The 60-day deadline to appeal begins to run once a party is served with a file-endorsed copy of the judgment that shows the date of service. Sounds simple, but the requirements for that document under California Rules of Court, rule 8.104, can be tricky to meet. A case in point is Construction Industry Force Account Council v. City of Huntington Park (D2d3 May 11, 2023 no. B316139) 2023 WL 3371723 (nonpub. opn.). The court ultimately agreed with the appellant that, although a file-endorsed copy was served, and although a certificate of mailing was also served, the two things were not the same document and so could not be combined to create a rule 8.104 triggering document. So the appeal was timely.
What happened was Construction Industry filed a petition for writ of mandamus asking the Superior Court to compel the city to abide by its competitive bidding ordinance. Instead of fight the lawsuit, the city rescinded the contract it had awarded to build an aquatic center, and put the project out for re-bidding. (Justice Brennan was right: “See how easy it is to be a city attorney?”)
Construction Industry amended its petition to acknowledge the city’s change of position. This time, Construction Industry alleged the city was not being transparent and was going to wind up giving the project to its favored bidder anyway. The trial court was unpersuaded and ruled that the new theories were either moot, unripe, or that the plaintiff lacked standing. So Construction Industry appealed.
Before affirming on the merits, the Court of Appeal had to decide whether it had jurisdiction to consider the appeal. Construction Industry waited longer than 60 days after the clerk served a file-stamped order. So under rule 8.104(a)(1)(A), the appeal appeared to be untimely.
But Construction Industry correctly noted that rule 8.104(a)(1)(A) applies only if the filed-endorsed copy of the judgment “show[s] the date [it] was served.” Here, the order and certificate of mailing were separate documents because the order was on a one-page form designated “LACIV 140” on the bottom, whereas the certificate of mailing does not have the same designation, and the two documents are not paginated consecutively.
The operative precedent on this point is Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894 (Alan)), which the court analyzed extensively. (See also here.) Alan noted that rule 8.104 “requires a single document…that is sufficient in itself to satisfy all of the rule's conditions, including the requirement that the document itself show the date on which it was mailed.” (Alan, supra, 40 Cal.4th at p. 905.) Alan contemplates that the document “can have multiple pages,” but that “the rule does not require litigants to glean the required information from multiple documents or to guess, at their peril, whether such documents in combination trigger the duty to file a notice of appeal. ‘Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.’ ” (Ibid.)
Also relevant is the case of M'Guinness v. Johnson (2015) 243 Cal.App.4th 602, where the clerk prepared a corrected proof of service that reflected that the clerk mailed copies of a file-stamped order. (Id. at p. 610.) But the order “did not ‘show the date [it] was served,’ ” and so the court “conclude[d] the file-endorsed copy of the order cannot be read in conjunction with the separate document—the ‘corrected proof of service’—to satisfy the requirements of [former] rule 8.104(a)(1)(A).” (Id. at p. 612.)
Following this analysis, the court concluded that the service of the file-stamped order did not trigger the 60-day appellate deadline. The order “does not mention the certificate of mailing or otherwise appear to incorporate it. And the record does not establish that the certificate of mailing was attached to the order of dismissal, even assuming they were mailed together in the same envelope to counsel for the parties. Thus, following Alan and M'Guinness, and with due regard for the “ ‘the well-established policy, based on the remedial character of the right to appeal, of according that right in doubtful cases “when such can be accomplished without doing violence to applicable rules” ’ ” (Alan, supra, 40 Cal.4th at p. 901), we conclude that the time for CIFAC to file its notice of appeal was not triggered by the court clerk's mailing of a filed-endorsed copy of the order of dismissal.”
Takeaway: There are three important things to remember about rule 8.104 and when the 60-day appellate deadline applies:
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Opioids, takings, terrorism—these are at the core of a few of the cases that appellate attorney Carl Cecere is handling. After deciding to leave BigLaw, Carl found that a combination of Twitter and lots of travel with the purpose of meeting interesting colleagues has fueled a pipeline of provocative cases into his solo practice.
