Enforcing a judgment is hard enough before appeals and appeal bonds enter the picture. Unfortunately, the published opinion in Wertheim, LLC v. Currency Corp. (D2d1 Oct. 14, 2021) 2021 WL 4785575 (nos. B304655, B310650) now takes that picture even further out of focus. The upshot is that the defendant fully satisfied a judgment, but that was not enough: the plaintiff intended to seek more costs, and the defendant did not "condition" its payment on its constituting full satisfaction of the judgment.

Held: contrary tot Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 891, the plaintiff could continue filing motions for more enforcement costs even after the defendant had paid the entire amount of the judgment, interest, and costs then due.

The mountain of difficultes in Wertheim began with a molehill of a verdict, just $38,000, along with an award of attorney fees. That was 2009. The defendant appealed, and posted an appeal bond to stay judgment enforcement. But the defendant lost its appeal.

Fast-forward to 2016. For some reason, the successful plaintiff did not timely enforce the judgment from the appeal bond. Instead, the plaintiff had resumed other judgment-enforcement efforts, and now wanted to recover the attorney fees it had incurred in that mission. But the trial court denied the plaintiff's motion for judgment-enforcement fees as untimely, on the grounds that the appeal bond (though still unpaid) satisfied the judgment.

That ruling was wrong. True, the right to move for judgment-enforcement fees is cut off at the moment the judgment is fully satisfied. (Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 891 (Gray1).) (More on Gray1 later.) But posting an appeal bond does not satisfy a judgment. (Wertheim LLC v. Currency Corp. (2019) 35 Cal.App.5th 1124 (Wertheim IV).)

So back in the trial court, the plaintiff did two things: (1) the plaintiff filed a motion for attorney fees for its recent successful appeal in Wertheim IV; and (2) the plaintiff filed a separate action to enforce the judgment against the appeal bond.

A Motion for Judgment-Enforcement Fees Carries a "Necessarily Incurred" Requirement (CCP § 685.040):

The trial court granted the plaintiff's motion for judgment-enforcement fees, awarding the plaintiff over $240,000. But the trial court awarded the fees under Civil Code section 1717. But that was the wrong statute here. Fees that are incurred to enforce a judgment are governed by Code of Civil Procedure section 685.040. Section 685.040 has a requirement which Civil Code section 1717 does not: only fees that were necessarily incurred are recoverable.

So did the plaintiff "necessarily incur" fees by successfully appealing the order denying its prior motion for enforcement fees? No, concluded the Court of Appeal. The motion for fees was unnecessary, and the appeal on the order denying that motion was unnecessary. Why? The plaintiff's enforcement efforts were unnecessary when there was an appeal bond securing the judgment the whole time. Wertheim could have avoided a new lawsuit entirely by filing a timely motion to collect on the appeal bond pursuant to Code of Civil Procedure section 996.440.

Collection on an Appeal Bond by Motion Must Occur Within One Year After the Appeal (CCP § 996.440):

Liability on a bond may be enforced expeditiously on noticed motion filed within a year after any appeal is finally determined, or more laboriously by a separate lawsuit. (Code Civ. Proc., § 996.440.)

Here, the plaintiff waited longer than a year, and so a motion was untimely. Instead, the plaintiff had to file a separate lawsuit to collect on the bond. The plaintiff succeeded, but the bond company had to incur fees in the lawsuit. The court ordered that the bond company may recover its fees out of the bond proceeds (which had been interpleaded with the court). The court also ordered that the bond company's fees should be allocated against the plaintiff, since it was the plaintiff's delay that made this whole separate lawsuit necessary.

When Is a Judgment Fully Satisfied?

One more issue from Wertheim is worth noting. So at long last, the bond funds were released to the plaintiff. The parties agreed the bond funds were "in satisfaction of" the underlying judgment. The defendant made a separate payment to cover interest incurred as of a March 11, 2016 order. This happened in March 2019. So the underlying judgment appears to have been fully satisfied as of this time, according to the defendant.

But then here came the plaintiff six months later with another motion for judgment-enforcement fees of almost $390,000.

To this, the defendant raised Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 891, which stands for the sensible proposition that, at some point in judgment-enforcement, all good things must come to an end: once the amount of the judgment has been paid, together with accrued legal interest and any costs that have already been awarded, the judgment is fully satisfied, and no further costs may be claimed.

But the Wertheim court disagreed. "Additional fees were potentially awardable pursuant to Wertheim's March 10, 2016 motion for them, which was revived by Wertheim IV, as well as any motion it might bring for fees incurred after that date." But the "revived" motion appears not to have been granted. And besides, Gray1 is quite clear on this subject:

"When the Enforcement of Judgments Law refers to a judgment having been fully satisfied, it means an outstanding judgment, not what the judgment would be if postjudgment costs were to be added thereto. No other interpretation is possible. If a judgment were not fully satisfied because of the existence of as yet unawarded attorney fees, the phrase before the judgment is fully satisfied would serve no purpose." (Gray1, supra, 233 Cal.App.4th at p. 892.)

And further: "That is a distinction with a difference, for a judgment is satisfied when the total amount of the judgment plus accrued interest has been paid. (§ 695.210; see § 685.090, subd. (a) [costs (including postjudgment attorney fees) do not become part of the judgment until such time as the court files an order allowing the costs].)" (Id. at p. 893.)

Wertheim says it does "not disagree" with Gray1, but its conclusion is difficult to square with Gray1. Wertheim concludes the defendant did not fully satisfy the underlying judgment because the defendant "adduces no evidence suggesting that any tender it made was conditioned on its being considered as full satisfaction of 2009 judgment." But that is not the standard under the Enforcement of Judgments Law or Gray1: "a judgment debtor who pays the judgment creditor in an amount that includes the full measure of the judgment plus accrued interest, has fully satisfied the judgment. (§ 695.210.)" (Gray1, supra, at p. 893.) There is no requirement that the defendant "condition" its payment on the plaintiff's agreement that it fully satisfy the judgment.

Comment: Unfortunately, the published opinion in Wertheim throws the application of Gray1 into confusion. Gray1 unequivocally states that "If a judgment were not fully satisfied because of the existence of as yet unawarded attorney fees, the phrase before the judgment is fully satisfied would serve no purpose." (Gray1, supra, 233 Cal.App.4th at p. 892.) The plaintiff's remedy here was to decline to accept the payment until it had recovered all its claimed costs and fees. The California Supreme Court said this expressly in Conservatorship of McQueen (2014) 59 Cal.4th 602. The Second District Court of Appeal apparently felt this was inadequate. But until the Supreme Court takes up the matter again, Wertheim leaves the law on this point unsettled.

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.

Frances Campbell of Campbell & Farahani, LLP joins Tim Kowal and Jeff Lewis for a discussion about housing law, eviction defense, appeals and practicing in limited jurisdiction courts. Fran shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term "HateWrite," and the font Cochin for brief writing.

Appellate Specialist Frances Cambpell's firm website and Twitter feed.

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

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

Cases and other resources mentioned in this episode:

Amjadi v. Brown, No. G059069 (Aug. 30, 2021)

King v. May-Wesely (Oct. 22, 2021) 2021 WL 4929912 (no. F080224) (nonpub. opn.).

Legendary Builders Corp. v. Grovewood Properties, LLC (D2d4 Oct. 5, 2021) 2021 WL 4550995 (nos. B297299, B301777) (nonpub. opn.)

State Farm Mut. Auto. Ins. Co. v. Penske Truck Leasing Co. (9th Cir., Oct. 15, 2021, 20-55893).

Ninth Circuit to resume in person oral argument.

California Academy of Appellate Attorneys' Recommendations to improve appellate court efficiency.

Transcript:

Frances Campbell: 0:05

Some of my best work is I "hate write." When I hate write a brief, that's when I'm really enjoying it and then it comes out great.

Announcer: 0:14

Welcome to the California Appellate Law 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: 0:29

Welcome, everyone. I am Jeff Lewis.

Tim Kowal: 0:31

And I'm Tim Kowal. California Department of podcasting licensed 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 split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for trial. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal.

Jeff Lewis: 1:00

Alright, welcome to episode eightteen of the podcast

Tim Kowal: 1:04

18. And today we recognize Francis Campbell to the show. Fran Campbell is a Los Angeles lawyer focusing on housing law, civil rights, privacy, law and appeals. Fran is a graduate of USC Law School, a certified appellate specialist and a partner in Campbell and Farahani. She has been in practice for over 20 years, and she is also a member of the United States Supreme Court bar. So welcome to the podcast. Fran.

Frances Campbell: 1:29

Thank you so much. Great to be here. Well tell us a little bit about yourself that I might not have captured those three sentences in your bio. Oh, well, that's basically my entire life. I'm the most one dimensional person that you'll ever meet. My I always tell people, My hobbies are the Code of Civil Procedure. So that's it, I part of a firm that just started doing housing long before we formed that firm, I kind of fell into housing law. Because the day I was leaving to start my own practice, which I thought would be a personal injury practice sort of a general litigation practice. I got a call from a friend of mine, and who had was working as the executive director of the eviction defense network. And she goes, Hey, we got 20 tenants with a case that they want to bring against their landlord, would you be wanting to do that? And like, I have no cases, of course, I'd be wanting to do that. So from then I just got known as a person who did housing work. And then a few years later, I formed a partnership with a business lawyer, who's really very gifted and all things contractual. And it's a very good team until now most of our practice is housing, housing law work.

