Pentecostal case and they say, look, it's our religious beliefs.

So that's really what happened. And you know, I wrote a post about this assists guys. It's not going to fly. It's not the same thing. You know, I'm leaving used, had an opinion in, in Houston where he said, look, we're not gonna, we're not, you know, we're not gonna make law based on the vaccine preferences. And that's what we, and, you know, I've appeared.

So that's that, so that's how this, all this litigation started on the shadow doc. Okay. Yeah,

Tim Kowal: no, that's interesting that point about, you know, comparing churches and hardware stores. I mean, it's important too, to not be ideological about these things. Of course, religion is protected in our constitution and in our traditions and everything, but, you know, it's important to, to kind of look behind the curtain and, and, you know, not everything is a black and white issue.

You know, I would think that, you know, going back to Jacobson, you know, that was based on a smallpox outbreak and smallpox is a particularly severe disease and maybe not all diseases are quite as severe as that. And so maybe that rule it, even if it is to be upheld, it is not be a one size fits all rule.

Maybe, maybe different diseases call for different measures. And maybe, maybe when we get down to something like an Omicron variant, maybe that falls a little short. Um, but the standard, the same, the same kind of measures that we would justify in a smallpox outbreak, but those are the kinds of thinking and consideration.

I think that needs to go into it, not a black and white type of thinking, but gradations

Rick Jaffe: and therein lies the other problems, because that was a perfect segue to the other big issue who decides right. Who decides whether on the Cron coronavirus is severe enough to impose that, right. Who decides, and I, and for better and worse, depending on which side of a field you're in, that's the job of public health.

The authorities, public health authorities and backed by medical science. So which leads to the problem is what happens when you have the public officials, the great Tony Fowchee, you know, and all of his minions, they say what they're going to say about public health. And they say, we have to do this. We have to do it.

Then, you know, it doesn't matter that there's only 0.5% of people died. It's 800,000 people who decides, right. And what you have on the other side of that. And I know this because I actually filed the first case against mandates. Recently it was on the flu mandate, you know, during the COVID vaccine. But before there was a vaccine, I sued the UC for there, for the flu mandate.

And the justification was that. Well, you know, we got to keep the hospital beds for the COVID patients. And that seemed ridiculous to me, that's a collateral purpose and it was wrong. And I got five experts from around the world who, who, who, who analyzed all the data. And I had one UC professor, two UC professors, and put these five expert reports.

There was a brilliant job if I do say so myself, and it was very compelling. At least if you were against vaccines and the, you say came back with 10 experts, all of whom work, essentially infectious disease experts. We had none because of the infectious disease mafia. We went before the Oakland judge, you know, and here's what he guy told me.

Just to give you a sense of this says, you know, they were steps. I got to tell you something. I wouldn't feel comfortable going to the movies now with people that were not vaccinated. Okay. So w w so guess what, I th I lost it. I lost, I didn't get the preliminary injunction. They also said, you know, it's like Andy vaccinated, people, unvaccinated people are like drunk drivers who might, who want to draw it.

They might want to drive, but they're dangerous. That's what the judge told me. And it shows you their, their mindset. And ultimately, you know, the problem in these cases are the, is that the infectious disease mafia that's hooked into all the vaccines and the pharma, and most of the public health officials, whether you, whether they're right or wrong, have a position that, that COVID is dangerous.

It kills a lot of people, which apparent which it does. Right. And we need these restrictions. And so how does a judge decide that the institutionalist are wrong and we're going to go with instinct. The opinions of physicians who are extremely well credentialed, but none of them are infectious disease doctors because they all stick together.

So. Practical from the trenches point of view, this is the problem with all these cases that try to take on, on these public health issues. You know, it's the institutional versus non, and you're asking a judge to say, oh, we're going to disregard what the institutional Sage and who wants that responsibility that could result in the death of hundreds of thousands.

That's what these cases face from a practical litigation.

Tim Kowal: Well, and then also take it back to the standard of care issue that we talked about, the standard of care, who is deciding what is the standard of care when it comes to the vaccination policy? To what extent is that standard of care informed by public health officials who are concerned with large demographics rather than individual patients.

And that gets back to that tension between public health and our health and private medicine. Do we have a standard of care for private medicine that is driven by. Public health officials.

Rick Jaffe: Well, they, they, they, I can give you the answer to that. They can play the issue. They talk about the boat. They always use the conjunctive.