We discuss:
Carl Cecere’s LinkedIn profile, and Twitter feed.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Announcer 0:03
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
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Tim Kowal 1:00
All right and today we are pleased to welcome to the show Carlos de serie. He is a appellate lawyer who has practiced before the United States Supreme Court and many other circuit courts of appeals. Carl has written for the Harvard Journal of Law and Public Policy SCOTUS blog, the Constitution daily, the blog of the National Constitution Center, Carl is a member of the legal advisory board for the Constitutional Sources Project, a nonpartisan not for profit organization devoted to increasing understanding of United States constitutional history. Carl, you may know is on appellate Twitter as one of the rarefied group of appellate attorneys who follow all sorts of things like the case that the new case about the Dormant Commerce Clause that you were looking at me funny because I had not heard about it and totally digested all the divergent views and doctrines of the Dormant Commerce Clause. But Carl Siri is one such attorney who follows the wins and emerging trends of the United States Supreme Court and the various Circuit Courts of Appeal. We thought it would be great to invite him on the show to talk about his practice, which sounds very interesting to me. Sometimes I'm just, you know, down at, you know, doing the grunt work on money cases. You know, Jeff, you and I work on these money cases, we don't get to work on a lot of interesting public interest cases like Carl does. Carl also clerked for Mary Lou Robinson of the Northern District of Texas. I thought that's another point that we could discuss because Jeff, you and I sometimes get down in the dumps that we don't have clerkship experience. And we'd like to ask those with clerkships. You know why they think there's so much better than us.
Jeff Lewis 2:30
Hashtag clerk envy. Yes,
Tim Kowal 2:33
Carl, welcome to the podcast. And why do you think you're better than we are?
Carl Cecere 2:36
Well, thank you so much, Tim, for that really kind introduction. And it's really great to be here. And yeah, we're definitely better. I mean, we've sat there with the judge, we've digested the coffee in the courtroom, we understand what GSA carpet feels like with no shoes on and those late nights preparing for trial. And that makes a huge difference in how we approach cases, compared to mere mortals.
Tim Kowal 3:02
It's those little things that perspective we will never have. Yeah, that's right. That's just carpet under our toes.
Carl Cecere 3:09
The coolest thing about clerking I gotta say is, especially in the older, like, we were in a really old courthouse, it was a 1920s male, really big US postal office that was converted into a court house. And they had these really cool old shelves, like the old lawyer bookcases with the glass. Partition nesters. Yeah, yeah, you pull it out. It's really cool. I just loved it. I just love like looking up the things in the books and opening up the cases. And it's really neat.
Tim Kowal 3:39
I really do lawyers will ask you what are books? What? Their actual
Carl Cecere 3:43
books at the time, and you actually read them? You pull them out? You have a little stack of them beside you. But yeah, you know, I got I do have to say it really was a great experience. Being a clerk, I think, and I really wish I'd been able to do it at an appellate court level, I tried and I failed. So I'm kind of a mere mortal, as well. But you know, it really is cool, I think to be at a judge's elbow and just work through actually deciding cases. Because, you know, they their perspective is a little bit different than a lawyers, lawyers always trying to lob stuff at the court and wonder what's going to stick and it's nice to be on the other end and be like, well, this is what convinced this particular judge why we ought to go this particular way. And in a hard case, that's kind of an interesting, really insight. And I mean, it was also wonderful to get to know judge Robinson, who was she was she was one of the first women judges in Texas. She joined the bench when she couldn't vote her own property. That's how long she had been on the bench. Oh, you're kidding. Texas. Yeah, that gives you Carter viral bench before that was Texas appellate judge. And so she just seen everything she knew everybody in the you know, in the Texas legal community and had opinions on everything and she was one of the most brilliant people I've ever met was really cool. Just to get to know her and her staff and really get to spend some time doing that.