Tim Kowal: 2:53

Well, that's that's interested, I wouldn't have pegged you for for endeavoring to go into personal injury law. And then you come out on the other end doing Housing Law, and as an appellate law specialists that it seems like, like quite a trajectory.

Frances Campbell: 3:04

Well, the appellate law specialist is because I'm stubborn. I do not like it when things don't go my way for it. And I think that the judge made a mistake. I worked as a law clerked for a firm when I was in school that did liquor license defense, very good firm. And one of the things they did was took every case all the way to the end, it was part of their practice, because one of the things I had to do was preserve the liquor license. So I don't know how much you know about liquor license law, but you have to appeal to there's ABC procedure, and then you have to appeal to the ABC Board of Appeals or something like that don't remember is over 20 years ago, and then from there to the Court of Appeal, and then the nor the trajectory then becomes normal. But the reason they kept it going was because if their clients gonna maybe lose their license, which they prevented, most of the time, I will say they want to keep it going because as long as it's on appeal to the valuable asset, the license is preserved. So they did very good appellate work. And so that's kind of where I got the bug for. And I think the

Tim Kowal: 4:19

interesting Yeah, and you got to, you got to have the disposition of being willing to stand up to bullies, right. That's the idea that you don't want to take, you don't want to take guff from anybody. Some people will just, you know, just gotta say, well, that's that's a decision what can we do about it? You know, nothing to be done. But I think the appellate attorney tends to say, you know, we're gonna there's something wrong here. We're just going to, you know, not going to sit down for it. So, what's the what's been the biggest pro and biggest con of practicing during a pandemic and we're going to talk about, you know, some more your practice specifically, but just just for you and your practice. You know, what's been the pros and cons of having to switch up your practice a little bit

Frances Campbell: 5:01

Well, I didn't switch up my practice that much. But I will tell you the cons, I've got a very definite idea of that. No trials means a whole bunch of insurance defense attorneys with nothing to do except write motions for summary judgment. So briefing got very time consuming and labor intensive during the pandemic. And we're still feeling the effects of that. Because we're still getting motion for summary judgment after motion for summary judgment. And so long as it's in state court, where you have 75 days, that's okay, you can make that work with you know, I've got some really excellent associates who are very good at it, but I don't have to come in at the end and do all their work. But anyway, you can plan your time if it's federal court. That's a ball that comes at you with a week to oppose. So just drafting the the amount of drafting has become really unreasonable because of the pandemic.

Tim Kowal: 6:09

Yeah. And what's your favorite part of practicing law?

Frances Campbell: 6:12

Oh, well, it's definitely the writing part. So I do enjoy the writing. Some of my best work is I hate right. When I hate write a brief. That's when I'm really enjoying it. And then it comes out gray. Hate, right? Yeah, to go back and take out a few words and adjectives and adverbs, which I always tell people to do anyway. Yeah, but I think we have

Jeff Lewis: 6:37

Tim, I think we have a hashtag for this episode. #Hate,write. Learn about hate writing with Fran Campbell.

Tim Kowal: 6:42

I learned a new word today hate-write.

Jeff Lewis: 6:44

Yeah, I call it being in the zone, you know, you're fired up about a case and the words just spill on the page without any effort that when you're done, you don't have to do too much editing. That's, that's my happy place.

Tim Kowal: 6:55

Oh, do what they do with overheated adjectives later.

Frances Campbell: 6:58

You sit down at two o'clock, you start point by point very methodical. And at 2:30am. In the morning, you are making it pretty for the court. And you haven't even noticed the time the one when you have sufficient hate to generate that quality brief.

Tim Kowal: 7:15

Right. And you do seem to be in trial court a lot for at least for an appellate specialist. Do you know other appellate specialists who are in trial court as much as you are?

Frances Campbell: 7:25

No, I don't think I do. I just became an appellate specialist just because I was writing so many appeals or, you know, petitions for review or read a mandate and that at some point, it became silly not to be a appellate specialist, I might as well get the training and the credit and be able to put that next to my name. So that's why I did it. Yeah,

Tim Kowal: 7:51

you found found a few dozen hours in the couch cushions for MCLEs extra legal specialist MCLEs. So And speaking of another another aspect of your practice that I found unusual landlord tenant and appellate law, I don't see go together very often. So how did I mean, we talked a little bit about how that came came about. But well, I guess maybe I'll ask you, I was gonna ask you about, you know, what are some of the differences in practicing? Because most UD actions, eviction actions are our limited civil correct. So most of those would go up to to the Appellate Division of the Superior Court rather than to the to the district court of appeal by that, right.

Frances Campbell: 8:30

Sadly, that is correct. And I want to make it clear, we don't just do eviction defense. Some people have impression when you say Housing Law, most of our cases are some kind of variation of fraud, where a landlord has done something sneaky, to trick the tenant to leave their rent stabilized tenancy. And when you think about it, rent stable, a tenancy is a very valuable asset. If someone is living in LA today, their rents 1000 A month say, and they have a one bedroom or two bedroom apartment, an apartment might well go for 3000 a month. So as soon as that person is tricked to move their those $24,000 a year out of their pocket and into the landlord's pocket. So most of our cases, in fact, I was in a federal status conference today, in a case where the landlord trips to people to move out of their apartment. She said, Oh, I'm sorry, my mother is going to move into your place, which is legal to do if it's legit. And they go okay, did you go oh, wait, no, not my mother, my husband okay. And they left anyway. So they left and the husband moved in, but he also did the wife in other words, there was already another legal you another unit did this one that belong to my clients? So they're going to be going to trial with us next week. So that's most of what we do. Now, you asked about appeals and you appellate division?

Tim Kowal: 10:12

Yeah. Yeah. What is it? Like? What are some of the the main differences and taking appeals up to the Appellate Division? You know, most trial attorneys know a little something about taking appeals up to the Court of Appeal. But all the share recently I was I haven't done a lot of practice in the limited civil division. But my first foray into it was realizing that the my I was the respondent, and I realized that the appellant had assumed that the normal timeline applied to file a notice of appeal, they had assumed they had 60 days, they only had 30 days. We got the appeal dismissed.

Frances Campbell: 10:43

Wow. Wow. That's that's a good one. So someone gave Notice of Entry of Judgment, which is rare on the limited civil.

Tim Kowal: 10:51

Right. Right. And there was even a motion for new trial, those deadlines, those those extensions are all cut in half as well. So uh, wow. So that's that was that was one tip I'll always keep in mind is, you know, all of the rules, the timelines to file the notice of appeal. And and remember that they're all cut in half if you're unlimited civil.

Frances Campbell: 11:11

I'll tell you another thing. Not only that, if you're practicing in Los Angeles appellate division, I don't know about the others. I've never filed in any of the others. You better know the rules inside and out. It is maddening. Unlike the Court of Appeal, where you can call code and go Oh, I see what you did there. Oh, I'll fix it. Oh, I'll help you. Oh, I'll give you another day. They'll just boom, strike it. And I recently had the experience where they have a new rule there. They're now accepted. appendices. Thank God used to only be clerks transcript. Oh, wow. Yeah. So I filed I filed on time and they send it back. They sent back my appellate opening brief. And my appendix said, I had complied with a rule on dependencies. I looked at my attendance. I looked at the rule. I could not see anything wrong. They didn't specify what it was. So I went down there. Now I'm two days before my deadline. And I mean, like extended deadline. So I've got to make sure this thing gets online. And I there with this nice clerk lady, and she goes over with me, because I see what you mean. It's it. I don't see what part of the rule you've broken either. Will you accept my opening brief and Appendix for filing? Yes.

Jeff Lewis: 12:38

Okay. Oh, all right.

Frances Campbell: 12:41

But the story doesn't end there. One week later, I get it back in the mail with a strike through, say now I have an applause now I have complied with a wall governing clerks transcripts. I'm like, no. So I went on the phone and had a long talk with the supervisor, where she and I had a spirited discourse about the meaning of the rules of request for judicial notice. Appendix instances of appendices, and clerks transcripts. And she says, Well, no, I'm sorry. I don't think so. And I said, so what should I do? She goes, you're gonna have to do it the way I'm telling you, and also file a request for relief from default. That's it. I'm in default. Yes, you are. Well, I haven't received an order before. Oh, well, you better file a request for relief from default. Anyway, she had put me in default. That kind of thing that happens in the Los Angeles Appellate Division. I really wish they would do something about the well, I don't know how to say I mean, it's a they do it. And it's just crazy. maddening, because you get stuff from the other side doesn't comply with the rules at all.

Tim Kowal: 14:04

You're running afoul of the local, local local rules?

Frances Campbell: 14:07

Yeah, it's the local, local local rules for sure. And then also, there's no E fun. It's all got to be on paper. You've got to send messengers, oh, my God, it's free. Now.