It's dangerous to the patient for not being vaccinated and to the public at large, because you're increasing the risk of infection for most of this diseases, which don't even exist in this country or are not fatal. So that is the answer. The conjunctive th th the use of a conjunction melding the two

Tim Kowal: together.

Interesting. Well I've monopolize all the time. And before we tax our listeners patients, Jeff, you had a question about some of the injunctions coming out of some of these cases and their effects. You want to put that.

Jeff Lewis: Well, yeah, sure. Look, I follow the headlines. I haven't read much of the cases. It seems like every week there's a nationwide injunction sought to block the vaccine mandates and then there's a court saying, Nope, it's just going to apply to this circuit or that circuit.

What is the current status of junctions against these vaccine mandates. And, and is it nationwide or is it limited to certain geographic regions or is that too hard? A question to ask?

Rick Jaffe: Well, okay. Let me tell you what I know. All right. On the issue of OSHA, this circuit, enjoined, it, those cases were consolidated to the sixth circuit.

The sixth circuit vacated the injunction, so it's effect, but the Biden administration has put off the January 4th deadline to February to see whether the Supreme court is going to wait. All right. That much. I know the San Diego case in falling into school district, the,

Tim Kowal: and in that case that the San Diego superior court, that's the one you're talking about.

Right. It just, it just enjoined the school districts mandate for, I think the K through 12 children on the basis of preemption grounds that if the state wants to mandate it, that's the state's business, but school districts cannot enter that field without the explicit consent of the legislature.

Rick Jaffe: Oh, really?

Day or two. Yeah.

Tim Kowal: I think that, that was just yesterday

Rick Jaffe: that I wasn't aware of a December 20th. Right, right. That I haven't followed him doing something else. The last I had heard. So preemption grounds. Well, that's an argument that's been made that basically because of mandatory, mandatory injunction is under the health and safety.

Uh, a mandate would have to be by the legislature as an amendment to the health and safety code. Right. And school districts don't have the right. What court did that, do you call

Tim Kowal: it court? No, that was just, that was a San Diego superior court.

Rick Jaffe: I don't think that's gonna, that's not gonna hold. I don't think, I don't think that's right.

I think it, I find it hard to believe it because there's litigation on the other side, that one of the arguments against the federal mandates is that it ought to be state or local specific to deal with the individual conditions of an area. So I'll go see what the appellate court does. I mean, I, and, and I think, yeah, well I'll after I've read the opinion, but I find it hard to believe that the school district cannot impose.

Health requirements. I'm somewhat familiar with these score school board rules and public health rules. And typically there's a great deal of power given to, well, maybe not school boards, but, but local public health officials. But anyway, so that would be a good thing. The answer is if the law isn't in effect, that would be a good thing in terms of, I, you know, these decisions, excuse me, are coming so fast and furious.

You have decisions all around the country, limiting their scope to different circuits, right? So there's no comprehensive. Decision on any of these things. I happen to think that that's going to be a pretty good reason why the Supreme is, are going to have to take this up. It's just, it's just too chaotic.

There's too much litigation. And there's too much contrary contradictory litigation. This is the perfect time. Even on the shadow docket with everything, they've got to come out and set some standards and some of these critical issues. And I hope they do soon because there's nothing worse than the chaos that has resulted from that because literally people are waiting whether they're going to quit, whether they're going to continue, you have a lot of people that don't, aren't going to take the vaccine and you know, they're struggling what to do.

And so I'm hopeful that the Springs will come in and give some clarity of the situation. Let me ask you this brick. I, you know, I'm not as skeptical as Tim, when it comes to vaccine backstop, boosted, my family's backs to boosted. And to be honest, I didn't really question it, but let me ask you this. What is the one thing that members of the public or people like me, who aren't super focused on this kind of vaccine litigation?

What is the one thing you would love to share with people like me that might surprise them or that they don't already know about the vaccine litigation? The COVID the vaccine litigation? Ah, I don't know. I think that's a tough one. I mean, I think there's been a lot of discussion about it and I think there's a lot of misinformation.

I, you know, I do this litigation that I do, but I make my own personal opinion. The decisions aren't vaccinated, boosted such a decision with the Johnson and Johnson. I think.

You know, what strikes me in general is something that I didn't know, it's not directly related to COVID is that most of the families that I dealt with who did not want to get their children vaccinated and got exemptions, most of them are, or at least a big chunk of them or pro-vaccine until they had a kid with a horrible vaccine reaction, which turned them into very skeptical.