Tim Kowal 5:02
Yeah, I can't even imagine what kind of perspective that must have given her as a judge on some of the basic principles of our judicial system and you know, a republican form of government equal rights and everything when she's obviously reached a rarefied state where she's a federal judge, but at that time, still could not vote her own property. He wasn't a
Carl Cecere 5:18
federal judge when she couldn't. But yeah, she joined the bench when she was 28. And yes, back when the laws in Texas were pretty backwards still. So yeah, she had a really wild perspective. And she was one of the most fearless people I've ever met, because she had busted through every barrier that was placed in front of her. And she had been practicing. You know, when she was a lawyer, she practiced in front of virtually all male judges, and with male co counsel and male opponents. She was she joined the bench. Every one of the people who practice in front of her was a man and it was a whole, uh, you know, it was a whole different scene. It was a whole different perspective. Yeah, to be able to, to assert herself in that environment. And she certainly did. Yeah, it was, it was really cool.
Tim Kowal 6:03
Yeah, Mary Lou Robinson yet I might have to do some my own background research on her that sounds like just a very illuminating and inspiring person she passed away in January of 2019. Sounds like a very interesting clerkship. Well, let's make sure to bookmark that. And we'll we'll touch on some of that experience. But Carl, would you tell us a little bit more about your practice? What kind of cases you take on? And you know, don't leave out your experience in the US Supreme Court?
Carl Cecere 6:27
So yeah, I mean, you know, in the Division of appellate world, I kind of think of the pure appellate specialists and the appellate litigators, the ones who spend a lot of time in the trial court kind of preserving issues and doing jury charges and stuff. I'm probably more on the traditional realm. I don't spend a ton of time in trial courts. I'm mainly doing appeals, and I kind of do them all over I do Texas State appeals. I've done appeals in other states. I've done a lot of work at the US at the US Circuit Courts. And I also do work at the US Supreme Court.
Tim Kowal 6:58
I know you're basically you're based in Dallas, Texas, Carl, correct. And I'm based in Dallas, and you're working in courts outside of Texas, does that get nerve racking? You know, do you have to really go to school and all the local rules and local local rules in the case in the courts that you're working in?
Carl Cecere 7:14
can be a little bit nerve racking. But I've actually found that you know, you're talking about Twitter, the Twitter verses are really phenomenal resource when you're practicing in one jurisdiction some because you can always talk to pretty much any you know, somebody who's practices regularly in that core, whenever you find yourself in a new place. So it's pretty easy to avoid most of the pitfalls that wouldn't appear on the page. It's interesting
Tim Kowal 7:37
to make use of Twitter as part of your normal course, if you're practicing in a new state and you well, you put out an APB on Twitter, what use hashtag appellate Twitter or what how do you go about it?
Carl Cecere 7:48
Well, I mean, I've gotten a pretty good sense of where people are located just by talking to people over the years. So I usually know you know from in Nevada, I know who to talk to. And if I'm in Arizona, I know how to talk to you. If I'm in some completely random jurisdiction, if I'm in Alaska, I might throw out an APB to people but you know, otherwise, I kind of have a sense of who I know and who I trust in those different places. And it makes a huge difference to have like a human touch in a different place. And I've also like, brought people on as CO counsel or local counsel, and in different cases, as well, because then that can be a great resource for that. And that's one of the reasons I can bring my practice so easily outside of Texas is that I can, you know, meet a lawyer in in New York or in DC or in Oregon, in minutes, and we can be talking about a case, just off the bat, I can just be sitting on my Duff in Dallas, Ian's barbecue, it is best of all worlds that way.
Tim Kowal 8:41
Yeah. All right. Well, I interrupted you. Tell us about some of the cases that you're working on, or cases you have worked on, you know, some formative experiences or war stories, maybe.