Jeff Lewis: 14:18

You've convinced me never ever to handle one of these appeals. Let me ask you this. If you lose in the Court of Appeal, you've got options to petition for rehearing and protection, perhaps a petition for review the California Supreme Court. What happens in the rare case that you lose the one of your limited jurisdiction appeals? What's the next step?

Frances Campbell: 14:37

Petition for transfer? First, you have to ask the Appellate Division to please transfer it to the Court of Appeal. And they you know, like most courts would say, yeah, no, I don't think so. We did a fine job. But that's a precondition to ask me now the Court of Appeal to accept transfer of it. So then you have to ask the Court of Appeal to accept transfer and they will probably say We have enough work to do so no. So you're pretty much stuck.

Jeff Lewis: 15:05

Okay. Both of those steps are discretionary. And both of them are low percentage just steps in terms of except I

Frances Campbell: 15:11

don't know what the percentages are. But I assume so usually when discretionary, it's low percentage.

Jeff Lewis: 15:16

All right. Okay.

Tim Kowal: 15:17

Interesting. Okay. And I had a question about how does the Appellate Division is it bound by the District Courts of Appeal like this, like the the trial court is or, you know, we don't have horizontal story decisis, starry decisis here. So the District Courts of Appeal can can ignore the other District Court of Appeals opinions, it could even ignore its own previous opinions out of out of the own display its own district. What about the Appellate Division? Is it bound? Or does it also have autonomy like, like the district courts?

Unknown: 15:47

No, they are bound. They're the same as the trial court. So they're bound by the Court of Appeal on whatever district? So unless I'm wrong about that, but I do believe they are bound by all court of appeal, because it's a higher court.

Tim Kowal: 16:00

What about all the differences in oral argument in the Appellate Division? No, they

Frances Campbell: 16:05

also went to virtual hearings, and I think I've done one, and it worked very well. Although, you know, it didn't work out that well for my client in the end. But as terms of argument, it was it was fun, as good as appearing in person, although my opposing counsel appeared in person. So I don't know if I do it that way again, but I thought I thought it was good. I thought it was acceptable. I don't know what you guys think about virtual oral arguments. But I'm a fan.

Jeff Lewis: 16:36

I'm a huge fan, so long as everybody's doing it. I don't want to be the guy stuck in the office when my opponents down there in person, but I am a big fan. And in terms of access to justice, I think it's a great thing. And I really hope post pandemic remote proceedings are allowed liberally.

Tim Kowal: 16:53

Well, the fourth third down here in Santa Ana has moved back to in person or arguments. I did my first in person oral argument a couple of weeks ago, since the pandemic started.

Jeff Lewis: 17:04

Tim, when you signed up for oral argument, did you have the option to do video? Or did they say nope, show up?

Tim Kowal: 17:10

You can make a special motion, but otherwise you are expected to show up in person.

Jeff Lewis: 17:15

I see. I see.

Frances Campbell: 17:17

I like that. I'm looking forward to getting dressed again formally for you know, from from not only from the waist up.

Tim Kowal: 17:26

I saw someone at a at a Halloween party dressed up in a in a jacket and tie and then pajama bottoms and slippers. Going as an appearance and attorney ready to appear for oral argument. during a pandemic that is So Fran, you had mentioned that the Appellate Division, if you want review of a decision out of the Appellate Division, yet you have to file a petition for transfer to the Court of Appeal. And those are entirely discretionary. Have you noticed any kind of do you have any opinions on whether that kind of tends to render the opinions out of the Appellate Division somewhat shielded from review? Because they're less likely to get reviewed from a district court of appeal? And certainly, are they I don't know. Maybe there's another question or they also that does that also tend to shield them from review in the Supreme Court?

Frances Campbell: 18:18

I don't know how you get into the Supreme Court. There's a there's a couple of cases that ended up in the Supreme Court from a limited jurisdiction Unlawful Detainer. But I have to assume the way that happened is that they did something that was perhaps outside their jurisdiction. So someone filed a petition for writ of mandate, and then you can petition for review from the denial of the petition for writ of mandate. There are a couple of cases where that happened. I'm not sure they had the same rules at that time regarding transfer. So I don't even know if that's possible now. But yeah, it's a big problem that appellate decisions are shielded from review. And in fact, far more also, because not only are their decisions, unpublished. They're unpublished and unavailable online. So no one sees them. No one knows about them. And in the last case, I did I asked for rehearing because they use the same authority to decide a case one way and years later, in my case, use the same authority decided another way. And I don't know who was proper, were right. But I attached their 10 year old decision that someone's friend of mine sent me and say, obviously, this needs to be heard. Work. Obviously we need to transfer because we need some clarity on what this means. So we don't know and as someone who does practice in limited portable, hot because of unlawful detainer litigation. There's just no body of law that Tell the various courts how to handle certain very fundamental questions. Like, for example, who has standing to bring an unlawful detainer I think it's very clear that only a landlord can, or a property management company that actually has a lease with a tenant. But it's very common thing for property management companies to file unlawful detainers in their own name, even though they don't own the property, and they have no contractual relationship. And I keep arguing with some success to some judges and not success to other judges, that that case has to be dismissed or they have to sub in the name of the actual landlord. And it's it's really just maddening that we do not have a decision from the court of appeal that clearly says, the answer to that question.

Tim Kowal: 20:57

They haven't decided that in a published position anywhere?

Frances Campbell: 21:00

No, they have not, at least not directly. At the there's a couple of cases that are commercial. So the rules are a little different, but in an unlawful detainer action, the plaintiff is asking for possession of the real property. Well, you can come along as stranger to the contract and stranger to the realty is a give me possession. How can a court award possession of real property someone who doesn't own it? They can. Now the other thing they ask for is forfeiture of the agreement. Seems to me, you need to be both the owner and the contracting party. You can't ask for forfeiture but agreement to which you're not a party interest. I don't know why this isn't a subtle point. It should be a subtle point. I keep asking for it to be settled point. And apparently for the next 10 years, I will continue to be asking for it to be a settled point.

Tim Kowal: 21:55

Well, that's that's what happens when courts decide keep deciding issues on their shadow docket. I think that's I think that's a that's a correct application of that term. Isn't a Jeff? The Shadow docket your are your Supreme Court watcher on the podcast?

Jeff Lewis: 22:11

Yeah, yeah, I think so. I think so.

Tim Kowal: 22:14

I mean, any opinion that's decided unpublished is essentially a shadow docket. It's effectively disguise from from public notice and and from future court notice, because you can't bring these decisions to the future Court's attention, even if it is decided, in issue unambiguously. One way it's free to ignore it. The other I guess it could do it, it could still it's still free to ignore it, even if it is published. But I think it obliges the court to give some explanation for why it's disagreeing with it.

Jeff Lewis: 22:43

Yeah, yeah, I agree. You know, I'm a big fan of published decisions. And I do not like the rule, not allowing citation, unpublished decisions, but that's just me personally, Hey Fran, let me ask you this in terms of eviction, I know two things. One, I'm not competent to handle it. So I gotta refer all my tenant work to you and all my landlord work to Eileen Kendall, I know that. And then my second thing I know is that from a bunch of headlines, there's a tsunami of evictions coming. I once mentioned that to you in a conversation or an email and got a blast back from you suggesting maybe it's all a myth, and there is no tsunami. What are your thoughts on the coming Tsunami of evictions?

Frances Campbell: 23:21

Absolutely no tsunami, as I predict back in the beginning, when the when, when they send us all home, but we were all afraid. Maybe not you do but definitely me. It's It felt as if you walked out your front door that COVID was gonna come in and kill you. You know, that's why there's no cars on the 405. Everyone might act brave now. But at that time, I believe that's how we felt. So at that time, when there's addictions, I told people do not worry about your addiction. Here's what you do you answer you guys for jury drop, oh, this is gonna get thrown off in the in the future. So people did and then the judicial council came in and said, We're not going to allow any issuance of summonses in unlawful detainer cases. So that stopped the eviction tsunami, then the judicial council got they say, Hey, why are you making us do this dirty work for the State of California state? Come come in here with a rule because we're gonna allow summonses to issue. So the state said, Well, okay, we're gonna fashion this rule where people if they pay 25% of their rent, they can't be evicted. We'll figure it out later, how you get your money. landlords will let you sue in small claims court for it. And so that lasted 13 months. And now we're at the final stage of what I believe is that whole scheme is they're making landlords in order to get a summons for an eviction case to actually have applied for housing assistance. So you can't just have a cranky landlord who wants his money but what he really really wants is the tenant to be gone. So now they have to have show they have applied for eviction is a relief or flurry rent relief, and also that the tenant has, and it stopped evictions. And I've talked to other practitioners on both sides. And I talked to a good friend of mine who does evictions for the landlord. And he just says, even now, there's just a general queasiness of going in there losing all these cases, if they have to do with rent, so they are not bringing up the eviction cases that happened during the pandemic. were things like you're creating a nuisance, right. But even though there's a moratorium that said no nuisance evictions without just an affirmative defense, and some courts didn't buy it, and maybe there was a breach of the lease, you have 18 cats, you know, and that's a breach of your lease, but you couldn't evict for pets during the pandemic either. So there were a bunch of little kind of niche, unlawful detainer issues, most of them got thrown out. I didn't go to trial anything during the pandemic. So,

Tim Kowal: 26:09

so so there's this this whole backlog, whole backlog of evictions, what's gonna happen to them, if there's not a tsunami are people just going to wind up staying longer than they would have?