So I find that the most interesting and troubling aspect, I mean, I talked to intelligent people, lawyers, and they were pro back. They never, they were just like you, they never thought about it. Ma I have a relative, right. I have a relative. Who's just a normal. You know, literally younger than me and athlete and they, because of COVID they got the flu shot and sure enough, if the guy didn't get Gillian bear syndrome, that guy was, he was in bulldogs.

The guy's like 62 years old, he would say competitive tennis player, no problems. The guy was struck down. He was in a hospital for a month. He's it's he was, it was like lightning out of the blue. Now did I think he still got the COVID vaccine, but he is now a lot more wary about it. So I think people underestimate, you know, the fact that many people have had and, you know, and, and by the way, Billy embarrassed is a known risk for the flu.

So you can say, well, it was just coincidentally. So many, many people that are against the vaccines are so because of personal experience and were formally pro-vaccine. So I would say that's one of the, that's one of the big pictures I don't, I, my view is I think probably COVID vaccines should be a matter of personal choice because I don't think these things were approved on the basis of preventing transmission.

Right. They were approved on the basis of preventing hospitalizations and deaths. And I think that ought to be a personal decision. I don't, to me, the evidence is pretty strong that it's working. So, and especially if you're older. So to me, it's about, you know, people might have the right to make the w w we allow people to make horrendous mistakes.

I mean, we'll help people to smoke. We send people off to war. We allow people, I mean, I stop against unprotected sex. We allow people to get certain rights. So in general, I'm in favor of allowing people what they want to do. If the vaccine were proven to stop transmission. And maybe it has, maybe they're saying it has, as opposed to just assume, then you could argue that you're you, you can mandate vaccines to prevent, you know, nobody has the right to be typhoid Mary and the constitution is not a suicide pact.

Right? So at some point let's put it, let me answer your question. If, if some new variant kills 50% of people, it's like, there are no atheists in the foxhole, you know, at the point that, that, that, that reasonable. There are no reasonable person, but think that the risk benefit is, is different. That's one thing.

So, you know, it's hard to say, but, but I think the biggest problem is that the public is not convinced that it stops transmission. And if it doesn't stop transmission, why the mandate? And like I say, they're, they're canceling events, new year's Eve events, even for vaccinated per. Right. So I think the problem is that the whole people that we think about the purpose of vaccination doesn't seem to hold water in this case, in terms of preventing the ill, the, the, the disease or the infection, and that's causing a lot of the public.

And I'll try to,

Tim Kowal: I'll try to answer Jeff's question. I have one just to bring back to a legal anecdote. I remember years ago, and I was, I was researching this prop 65 issue, and I just stumbled across this case that involved someone was, was arguing that vaccines should be labeled with the prop 65 warning because it contains some ingredients that, you know, allegedly are Christ-centered.

I mean, there's the prop 65 warning, obviously he's a little bit overinflated, but the, the, the holding of this case was something to the effect of, well, yes, even if it arguably contains these carcinogens. Ingredients, it doesn't need a prop 65 warning because the law will presume that the nurse or doctor is reading off all of the lists of, of adverse events.

Every time they administer one of these vaccines. And I remember thinking, you know, yeah, that's, that's not my experience. That's not the experience of anyone I know whose children have gone in for vaccinations. And I thought the line from all of her twists, you know, the worst, I would wish of the laws that it's, I would be opened by experience because that is, that is one of those presents or legal presumptions that just does not match with.

Rick Jaffe: Well, yeah, don't misunderstand me. Although, you know, I don't think we'll ever see eye to eye on vaccines. You know, there's been times in our country, you know, after nine 11 or in terms of terrorism or the stakes are big, or when there's a mountain of evidence against a criminal defendant where people criticize lawyers for poking at the government for questioning can the government do what the government's trying to do here.

And it's super important. We have lawyers like Rick, who question the government and say, Hey, the stakes are big. Let's take a minute and pause and ask, can the government do what it's proposing to do? So I appreciate all the work you do. Well, thank you. All right,

Tim Kowal: Rick, I want to thank you for joining us today.

We ran a little bit long, so we're going to, I think, I think Jeff we'll, we'll skip the Roundup of cases and save it for the next episode, but I did still have a lot of questions left for Rick and maybe, maybe you'll agree to join us again in the future. And we can do, if we can do an update for our audience, aware of where the, where the cases have taken us, you know, in a, in a few months time.