Unknown: 26:19

Well, there's not an tsunami in evictions because the landlords are getting their money, their billions of dollars to be given to landlords now who didn't get rent, and, and so hopefully, you know, everyone should be happy. It's like, okay, we got our money. But when all this starts, you know, what will start up again, I'm sorry, when the whole COVID scheme ends, what's going to start up again, which will happen in Los Angeles and other places that have rent control, or Ellis Act evictions, owner move in evictions, which have generally been placed on ice during the pandemic. And Ellis Act eviction, if you don't know is where the landlord decides, I have got the right to Evelyn to go out of the rental housing business. And I'm going to take my apartment and have all the tenants leave and just let it sit empty. Some people want to do and there's very interesting case called Nash versus City of Santa Monica, which gave rise to the whole LS app. You can might read it sometime. But that so that's something that happens. And of course, landlords want to do that, because maybe they have other plans, it's going to be a family compound. Or maybe they're just gonna let it sit empty for five years, at which point they can raise the rents to market and some landlords that makes economic sense. Sadly,

Tim Kowal: 27:34

You mentioned a general queasiness on the part of landlords that may not want to initiate action because they figure there's there's got to be some law still hanging out there some ordinance some some way, I'm gonna get denied relief. So they figured, why bother?

Frances Campbell: 27:52

It's definitely true. In the city of Los Angeles, we have our own special anti eviction ordinance here during the local emergency period, which has no end yet. So even though it only creates an affirmative defense, which in my opinion, is a tough for rent fest to show that you the reason you're not paying your rent in October, November, is directly related to the pandemic. Today, with so many people, I mean, employers looking for work, I think that's going to be a very hard burden to meet. But my friend and landlords bar says we don't want to, we don't want to go there. There's a feeling that there, we're just not going to win. So that's what's going on right now. I think when the all the local moratoria expire, and the local laws expire, the local city laws expire, then you're going to start seeing evictions for non payment again. And I think that's going to be fairly soon in the next few months. But I still think it's going to be a tsunami. Most people have gotten money from the government that set aside for exactly this purpose. So that's where I come out on it, the government did a really fantastic job of stopping the evictions, you know?

Tim Kowal: 29:04

And when the government money stops coming, are the tenants gonna be able to just start paying are they have they been habituated into thinking that they've got a free ride?

Frances Campbell: 29:12

No, I don't think any tenant thinks they've got a free ride. In fact, one of the things that eviction tsunami has caused was is tons of anxiety, unnecessary anxiety on the part of tenants who are trying to understand the laws as they come down every couple of weeks or so. And what does this mean for me? And I mean, I talked to someone, senior staff attorney from the inner city law, inner city law center, and she says, Well, what we hear is just a lot of fear and a lot of anxiety about what's happening if that's also my experience, but as to evictions, they're just not happening. Now, good luck tenants fine to understand these laws. The practitioners barely understand them. We all get together on the first day. What do you That means and we come to consensus works.

Tim Kowal: 30:04

Yeah, well, that's it almost seems like it's a, it's not even a practice of law. It's you know that the laws are so malleable, at least over the last 18 months, it's I'd written down here, I wanted to quote you federal 62, the quote at a federal 62 and see what your your thought on it is, there will be a little avail to the people, that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood, if they be repealed or revised before they're promulgated, or undergo such incessant changes that no man who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action. But how can that be a rule which is little known and less fixed? And I thought that kind of that's what comes to mind when I think of the the eviction laws and regulations and exec executive orders and regulatory orders over the last 18 months is I don't even know where to start with them.

Frances Campbell: 31:00

Eviction law is a particularly statutory interpretation based practice. And it was difficult, I mean, not difficult, but you know, it's something that I didn't know how to do interpret statutes before the eviction tsunami and the eviction tsunami of laws after, it was just insane, trying to, to work them all out and try to interpret them all with relation to each other. And if you like statutory interpretation, kind of fun. I had a couple of dinner parties at my house, when we drank wine tried to figure them out. It was alright, we worked it out. So I'll be glad to see them them gone. Actually.

Jeff Lewis: 31:47

I don't ever want to go to one of Fran's dinner parties. If that's what you do.

Frances Campbell: 31:51

Oh, hey, well, that's all we do if you got lawyers in the room, and we're gonna talk about civil procedure.

Tim Kowal: 32:00

All right. So Fran has an appellate lawyer. Do you have any pet peeves that you want to share about trial lawyers or clients about the cases that they bring you for appeal?

Frances Campbell: 32:12

Very few people bring me cases for appeal. I mean, there are few, particularly if it has to do with unlawful detainer because I'm known as someone who can do both. But most of my cases are just my firm's cases where that we feel judged. got it wrong. Yeah. So I don't really have any pet peeves in that regard.

Tim Kowal: 32:33

Well, I don't know if anyone is gonna do you know, many attorneys who are taking taking their eviction cases up on appeal other than your firm?

Frances Campbell: 32:41

I sure actually, there's a nonprofit called bosta. And Eric post works for bosta. And he does a ton of limited civil appeals. They just have a piece the arm of that organization that does all their appellate work. So if I know sometimes we share briefs.

Tim Kowal: 33:01

Yeah. Well, I don't know any other so you'll be my go to in the future. So Jeff, I think it's I think it's time to get to the lightning round.

Jeff Lewis: 33:11

Oh, yes. Fran, you've heard the podcast before these are quick questions, short responses, the most vexing questions that concern apellate nerds around the world. They're discussed at dinner parties like yours on Saturday night. Okay,

font preference: 33:24

centric schoolbook. garmont or something else?

Frances Campbell: 33:29

Something else entirely? Cochin. C O C H. I N. It is the most beautiful of all the fonts and especially the queues huh? Chef's kiss. It is elegant and wonderful font.

Jeff Lewis: 33:45

That bonus follow up question has the Appellate Division ever rejected one of your briefs were being filed in that font?

Frances Campbell: 33:52

Nope. It's close enough to Times New Roman only one judge in district court right it says it has to be a career Walker. I think his name is he also has a special type of hole punch that you have to use a particular like yeah, we have a special hole punch just for this judge.

Jeff Lewis: 34:14

Holy smokes all right, two spaces are one after a period

Frances Campbell: 34:17

One. Come on its the 21st century.

Jeff Lewis: 34:20

Alright, thank you pled or pleaded

Frances Campbell: 34:23

pleaded

Tim Kowal: 34:25

Thank you. Fran.

Frances Campbell: 34:29

Welcome

Jeff Lewis: 34:30

argument headings all caps initial caps or sentence case.

Frances Campbell: 34:34

Oh, okay. So all caps for the first one if it Sure enough, but everything else sentence case is how much coming out on that because their senses do you want people to read them or not? I like that answer.

Jeff Lewis: 34:51

No argument here. left justify or Full Justify.

Frances Campbell: 34:54

Whoa. Now here. My partner my law partner and I just come to blows on this So he is an all justification. So our trial court stuff is always fully justified or he will just tear a tear out and literally kill me. He'll have to grab this alone or and I'll be there but in the Court of Appeal left justified I think Butterick has done the work. The research shows is the easiest to read. And that's what I hear about you people gonna be reading library on screen, so left justified.

Tim Kowal: 35:31

So I'm glad we asked Jeff, there are some people who still like Full Justify

Jeff Lewis: 35:36

that's your takeaway.

Tim Kowal: 35:39

I was dubious that they existed, but Fran just confirmed it. Oh,

Frances Campbell: 35:43

we're fully justified in the trial court's

Jeff Lewis: 35:46

Alright, yeah. Final lightning round question. Pronunciation of the following words, is it is it niche or niche?

Frances Campbell: 35:57

I say niche

Jeff Lewis: 35:59

X party or ex parte X party. And on bonk, or on, bonk.

Frances Campbell: 36:06

I couldn't even hear the difference. Me either.

Jeff Lewis: 36:09

Tim wrote these out for me. All right.

Tim Kowal: 36:12

phonetic spelling. On bank or on bonk.

Frances Campbell: 36:17

I will say yeah. So you

Tim Kowal: 36:18

go for the sophisticated pronunciation on niche and bonk but not annex party.

Frances Campbell: 36:24

Yeah, right was more like a party, isn't it?

Tim Kowal: 36:27

Yeah. It's more fun when you say it that way. Yeah.

Jeff Lewis: 36:32

All right. Well, we want to thank you for joining us on the interview portion of our program. The next portion of our discussion is sharing some recent news and research cases and tidbits. We'd like to stick around and discuss those cases with us.

Frances Campbell: 36:44

I sure would. Thanks.