Sure. Alright. Well, I guess that,

Jeff Lewis: uh, that wraps up this.

Tim Kowal: Yeah. So if you have anyone in RNA audience suggestions for future episodes, please email us at cal podcast@gmail.com in our upcoming episodes. Look for tips on how to lay the groundwork for an appeal preparing for trial. The next time you have just

Anouncer: 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 podcast.com that's C a L podcast.com. Thanks to Jonathan Khara for our intro music. Thank you for listening and please join us again.

Resources mentioned in this episode:

Destiny of the Republic, by Candice Millard (2012).
Jacobson v. Massachusetts, 197 U.S. 11 (1905)
Let Them Choose v. San Diego Unified School District. https://www.icandecide.org/ican_press/more-details-about-the-san-diego-strike-down.

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Trial counsel had some explaining to do at a trial court hearing. The failure to provide a reporter's transcript of that hearing was fatal to the appeal of the resulting order.

In Lemus v. Abdeljawad (D4d2 Sep. 8, 2021) 2021 WL 4075181 (E075789) (nonpub. opn.), the plaintiff obtained a default judgment against the defendant. But the plaintiff got the default judgment under suspicious circumstances. The defendant never received the summons or complaint. When the defendant learned of the default, counsel sent emails to the plaintiff’s counsel asking for the complaint. Counsel left voicemails for plaintiff’s counsel. But plaintiff never responded, and instead pushed ahead to get a default judgment.

In opposing the defendant’s motion to set aside the default judgment, the plaintiff’s attorney even admitted having received the emails and voicemails from the defendant’s attorney, but never explained why he never responded. After a hearing, the trial court set aside the default judgment.

The plaintiff appealed, but did not provide a reporter's transcript of the hearing. The Fourth District Court of Appeal held this failure forfeited the plaintiff’s appeal. “Given the fact that the applicable standard of review is abuse of discretion, the absence of a record of oral proceedings is fatal to plaintiff's claim of error.”

Because of the principle that judgments are presumed to be correct, “lack of a verbatim record of... proceedings will frequently be fatal to a litigant's ability to have his or her claims of trial court error resolved on the merits by an appellate court....‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].' ” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)

“Although in certain instances a reporter's transcript may not be necessary, including if an appeal involves a legal issue requiring de novo review [citation], on issues... involving the abuse of discretion standard of review, a reporter's transcript or an agreed or settled statement of the proceedings is indispensable.” (Hood v. Gonzales (2019) 43 Cal.App.5th 57, 79-80.)

Why should a reporter's transcript be necessary when no oral testimony was involved? The court explained: “A record of oral proceedings would appear particularly relevant in this case because defendant's motion was supported primarily by his own declaration; plaintiff's opposition was supported primarily by the declaration of plaintiff's counsel; and both defendant [in pro per] and plaintiff's counsel participated in the hearing on the motion. Thus, the oral proceedings presumably provided the trial court with an opportunity to inquire directly of each declarant in order to clarify any ambiguous, inadequate, or inconsistent statements made in their declarations and to assess each declarant's credibility. Absent a reporter's transcript, this court is unable to determine what transpired and cannot conclude that the trial court abused its discretion when it ultimately decided to vacate the default judgment. Since plaintiff, as the appellant, bears the burden to establish error on appeal, the absence of an adequate record compels the appeal to be resolved against him.”

So even though it does not appear anyone was sworn in, the two declarants of the declarations on which the court’s ruling was based participated at oral argument. The Court of Appeal suggests here (though without citing any authority) that statements made during oral argument may be used to determine the credibility of written declarations.

The Court of Appeal went on to hold that the record, such as it is, did not establish an abuse of discretion.

Comment: I am grateful the court chose not to publish this opinion. For the reasons I explained in another recent case – a much closer call – I think it is improvident to hold a bright-line rule that the lack of a reporter's transcript results in an automatic forfeiture.

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Hiring a court reporter is expensive. Do you really need a court reporter for every occasion, such as a hearing where no testimony will be offered?

Before you answer, consider the perspectives of the appellate justices who disagreed sharply on the question in Weischadle v. Vo (D2d1 Jul. 2, 2021) 2021 WL 2766771 (no. B304845) (nonpub. opn.). The majority held the lack of a reporter's transcript at a hearing on a motion to compel arbitration was not fatal. But Justice Chaney penned a forceful dissent. The majority opinion is logical and seems to reach the right result. But Justice Chaney raises important questions whether the majority evaded important procedural safeguards to reach its result.

Given the outcome was a close call, as a practical matter it would be wise to assume a reporter's transcript is necessary for any important law-and-motion hearing, even if testimony will not be offered.

Here is what happened in Weischadle.

The plaintiff was a former personal injury client of the defendant law firm. The defendant law firm had withdrawn before the trial, leaving the plaintiff in pro per at trial, where she got nonsuited. The plaintiff sued the defendant law firm for legal malpractice. The law firm moved to compel arbitration based on the arbitration clause in the retainer agreement.

The court heard the motion at a January 2020 hearing – which was not reported. Although the plaintiff’s opposition to the motion to compel arbitration did not raise the issue of unconscionability, the trial court requested supplemental briefing on that issue, noting the retainer called for “commercial” arbitration as opposed to “consumer.” Importantly, the court ordered that no declarations or exhibits were to be included with the supplemental briefing.

Following a continued hearing in February (which was reported), the trial court ruled the arbitration agreement was procedurally and substantively unconscionable because of the “commercial” arbitration provision. The court reasoned that this would impose unreasonable costs on the plaintiff, and that it was not disclosed to the plaintiff, who was in an inferior bargaining position. (Notably, none of these findings was supported by the evidence submitted in connection with the motion or opposition.)

The trial court also found the defendant law firm had waived arbitration by seeking an extension under Code of Civil Procedure section 430.41 to file a demurrer. (But this part of the ruling was clearly incorrect, as the Court of Appeal would hold: filing a demurrer itself does not waive arbitration (Khalatian v. Prime Time Shuttle, Inc. (2015) 237 Cal.App.4th 651, 662), so obviously the preliminary step of obtaining an extension to file a demurrer cannot constitute waiver, either.)

So just to keep score, by this point in the opinion – even before getting to the analysis – there already are several reasons to be suspicious of the trial court’s ruling here. First, the trial court raised an issue, unconscionability, that the plaintiff had not raised (and thus arguably had waived). Second, the unconscionability issue is a fact-driven issue, yet the trial court provided no opportunity to either party to adduce evidence on it. Third, the trial court went ahead and made those fact findings in the absence of evidence. And fourth, the trial court also ruled on a separate ground that was clearly incorrect. This reader was left with the distinct impression that, so long as this judge had anything to do with it, this case simply was not going to be arbitrated.

So the fact that the Court of Appeal reversed was not surprising, even though the order denying arbitration was reviewed under the deferential substantial-evidence standard. Writing the majority opinion, Justice Helen Bendix noted “there was virtually no evidence to support” the trial court’s findings, because the plaintiff – whose burden it was to prove unconscionability – “submitted no evidence regarding the circumstances in which she entered into the retainer agreement.” Certainly there was no evidence in the papers submitted to the trial court. And there was no indication any evidence was offered at the two hearings. Instead, all of the findings about the circumstances under which the plaintiff signed the retainer were based solely on the retainer itself. That was not substantial evidence, the majority held.

The Lack of the Reporter's Transcript Was Not Fatal to Appellant’s Case:

But what about the missing reporter's transcript from the first hearing in January? The trial court raised the unconscionability issue at that hearing, so surely that must have been an important hearing. Justice Bendix did acknowledge the lack of a transcript for that hearing. But the missing reporter's transcript was not fatal to the law firm-appellant’s case, because the minute order relating to that hearing "did not refer to any testimony or submission of evidence,” so “[w]e may infer from the minute order that no such testimony or evidence was received.” (See Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 113 [official court minutes “accurately and officially reflect the work of the court”].) Moreover, in the reporter's transcript from the second hearing at which the court made its ruling, and in the five-page ruling itself, the trial court “never referred to any evidence other than the retainer agreement itself,” and the declaration the law firm submitted before the unconscionability issue ever arose.

The majority concluded: “In short, every indication in the record is that nothing occurred at the January 14 hearing to support the trial court's ruling. The record therefore is not “ ‘ “ ‘silent' ”' ” as to what transpired at the hearing, even in the absence of a transcript, and we need not make “ ‘ “ ‘[a]ll intendments and presumptions' ”' ” in favor of the trial court's ruling.” (Quoting People v. Torres (2020) 47 Cal.App.5th 984, 989.)