Jeff Lewis: 36:47

Alright, Tim, why don't you lead us off? All right,

Tim Kowal: 36:49

Jeff. So the for the first case that I come across was I was reading Michael Shipley's blog. And he talked about a case from a couple months ago called jadi versus Brown. And it talks about settlement agreements and and the case points out under Rule 1.2 of the Rules of Professional Conduct when it comes to settlement agreements, attorneys must abide by the client's decisions on settlement. The rule 1.2 Unequivocally states that quote a lawyer shall abide by a client's decision whether to settle the matter. And the reason that came up is apparently in this case, I'm Johnny versus Brown, the the attorney did not want to go along with the clients decision to settle and cases have found that frustrating a client's authority when and under what terms to settle can constitute moral turpitude. So this all results in the Court of Appeal invalidating a settlement entered over the clients objection. And the Court declared the retainer agreement void. And the lawyers were reported to the state bar.

Jeff Lewis: 37:47

You know, I read that case, I thought it was odd as a public decision. It seems clients authority to be the final say on settling a case is pretty straightforward law. And the facts here were so wacky, have an attorney enter into a settlement over their clients objection. I don't understand why this is a published decision. I can't imagine these facts coming up again, that is interesting. Interesting read.

Tim Kowal: 38:09

Well, maybe attorneys need to be reminded from time to time.

Jeff Lewis: 38:14

All right. Next, our news and tidbits the Ninth Circuit is gonna resume in person arguments. In January, we'll post in the show notes protocol of basically one lawyer and I believe one or two assistants, either client or paralegal or second chair, can show up in person if they're vaccinated. If you want to show up remotely, I guess unlike the fourth three, they will allow you to appear remotely without a formal motion.

Tim Kowal: 38:41

Okay, let's see. I had another case that I wanted to talk about. And it had to do with with a standard of review and trial attorneys are familiar with the three common standards of review substantial evidence, abuse of discretion and de novo. But I wonder, Jeff, if you had ever heard or Fran, have you ever heard of the standard of review known as the finding compelled as a matter of law standard of review?

Jeff Lewis: 39:05

No.

Frances Campbell: 39:06

No, you guys always scare me come up with this stuff that I've never even heard of.

Jeff Lewis: 39:10

It's Tim blame Tim for your lack of sleep.

Tim Kowal: 39:13

That's what I live for. So the case is King versus may Wesley. It's an unpublished case. But the the plaintiff there was the holder of a $12 million judgment against the defendant judgment debtor and the lead and allege that the debtor had engaged in fraudulent transfers of his wealth. The trial court entered a judgment for the debtor finding the plaintiff failed to reduce any evidence of fraudulent intent. But so this was a judgment for the defense and the plaintiff took this up on appeal. Typically, plaintiffs don't take a case up on appeal because you failed to persuade the finder of fact, you can't let you can't argue with the substantial evidence standard of review applies and see see I do some substantial evidence you had to give me you're obliged to give me a judgment. My favorite once I offer substantial leverage No, no, no, that's not how it works. You can the plaintiff can only get relief, if you could if the plaintiff can show on appeal that, that the evidence the plaintiff offered was so overwhelming and not contradicted at all by the defendant that a judgment in plaintiffs favor was compelled as a matter of law. So that's the finding compelled as a matter of law standard of review.

Jeff Lewis: 40:23

Okay, I'll add that one. add that one to the notes for everyone to read. Alright, next case, I want to talk about, you know, I'm always interested in citation of non published or unpublished decisions, and there was interesting dissent in October 15 opinion from the Ninth Circuit, the case called State Farm vs. Penske Truck Leasing company, and the majority majority of the set of a three panel of the Ninth Circuit had a tussle regarding citation to unpublished opinions. The dissent suggested that in areas where the California Supreme Court has not settled issue, that an unpublished decision of the California Court of Appeal could shed light on how the issue might be to see it decided in the future in California. The majority cited California rule of court 8.1115 A for the proposition that unpublished California appellate cases can never be cited by any other courts, not just California courts, but federal courts. But the dissent argued that the Ninth Circuit had relied on an unpublished decision or had relied on unpublished decisions in the past, and that three California Judges interpreting California law are far more accurate barometer of how the California Supreme Court would decide an issue, then a couple of federal justices. Anyways, interesting read if you're ever in need of authority for citing an unpublished decision while you're in the federal system, I'd recommend the State Farm versus Penske Truck case.

Tim Kowal: 41:48

Yeah, I've always thought that it would be a useful public service for a federal judge just to start citing all of the California non published decisions and that way we California practitioners can cite to that federal authority. And that way you kind of get in those none unpublished decisions through the back door.

Frances Campbell: 42:05

Yes, what a great idea.

Jeff Lewis: 42:07

I hereby support your nomination to the bench.

Tim Kowal: 42:10

Yeah, I just got to get the ear of some of a public service minded federal judge and I had a question about this case, Jeff and Fran, it's it's about statements of decision. So the case is legendary builders Corp versus Grovewood. properties. And it's an it's a helpful illustration about how you can set up a strong technical argument on appeal through by objecting to the statement of decision. So there in that case, there was an omission of a required finding in the statement of decision. And because a This finding was omitted, the appellant was able to obtain a reversal on appeal. But here's the catch. So this is so far, so good for the appellant. Right, you got the judgment reversed. But the remedy was, the judgment was vacated, with direct with with remand directions on remand for the trial judge to look at the record and decide whether the missing finding could now be made. So I wondered, did this actually get the appellant anywhere?

Frances Campbell: 43:07

Yeah. frustrating for the appellant. Oh, court, go back and fix your statement, a decision, please. So we could be done with your case.

Tim Kowal: 43:16

Right now?

Jeff Lewis: 43:17

Might as well just affirm. Yeah. I wonder. I wonder, though, if appellate counsel had omitted the omitted issue issue regarding misstatement decision, with the result have been any different. I mean, it seems like if the Court of Appeal wanted to reverse it could have found a way to do so. And he'd want to just affirm, instead of making the trial court do this work, and they could have affirmed It's very odd decision, find really odd decisions in your readings. Tim?

Tim Kowal: 43:40

Well, and here's one other wrinkle. If the if the appellant had not done, done the homework and the trial court and have improperly objected to the missing finding in the statement of decision, then on on appeal, the Court of Appeal would have employed the the implied findings doctrine and assume that the finding was there, and then would have proceeded to determine whether the record contains substantial evidence to support that finding. And then if not, then it would have been reversed on the merits with a new trial order rather than with directions for the trial court to just make up the finding. In other words, it would have it would have eliminated a whole whole additional round in the Court of Appeal, because now what's going to happen is the case is going to go back the trial court is going to say, yeah, here's the finding that I forgot to do last time, you know, so assuming and then you take up the appeal again, and then it's going to be reviewed this time for substantial evidence. Why didn't they just review for substantial evidence the first time? Yeah, yeah. So very odd. Yeah. Yeah, I thought it was a very frustrating opinion.

Jeff Lewis: 44:42

All right. Final tidbit. I noticed from Ben Shotz blog, the Southern Californi appellate news blog at th California Academy of Appellat Attorneys has mad recommendations to the Judicia Council for making appeals mor efficient, and it's not a lon report. They have a number o different recommendations t make To get it to on this show but in general, the recommen shifting record preparation fro overburdened court staff to th parties using memorandu opinions in lieu of ful opinions in simple appeals, an having parties identify case early in the process as bein simple and worthy of memorandum opinion. And the finally, and not surprisingly the attorneys who make up th California Academy of appellat attorneys thought that th ability of attorneys to seek an obtain extensions for briefin that should be retained

Tim Kowal: 45:35

Yeah, yeah.

Jeff Lewis: 45:38

Are either of you a member of the California Academy of appellate attorneys?

Frances Campbell: 45:42

Tim Kowal: 45:43

just Oh, okay. No, it's one of my aspirations. Okay,

Jeff Lewis: 45:47

I nominate you. Alright. That's all I had. For tidbits there, Tim. All right, that wraps up this episode.

Tim Kowal: 45:53

Yeah, that wraps it up. Thanks again to Fran Campbell for joining us. If you have suggestions for future episodes, please email us at Cal podcast@gmail.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis: 46:09

See you next time.

Announcer: 46:11

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

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

Businesses in litigation want to "win the battle" but also need to "win the war." Outside general counsel Lee Goldberg tells Jeff Lewis and me when and why businesses sometimes take the long view on litigation, even willingly taking short-term losses to get long-term gains.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 17, available 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.

There are a few different ways a lawsuit can end. Judgments we know about, and settlements are common. But what happens when the plaintiff just up and dismisses the lawsuit? Can the defendant get costs? And is the cost award appealable?

There is a split of authority on these questions, as noted in Thomas v. St. Joseph Health System (D4d3 Oct. 20, 2021) 2021 WL 4889873 (no. G059408) (nonpub. opn.). Seeing the writing on the wall on the defendants' motion to quash based on personal jurisdiction, the doctor-plaintiff dismissed his right-to-practice and unfair-competition lawsuit (which he would later refile in Texas). The defendants recovered the significant costs they had incurred through a number of depositions during jurisdictional discovery, and the plaintiff appealed.

The court noted a split of authority, but came down on the side of finding a cost order entered after a voluntary dismissal without prejudice is appealable as a final judgment. (But the court went on to affirm the cost order.)

The appealability holding seems to me clearly correct, with all due respect to the contrary authorities.