(You may be interested to know that Justice Bendix’s majority opinion was joined by a trial court judge sitting by assignment.)

Again, this struck me as the right result. But now consider what Justice Chaney said in dissent.

The Lack of the Reporter's Transcript Should Be Fatal, Says Justice Chaney in Dissent:

Justice Chaney makes a strong case why a reporter's transcript is necessary in most appeals.

First, the California Rules of Court require a record of oral proceedings where an appeal involves a review of those proceedings. (Cal. Rules of Ct., rule 8.120(b).) True, a reporter's transcript “may not be necessary if the appeal involves legal issues requiring de novo review.” (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483.) But: “In many cases involving the substantial evidence or abuse of discretion standard of review, however, a reporter's transcript or an agreed or settled statement of the proceedings will be indispens[a]ble.” (Id.) (But note the term “many cases” – not “all.”)

Why is a record so important? That gets to Justice Chaney’s second point: “The necessity for a record of oral proceedings rests on the bedrock principle that the trial court's orders are presumed to be correct – the “Presumption of Correctness.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 8:17.) .... This includes the presumption ‘that the record contains evidence to support every finding of fact.' [¶] Appellate courts never speculate that trial court error occurred. Any ambiguity in the record is resolved in favor of the appealed judgment or order.” (Id. at ¶¶ 8:15, 8:16, original italics.)”

“ ‘A necessary corollary to this rule [is] that a record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed.' ” (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435, italics added.)

Justice Chaney is on to something here. Simply put, appellate courts always assume the record supports the judgment, so the appellant must prove otherwise. And ordinarily, that starts with offering the appellate court the entire record. If the appellant omits portions of the record, the court may presume those omitted portions support the judgment, and will affirm.

That is exactly what Justice Chaney says ought to have happened here: “We cannot know what happened at the hearing on January 14, 2020. Consequently, we must presume that something happened that would justify the trial court's denial of the motion to compel arbitration.”

Justice Chaney’s italics here now prompt the reader to ask: ok, what sort of “something” might one reasonably presume to have happened to support the otherwise unsupportable findings. Because surely this can be taken to extremes. One does not presume Justice Chaney means that we should presume that “something happens” at any given unreported case management conference, for instance, that may be said to support the eventual judgment. And no one contends here that anyone was sworn in to testify at the unreported January hearing. So why does Justice Chaney presume “something happened” that would fill the evidentiary holes in the trial court’s factual findings?

Here is Justice Chaney’s answer: “Litigants frequently concede points in response to bench officers' questions or make representations or assertions of fact upon which trial courts must be allowed to rely.”

That is all. Justice Chaney does not presume there was an impromptu swearing in of witnesses, or surprise evidence offered to the court. No, Justice Chaney is only talking about oral advocacy about “representations or assertions of fact” in the case. It is worth pausing a moment to ask ourselves how far Justice Chaney’s point goes. On the one hand, attorneys are aware that "It is axiomatic that the unsworn statements of counsel are not evidence. [Citations.]" (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11.) So Justice Chaney must not be suggesting that statements made during oral argument may be relied upon as ordinary evidence. But on the other hand, advocates may make judicial admissions during oral argument. For example, during closing arguments in a trial over a contractor dispute in Fassberg Const. Co. v. Housing Auth. of City of Los Angeles (2007) 151 Cal.App.4th 267, the defense counsel unambiguously and deliberately conceded one of the issues raised at trial concerning a $402,000 credit on a change order. That was treated as a judicial admission.

But judicial admissions are special creatures. (Tim Kowal, A Defense Lawyer’s Complaint: Some Judges Don’t Get It About Judicial Admissions, Verdict, 2018 vol. 2.) Judicial admissions are not evidence. A judicial admission is “a conclusive concession of the truth of a matter which has the effect of removing it from the issues …. " (Troche v. Daley (1990) 217 Cal.App.3d 403, 409, quoting Walker v. Dorn (1966) 240 Cal.App.2d 118, 120.) A trial court "may not ignore a judicial admission in a pleading, but must conclusively deem it true as against the pleader." (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 187 (citing Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1155).)