Even If a Voluntary Dismissal Without Prejudice Is Not Appealable, the Cost Award Itself May Be Considered a Judgment:

The Fourth District noted two cases disagreeing on the question of whether a cost award following a voluntary dismissal without prejudice is appealable.

Taking the con side is Mon Chong Loong Trading Corp. v. Superior Court (2013) 218 Cal.App.4th 87, 92 [costs order following voluntary dismissal without prejudice is not appealable post judgment order, but appellate court in its discretion may treat appeal therefrom as petition for writ of mandate].)

Taking the pro side is Gassner v. Stasa (2018) 30 Cal.App.5th 346, 351-355 [costs order following voluntary dismissal without prejudice is appealable "judgment" because it is a final determination of rights of the parties in the action].

The Fourth District takes the pro side represented by Gassner, and further stated that, regardless of the appealability issue, it would treat the appeal as a writ.

Gassner itself offers persuasive reasoning. It agrees with the basic premise that a voluntary dismissal without prejudice "is clearly not a judgment. (Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760-761 ["there is no kinship of a voluntary dismissal to a final judgment"]...."

But Gassner goes on to note that does not end the matter: "It follows that a costs order following a voluntary dismissal by the clerk without prejudice is not appealable as a postjudgment order under Code of Civil Procedure section 904.1, subdivision (a)(2). For the same reason, however, such a costs order is the final determination of the parties' rights; hence, it is a judgment and appealable as such under Code of Civil Procedure section 904.1, subdivision (a)(1)." The court concluded the cost order was appealable as a judgment in its own right. (It also suggested, but did not decide, that it might also be appealable as a collateral order. In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.))

The Cost Order Probably Is Appealable as a Collateral Order:

On that question, a cost order may be appealable as a collateral order. It is a final order. It is collateral to the merits. And it requires the payment of money.

But note that Rutter points to a split of authority when it comes to orders on motions to tax costs. Barnes v. Litton Systems, Inc. (1994) 28 CA4th 681, 685, fn. 4, holds that an order to tax costs does not literally direct the payment of money, and thus is not appealable as a collateral order. But Krikorian Premiere Theatres, LLC v. Westminster Central, LLC (2011) 193 CA4th 1075, 1083-1085, holds that there is "no meaningful distinction between an order awarding costs and an order denying a motion to tax costs." Thus, an order denying a motion to tax, in whole or in part, is appealable as a collateral order.

Comment: As a Matter of Logic, Every Case Must Have a Final Order:

While some cases end with a whimper rather than a bang, the internal physics of litigation suggest that every case must have a beginning, and an end. It would be surprising bordering on the ridiculous to suggest a case has ended without a final order of some sort.

Some authorities on point include: Rothschild v. Tyco Internat. (US), Inc. (2000) 83 Cal.App.4th 488, 493 [where no judgment entered, appeal from nonappealable order of dismissal deemed taken from a judgment of dismissal]; Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 829 [where court neglected its ministerial duty to render an appealable judgment, appeal deemed taken from such a judgment].)

The great majority, bordering on unanimity, of such cases conclude the appellant’s right of review is to be respected. As the California Supreme Court observed, “[r]eviewing courts have discretion,” in cases of such dispositive yet technically nonappealable orders, to treat them “as appealable when they must.” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) This means that, where there has been a final ruling on the merits and the trial court intends to take no further action, the reviewing court should find appealability. (See Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 904 [rule applies where court “clearly intended” apparently unsigned decision on the merits to be final, and “[n]o party argues otherwise”].)

A Note About Limitations on the Right to Dismiss Without Prejudice:

Litigants considering a strategic voluntary dismissal should take caution: there is some question in the Thomas case whether the plaintiff was permitted to dismiss without prejudice once the writing was on the wall. Under Code of Civil Procedure section 581, a plaintiff only has the unilateral right to dismiss with or without prejudice “before the actual commencement of trial.” (§ 581(b)(1) & (c).) But if the plaintiff wishes to dismiss with prejudice, he may also do so after commencement of trial. (§ 581(e).) “[E]xceptions generally arise where the action has proceeded to a determinative adjudication, or to a decision that is tantamount to an adjudication.” (Bank of America, N.A. v. Mitchell (2012) 204 Cal.App.4th 1199, 1209.)

The test, in practical terms, is whether the plaintiff's intent was to end the litigation or “to manipulate the judicial process to avoid its inevitable end.” (Marina Glencoe, at p. 878; see Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 544 [“[t]he legal principles that have evolved in this area tend to focus on the reasons for the dismissal and whether the plaintiff acted in good faith or merely for tactical reasons designed to prevent a defendant from obtaining an otherwise inevitable summary judgment”].)

“[T]he common thread running through all of these decisions is the notion of fairness, which in turn depends on the plaintiff's motivation and intent in dismissing his complaint.” (Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 546.)

“The thread of fairness is twisted out of true” in such cases as where a party dismisses after fact-finding has commenced: “To allow real party to dismiss in the wake of an unfavorable referee's [fact-finding] recommendation would work an injustice. Trial had ‘actually commenced’ within the meaning of section 581 and within the policies of fairness in the cases set forth above.” (Gray v. Superior Court (1997) 52 Cal.App.4th 165, 173.)

The sort of tactics the cases seek to deter are on display in Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765. There, defendants moved for summary judgment against plaintiff’s complaint to cancel a deed of trust on real property. At the hearing on the motion, plaintiff requested and the court granted a continuance so plaintiff could adduce further opposition evidence – deposition transcripts that had only just become available. Instead, plaintiff dismissed without prejudice. The trial court refused to enter dismissal, and upon plaintiff’s appeal, the decision was affirmed.

In the Thomas v. St Joseph case, the plaintiff waited until the trial court issued a tentative ruling indicating the court's intent to grant the motion to quash due to lack of personal jurisdiction. The court set a further hearing date, but before the hearing arrived, the plaintiff filed a voluntary dismissal without prejudice. Based on Mary Morgan, the trial court would have been well within its discretion to refuse to enter the dismissal, and to dismiss on the merits.

And in that case, there would clearly have been an appealable judgment, and the defendants clearly would have been entitled to their costs. The plaintiff's decision to voluntarily dismiss should not change that fact.

Consider consulting appellate counsel before proceeding with a strategic voluntary dismissal.

Does corporate counsel always tap the "white shoe" law firms for trial work? No, says outside general counsel Lee Goldberg. Lee tells Jeff Lewis and me that while white shoe firms have their place, what businesses really need is excellent trial counsel who understand the particular needs of their clients, and why relationships matter.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 17, available here.

You know that the 60-day deadline to appeal starts the moment the clerk or a party serves either a notice of entry or a "filed-endorsed copy of the judgment, showing the date either was served." (Rules of Court, rule 8.104(a)(1)(A).) So what happens when the clerk serves a 23-page minute order granting an anti-SLAPP motion, along with a certificate of mailing? The judge clearly has decided the anti-SLAPP motion, which is an appealable order. The certificate shows the date of service. So the 60-day period starts running, right?

Wrong, says the Second District in Nejad v. Abernathy (D2d4 Nov. 1, 2021) 2021 WL 5049091 (nos. B304481, B307759) (nonpub. opn.). Rule 8.104 is read literally. There was no document titled "Notice of Entry," and no file stamp on the minute order. Thus, service with the minute order was insufficient to trigger the 60-day deadline.

The court cited *Sunset Millennium Associates, LLC v. Le Songe, LLC* (2006) 138 Cal.App.4th 256, 259-260, which held the 60-day deadline was not triggered by the clerk's service of a minute order, despite the fact the minute order stated the words “notice of entry” — albeit on page 13 of the 14-page document.

And as the California Supreme Court noted in the key case on determining whether an order is appealable, Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, at page 903: "courts have consistently held that the required "document entitled `Notice of Entry'" (rule 8.104(a)(1)) must bear precisely that title, and that the "file-stamped copy of the judgment" ( ibid.) must truly be file stamped" [citations]."

Sunset Millennium is a good case to bookmark. The 14-page order granting an anti-SLAPP motion stated the words "notice of entry" inside the document. That was not good enough. "Because the 14-page minute order was not entitled "notice of entry," we deny defendant's dismissal motion." (Sunset Millennium, supra, 138 Cal.App.4th at p. 257.) Merely including the words "notice of entry" inside the document "does not comply with the literal requirement that the document providing notice of entry be so entitled." (Id. at p. 259.) "Within reason, rule 2 [now rule 8.104] is read literally." (Id. at p. 260 (citing In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 686 [ 36 Cal.Rptr.3d 286]; 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 672 [ 33 Cal.Rptr.2d 674] [rule 2 "must stand by [itself] without embroidery"]; Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1122-1123 [ 6 Cal.Rptr.2d 224] [change in rule 2 read "literally"]).)

Still, I would not chance it. If you have an appealable order, why wait to appeal? True, the California Supreme Court in Alan v. American Honda held that "the rule does not require litigants ... to guess, at their peril, whether such documents in combination trigger the duty to file a notice of appeal." And the Court there held that an appealable minute order did not trigger the 60-day period because it was not stamped. But Alan v. American Honda also stated that even in cases where an order is not technically appealable, "Reviewing courts have discretion to treat [such orders] as appealable when they must" (for example, when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits). (Alan v. American Honda, supra, 40 Cal.4th at p. 901.) So if the analysis is ultimately discretionary, how long before a court realizes that file-stamps on minute orders are implied given such orders are creatures of the court's file in anyway?

(See more on appeals from minute orders here.)

If you are in doubt, you may want to consult with an appellate attorney.

To arbitrate or not to arbitrate? Outside general counsel Lee Goldberg shares his experiences and perspective on arbitration with Jeff Lewis and me, and how to balance arbitration's pros and cons.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 17, available here.

When a jury becomes unavailable before a verdict is returned, the result is a mistrial. Likewise, when a judge becomes unavailable before the statement of decision is entered, the result is a mistrial. Both common law and statute entitle either party after trial to ask the trial judge to decide the cause independently as the "thirteenth juror." So it stands to reason that, if the judge becomes unavailable before a new trial motion can be decided, the result should be the same: mistrial.

But that is not the way the cases have come out where the trial judge becomes unavailable before deciding a new trial motion. As illustration is the recent case of Hakenjos Hall Prof. Svcs, Inc. v. Korte/Schwartz, Inc. (D4d1 Jun. 17, 2021) 2021 WL 2461132 (nonpub. opn.). After a jury trial by experts over business damages, the trial judge retired, and the defendant moved for new trial. A new judge denied the motion, and the Court of Appeal held that substantial evidence supported the verdict.

I offer some reasons why this may give short shrift to the standard on a motion for new trial.

On a Motion for New Trial, the Judge Is the "Thirteenth Juror" — So Doesn't This Affect the Standard of Review?

After losing at trial, the appellant moved for a new trial. But the new trial judge denied the motion. The Court of Appeal held the judge did not abuse its discretion because substantial evidence supported the verdict.

But wait, argued the appellant. A defendant "is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial. (People v. Robarge, supra, 41 Cal.2d at p. 633.) How can the appellant's right to a decision by the judge be respected when the judge only reviews the record for substantial evidence?

The court rejected this argument, holding the appellant was not entitled to more than substantial evidence review. First, the court held a different judge may decide a motion for new trial, citing People v. Moreda (2004) 118 Cal.App.4th 507, 517-518, holding that “a judge who did not personally hear testimony at trial may nevertheless make an adequate independent assessment of the evidence in the record in order to determine whether the weight of the evidence supports the jury's verdict."

Second, the court stated that, even on the merits, "we have reviewed the record and conclude substantial evidence supports the jury's damages award." "[W]e conclude [the appellant] has not shown the court abused its discretion by denying Schwartz's motion for a new trial. “[A]s we have already explained, substantial evidence supported the jury's verdict. Thus, we conclude that both [the judgment notwithstanding the verdict and new trial] motions were properly denied.” (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 514.)"

And again: because the court concluded there was "sufficiently substantial evidence to support the jury's verdict," the court stated "We therefore conclude the trial court did not abuse its discretion by denying Schwartz's motion for a new trial on damages."

Comment:

But this is not quite the correct standard of review when it comes to denials of new trial motions. At the trial court, the familiar standard of review in ruling on a motion for new trial is that the trial judge sits as a “‘thirteenth juror'” and “‘independently assess[es] the evidence supporting the verdict. '” (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503.) Thus, the trial court's role is not a role of "review" at all. The trial judge is not deciding whether the evidence is sufficient to support the judgment of the jurors, as in a motion for JNOV. No, the trial judge in ruling on a motion for new trial becomes a juror himself, and thus the judge — the thirteenth juror — must decide whether the evidence is sufficient to satisfy his own judgment.

On the other hand, it is true that the trial judge's role on a motion for new trial does "does not mean ... that the court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [Citations.]" (People v. Robarge, supra, 41 Cal.2d at p. 633.) In other words, the trial court "exercises a supervisory power over the verdict." (Id.)

But how can a trial judge exercise even this "supervisory power" to determine whether the evidence was "credible" when the trial judge was not present at trial? A new judge is powerless to enter a statement of decision. (Code Civ. Proc., § 635; Armstrong v. Picquelle (1984) 157 Cal.App.3d 122 at pp. 127-128 [allowing a new judge to enter judgment on a mere tentative decision would "wrest from the parties the right to have 'the judge who hears the evidence . . . decide the case' [citation], depriving them of their right to a full and fair trial."].) So how can a new judge "exercise[ ] supervisory power over the verdict"?

To sum up, a defendant's new trial motion may not be denied merely because the trial judge finds there is "substantial" evidence to support the judgment. Instead, the judge must be personally persuaded that the evidence is credible. If the judge is not personally persuaded concerning the credibility of the evidence, the new trial motion likely should be granted. The trial judge "should not permit a verdict to stand which he does not consider just even though there be some evidence to support it." (Parsell v. San Diego Consolidated G. & E. Co. (1941) 46 Cal.App.2d 212, 214.)

But it is not at all clear the new trial judge exercised this independent judgment. First, the new trial judge was at a disadvantage from the start, because that judge had not presided over the trial. Second, there is no discussion whether the trial judge gave any reasons for denying the new trial motion. Did the trial judge independently reweigh the evidence, and exercise independent judgment, as the judge is required to do on a new trial motion? If not, that alone was an abuse of discretion requiring reversal. (Failing to exercise discretion is an abuse of discretion.)

This trend in new trial motions is one that appears to break from precedent in related areas. This would be a good issue to raise in a petition for review to the California Supreme Court.

When a jury returns a large verdict, the unhappy defendant has to file a motion for new trial to reduce the verdict. (You can't just appeal directly, or else you'd waive the excessive-damages issue.) One way to argue the damages are excessive is to demonstrate the amount is the result of passion or prejudice. And one way to demonstrate that might be to compare verdicts in similar cases.

That is what the defendant-appellant tried after it was hit with a $25 million noneconomic verdict in the mesothelioma case of Phipps v. Copeland Corp. (D2d7 May 18, 2021) 278 Cal.Rptr 3d 688 (2021 WL 1973560). The appellant compiled 15 comparable cases into a report, and submitted that with a declaration in support of its motion for a new trial. But the trial court excluded the report as irrelevant and denied the motion. On appeal, the appellant argued the trial court erred in this ruling because verdicts in other cases were relevant.

Held: The compilation of other cases was not based on "the minutes of the court" under Code of Civil Procedure section 658, and thus could not be considered as a basis to reduce damages on a motion for new trial. Affirmed.

This analysis seems harsh, but it is based on the statutes. Do not rely on declarations in a new trial motion. Support your motion based on the court minutes.

New Trials May Be Granted Only Based on the Grounds Identified in the Statutes:

The Court of Appeal did not directly consider whether the appellant's compilation was relevant — the ground the trial court cited. Instead, the court explained that the compilation did not fall into one of the statutory grounds on which a new trial may be granted:

“Sections 657 and 658 establish seven grounds for a new trial, which fall into two groups. Motions seeking a new trial on the first four grounds [irregularity in the proceedings, misconduct of the jury, accident or surprise, and newly discovered evidence] ‘must be made upon affidavits’ .... [¶] In contrast, motions relying on the remaining three grounds [excessive or inadequate damages, insufficiency of the evidence, and error in law] ‘must be made on the minutes of the court.’ [Citation.] Here, ‘[t]he “minutes of the court” include the records of the proceedings entered by the judge or courtroom clerk, showing what action was taken and the date it was taken [citation] and may also include depositions and exhibits admitted into evidence and the trial transcript.’ ” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1192; see §§ 657, 658, 660.)

"In moving for a new trial on the ground of excessive damages, Copeland was required to do so “on the minutes of the court.” (§ 658.) The survey Copeland prepared and submitted in support of its motion were not among the minutes of the court. Therefore, the trial court could not consider that material. (See Maroney v. Iacobsohn (2015) 237 Cal.App.4th 473, 484-485 [“ ‘[b]ecause new trial motions are creatures of statute, “ ‘the procedural steps ... for making and determining such a motion are mandatory and must be strictly followed’ ” ’ ” ”]; People v. Southern Cal. Edison Co. (1976) 56 Cal.App.3d 593, 601 [“ ‘It is well established that the proceedings on a motion for new trial are strictly statutory, and the procedure for seeking relief must conform strictly to the statutory mandate.’ ”].)"

The Second District concluded that, for these reasons, the trial court "would have erred had it considered" the appellant's compilation.

Comment: I am not entirely persuaded by the court's approach here, simply because it appears as though the thrust of the compilation here was simply a discussion of other cases, most of which it would have been perfectly acceptable for the trial court to have considered in ruling on the new trial motion. True, the compilation included information from additional sources pulled from a deep Lexis-Nexis verdicts database search. And perhaps the compilation could have been excluded for that reason. But the holding here that it is improper to consider information about other cases — the kind of thing attorneys routinely put into their briefs — is a little unsettling.