So if Justice Chaney is talking about judicial admissions made by counsel during the hearing, and if judicial admissions “remov[e the matter] from the issues,” then it seems reasonable to ask: wouldn’t the trial court have reflected such an important occasion in the minutes? As Justice Bendix noted in the majority opinion, the official court minutes “accurately and officially reflect the work of the court." (Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 113.) If the trial court accepts a judicial admission from a litigant, it seems fair to presume the trial court would reflect such a significant event in the minutes. And contrariwise, if the minutes do not reflect that significant event, it seems fair to conclude that it did not happen.

But Justice Chaney has a parting shot that may be her most persuasive: “Finally, procedural rules applied consistently are part of the foundation of due process. The rules that govern our review – like other rules of procedure, standards of review, and presumptions parties are entitled to – are intended in part to give litigants equal access to the judicial process. Courts tip the scales when they decline to consistently apply those procedural prescriptions.” This is an important point. Subtlety is an tax levied on the legitimacy of the judiciary. The rule of law requires that like things be treated alike. But experience may counsel that, in fact, the world is infinitely subtle, and no two things are truly alike. But that empirical reality is not one in which the judiciary may indulge. Our rules are no longer fixed and intelligible we oblige them each to permit of a thousand exceptions.

So Justice Chaney would leave well enough alone: the rules of appellate procedure demand that appellants to provide a record of the key hearings, the appellant failed to do that here, so the appellant must lose.

Comment: I am torn between Justice Bendix’s opinion, which seems clearly the right result for this case, and Justice Chaney’s dissent, which would prevent standard appellate procedure from starting down the road to becoming a dog’s breakfast of exceptions. But if forced to choose. I would join Justice Bendix’s opinion, while offering a concurrence along these lines:

“While it is important that litigants provide a complete record on appeal, the legislature and the judiciary have been too cavalier about how difficult we make this for litigants. Unlike federal courts where the record is deemed to include the entire trial court file, in appeals in our state the record is limited to what the appellant provides to the reviewing court. Also unlike federal courts, many California courts no longer provide court reporters, so in addition to the expense, litigants must directly arrange for the preparation of a record. And our rules offer appellants no real alternative. True, we often note that, in the alternative to a reporter’s transcript, litigants may opt for an agreed statement or a settled statement. But let’s not be glib. A litigant does not have a right to an agreed statement, because opposing counsel may simply decline to agree. Nor does a litigant have a right to a settled statement, because the trial court, also, may simply decline to settle one. (I am aware of no reviewing court to hold a trial court abused its discretion in failing to settle a statement; and I am aware of one reviewing court to summarily deny a writ petition raising the issue.) The legislature previously allowed courts to record proceedings that could later be made into transcripts. In short, there are measures available to make record preparation less cumbersome and less expensive to litigants. For whatever reason, our state has chosen not to adopt those measures. Given we have already rather stacked the deck against appellants in terms of the appellate record, I would not heap further hardship upon the appellant in this case by presuming things happened at an unreported hearing that no one actually suggests happened anyway.”

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To appeal a judgment after a bench trial, you have to follow a complicated procedure to prepare a statement of decision. And even if you do it all correctly, it can still backfire. Appellate attorneys Frances Campbell, Jeff Lewis, and Tim Kowal discuss.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 18, available here.

One of California’s foremost appellate experts, Myron Moskovitz, talks with Tim Kowal and Jeff Lewis about the personality type of the appellate attorney as part scholar, but with some fight left. Many judges tend toward the scholastic, Myron says, but some still enjoy the electricity of litigation.

Watch the clip here.

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

When the appellate court agrees the statement of decision is defective, what happens? Appellate attorneys Jeff Lewis, Anne Grignon, and I discuss a recent case (covered here) that simply gave the trial court another chance to fix the defective statement of decision. I complain this makes waste of the entire appeal and will force a second appeal just to get to the merits. Jeff thinks this result is an outlier. But I have seen it happen before.

One case to consider if you are in this situation is Calloway v. Downie (1961) 195 Cal.App.2d 348, 351-53. There, a husband claimed an agreement to give him certain community property. But in three rounds of requests, his wife, who did not bear the burden of proof, sought findings of a transmutation agreement that would support the husband’s judgment. But the trial court never made the finding. (Id. at pp. 351–52.) Reversing, the court held that “[t]he repeated objections from appellants show that the transformations in the findings indicate a determination by the trial judge that there was in fact no agreement, express or implied.” (Id. at p. 353.)

Thus, Calloway may support an argument that the failure to make a finding should be deemed a finding that the record does not support it.

Watch the clip here.

This is a clip from episode 19 of the California Appellate Law Podcast, available here.