A Second Comment: I was a little surprised the appellate court did not dispose of the excessive damages argument by finding it waived. The $25 million verdict was only half of what the plaintiff asked for at closing argument — the plaintiff asked the jury to award $50 million. Did the defendant object that $50 million (or $25 million) was excessive?) No. The defendant made no response to that, and did not argue that this amount would be improper. Instead, the defendant focused entirely on liability, and told the jury: “I'm not going to get into the issue of damages because I don't think you get there." [Obviously some tactical decisions were made here, which I suspect made appellate counsel very nervous.] While raising excessive damages in a new trial motion is a prerequisite to raising it on appeal, that does not mean that is sufficient. If the basis for the objection is clear during oral argument, the defendant should raise the objection at that time to avoid the possibility of waiver. 'One of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial.' [Citation.]" (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148.) Failure to object forfeits a claim of excessive damages based on the improper argument. (Saret-Cook v. Gilbert, Kelly, Crowley & Jennett (1999) 74 Cal.App.4th 1211, 1230.)

I find it noteworthy the court decided this case the way it did. The court apparently did as well, as it published the opinion. This signals a bigger uphill climb for defendants challenging large jury verdicts. This is an important reason to have appellate counsel present at trial.

When settling a case after a judgment, parties sometimes explore the possibility of a stipulated reversal of the judgment. This may be an attractive option to the losing party because it essentially takes a negative judgment off the books. Unfortunately, the burden to obtain a stipulated reversal is very difficult to meet, because Code of Civil Procedure section 128(a)(8) requires a showing that a stipulated reversal would not adversely affect nonparties, the public, or the public's trust resulting from judgment nullification by consent. (Hardesty v. Hinton & Affert (2004) 124 Cal.App.4th 999.

Ok, so the burden is high at the Court of Appeal if you want a stipulated reversal. What about getting a stipulated vacatur of the judgment at the trial court? Section 128(a)(8) only applies to the "appellate court." So the parties in Meridian Financial Services, Inc. v. Phan (D4d3 Aug. 10, 2021) 67 Cal.App.5th 657 [282 Cal.Rptr.3d 457, 67 Cal.App.5th 657], review filed (Sept. 17, 2021) stipulated for vacatur of large portions of the statement of decision and judgment as a condition of their settlement. The trial court went along with it.

But the judgment that was left over still had preclusive effect. So the exercise was largely pointless.

The facts involved a Ponzi scheme with enough complexity to dupe the appellant, a Stanford-educated economist, into falling for it. The appellant purportedly got two others to invest, secured by deeds of trust on their homes. The trial court voided these deeds as the product of unclean hands.

That created a problem for the appellant, who had another suit pending against Chicago Title. Unclean hands would give Chicago Title a righteous defense against the appellant's claims in the second suit. That's where the stipulation for vacatur came in: the appellant settled the first suit and got a stipulation to gut the unclean hands findings, hoping to neutralize Chicago Title's defense on that ground.

But Chicago Title still obtained summary judgment in the second suit, with the trial court finding the unclean hands established by issue preclusion. And the Court of Appeal affirmed, citing Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 936, and other cases supporting that the conclusion that "a judgment entered after trial and later vacated or subsumed by a dismissal as a condition of settlement remains “sufficiently firm” and thus final for purposes of issue preclusion."

True, the general rule is that rulings vacated on appeal are a “ ‘nullity.' ” But the cases the appellant cited for this proposition (Regents of University of California v. Public Employment Relations Bd. (1990) 220 Cal.App.3d 346, 356 and Grain Dealers Mutual Ins. Co. v. Marino (1988) 200 Cal.App.3d 1083, 1088-1089) involved reversal on the merits. These cases do not address the circumstance where the vacatur is entered pursuant to a settlement.

The court also noted a distinction between vacating the judgment, and vacating the decision on which the judgment was based. Importantly, the court noted that the trial judge was not informed about the appellant's other claims, and thus "the potential collateral consequences of vacating the decision's adverse findings." The court suggested it would have been improper for the trial court to vacate the judgment rather than merely the statement of decision without considering “ ‘the competing values of finality of judgment and right to relitigation of unreviewed disputes,' ” ... “because, otherwise, ‘any litigant dissatisfied with a trial court's findings would be able to have them wiped from the books.' ” (Ringsby Truck Lines, Inc. v. Western Conference of Teamsters (9th Cir. 1982) 686 F.2d 720, 721.)

The Upshot: Do not put a lot of stock in a stipulated reversal or vacatur of a judgment. It is very difficult to achieve in the Court of Appeal. And even if you can achieve it in the trial court, the effect may be less than you think.

This will surprise appellate attorneys. The Court of Appeal in Pettie v. Amazon.com, Inc. (D4d2 Sep. 21, 2021) 2021 WL 4270631 (no. E074241) (nonpub. opn.) recently reversed an order denying a motion to compel arbitration — but not because the trial court did not cite valid grounds to deny the motion. Instead, the majority reversed because the trial court failed to determine the threshold factual issue whether there existed an agreement to arbitrate. In a forceful dissent, Justice Slough noted: this was a denial of a motion. A denial of a motion must be affirmed on any available grounds.

Justice Slough went on to provide some useful appellate standards that practitioners will want to clip-and-save.

In Pettie, Amazon workers alleged they were misclassified as independent contractors. Amazon moved to compel arbitration under its electronic terms of service, but there was some doubt as to whether or how the workers agreed to those terms of service. The trial court skipped that issue and denied Amazon's motion on other legal grounds — exemption under the Federal Arbitration Act, and inapplicability of state law.

The Court of Appeal reversed. The majority reasoned "we need not consider any of these arguments [FAA exemption and CAA enforceability] at this stage because the trial court failed to make a threshold factual finding regarding the existence of an agreement to arbitrate." The majority cited Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1219-1220 (Toal), which held that “a court, before granting a petition to compel arbitration, must determine the factual issue of ‘the existence or validity of the arbitration agreement.’ ” (The dissent will emphasize Toal was reviewing an order granting arbitration, not denying it, a key distinction.)

The majority said the trial court's failure to decide this "threshold" question amounted to "abdicat[ing] its role as a trier of fact," with the result that "the case must be remanded to that court to resolve any factually disputed issues ....” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973 [reversing order denying petition to compel arbitration and remanding for determination of unresolved factual disputes].)

Dissent:

Justice Slough penned a strong dissent that begins: "The majority's decision ignores bedrock principles of appellate review and because of that pointlessly extends this dispute. I therefore respectfully dissent." Justice Slough sums up the majority's holding as "revers[ing] the trial judge's order because he denied the petition for the wrong reason," and then provides several reasons why the majority is wrong.

Appellate courts do not "sally forth each day looking for wrongs to right":

"First, courts decide cases as the parties frame and argue them. We typically avoid going out of our way to find issues the parties don't raise on appeal. “Courts are essentially passive instruments of government. They do not, or should not, sally forth each day looking for wrongs to right. They wait for cases to come to them, and when cases arise, courts normally decide only questions presented by the parties.” (United States v. Sineneng-Smith (2020) 140 S.Ct. 1575, 1579 [cleaned up].)"

(Note the deployment of the new case parenthetical "cleaned up.")

Justice Slough also notes that, when the court reverses on grounds not addressed in the briefs, the court is required to afford an opportunity to address them in supplemental briefing. (Gov. Code, § 68081.)

Courts may deny relief for any reason — and one is plenty:

Justice Slough's second argument is, in my view, the strongest, and one that all attorneys should bear in mind on appeal: "Second, courts are free to decide a case on any dispositive ground. It's simply not correct to say the trial judge was required to find the parties had entered an agreement to arbitrate before deciding the other issues in the appeal. ... It was completely within the discretion of the trial judge to assume there was a valid agreement but decide the case on the basis of the exemption under the FAA and the inapplicability of state law—both legal issues. ... It doesn't follow that to defeat a petition to compel arbitration an opposing party must obtain a ruling on the existence of an agreement to arbitrate before prevailing on the ground that the agreement isn't valid or is unenforceable on other grounds."

"Third—and relatedly—we review the trial judge's decision for the correctness of its result, not the correctness of its reasoning. ... Among other reasons, we follow this principle because “there can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct.” (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 610.) And absent prejudicial error, we are not permitted to reverse the trial judge under article VI, section 13 of the California Constitution."

Finally, Justice Slough raises the practical point that the effect of the majority's decision will be nothing more than a waste of the courts' and the parties' resources:

"So, what will happen when we remand this case to the trial court? I posit one of two things. Either the trial judge will find the parties did enter an agreement but reinstate his ruling on the same grounds set out in the order we are reversing. Or he'll find the parties didn't enter an agreement and deny the petition on two alternative grounds—lack of agreement and the grounds of his original order.

"In either event, the majority's decision in this case is likely to keep the parties mired in the same disputes for years. No doubt after the trial judge rules a second time, the parties will appeal the same issues again. I would decide them now. Perhaps the parties can take some comfort that they'll be able to economize by recycling in a subsequent appeal the briefs they prepared to no effect in this one."

Comment: Justice Slough seems to me correct, and clearly so, on all points. The majority's opinion is baffling.

Offering a sobering view of the litigation process, outside general counsel Lee Goldberg shares his litigation experience with Jeff Lewis and me, and how business owners should view it as a tool to achieve practical outcomes, not to vindicate a principle. Leave "truth, justice, and the American way" for Superman.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 17, available here.