Carl Cecere 8:51
So what one of the cases I'm working on that's really interesting right now is the Purdue bankruptcy case. And then Purdue is the producer of Oxycontin, right, and one of the real driving forces behind the the opioid addiction in the United States. And as it turns out, in other places in the world, as well. So I actually represent a group of Canadian municipalities and First Nations, which are, you know, the equivalent of native tribes in the United States that are challenging the American bankruptcy of Purdue. And what it means is that a case is interesting is not only because of the gigantic size of the harm that Purdue did, but also because, you know, one of the real trends right now in big mass torts cases, is to try and use the bankruptcy laws to shield people who don't go into bankruptcy. And that's been a big battle. We've been fighting in a number of different jurisdictions and we're definitely doing that in in Purdue because Purdue is owned by the Sackler family. Purdue is a name they just purchased from somebody else when they bought the company, and the Sackler family tried to in something in their bankruptcy plan in the pre bankruptcy plan that would shield them from any liability from anyone ever asserting a claim against them for opioid related harms, even though the Sackler family made all the decisions. What Yeah, which is normally
Jeff Lewis 10:13
fine in bankruptcy when you have a debtor who's fully disclosing and is subject to bankruptcy rules protect somebody who's essentially a stranger to the process. Tim, you and I covered on this in this podcast, an appeal involving a settlement that ultimately was rejected. Carl, are you involved in that litigation in terms of a settlement that was rejected and then was bouncing back and forth to the Court of Appeal in the bankruptcy court or by confusing cases,
Carl Cecere 10:37
we have not been offered, nor have we been able to have an opportunity for a settlement. And okay, in Purdue, the state claimants in the case settled during the course of our appeal. But now, the only appellants are a papeles, we won in the District Court. So Purdue is now pursuing this on appeal on the Second Circuit, the only APA leaves in the case R Us and the US Trustee. So we have not had the opportunity to sell it would be great if we did. But that's part of the problem, too, is that you're right, sometimes complete strangers to the bankruptcy are given some kind of protection, because they don't want people to interrupt the process of, you know, distributing funds and things like that. But the Sacklers are unique in that they basically drove this company into bankruptcy, they shipped a bunch of the assets from Purdue offshore into accounts in the key and the Canary Islands, you don't even know what that is basically beyond the reach of any creditor and then just sort of said, well, here's what you're left with. We want immunity for this as well. So it's a really, really strange and unique set of circumstances, we think, really an abuse of the bankruptcy process. And it's and it's kind of a piece of, of cases that are going on around the country, you know, you've been following it at all, Johnson and Johnson tried to spin off unit and bring it into bankruptcy so that it which is one of the biggest and most solvent, long standing companies in the world, because they outside of bankruptcy, but then sheds liability for talc products into bankruptcy and then kind of cabin those losses. And then we've seen three of them with they've tried to use a bankruptcy state to prevent litigation against them over there.
Tim Kowal 12:14
Those are the trends that you referred to of large companies trying to use the bankruptcy protections as a shield for their for liability. Now, in following this trend, do you follow bankruptcy law? Is this one of your areas of practice? Are you able to just come up to speed when you got involved in this case,
Carl Cecere 12:29
I've been lucky enough to just experience a number of bankruptcy related appeals over time. So I was able to jump into Purdue pretty well. And it is not an area of the law, you want to approach kind of randomly, because there's so much procedure to understand. And you know, it's kind of like there's a bankruptcy overlay for every element that you'd have in a normal appeal. In fact, there are, you know, there are even bankruptcy specific mootness doctrines that aren't even really mootness at all, but they kind of float around when there's also kind of an attitude amongst the courts of appeals. They don't love to touch bankruptcy cases, because of their complexity. And they're always kind of afraid of doing something wrong. So bankruptcy law has kind of been allowed to develop without a lot of oversight from the appellate courts, and even from the from courts. So there's a lot of things that you do in bankruptcy law. And it's like you read the code, and like, that's not really in the code. And then the bankruptcy lawyers will just tell you what, that's just how we do it and like, but it's not really in the bankruptcy code. They'll be like, oh, yeah, like, I don't know, you know, what, the new Supreme Court majority, we're gonna go back to reading the code a lot more than we used. And I actually think that's going to be a good thing, although I think it'll probably, you know, in things like this, you know, third party releases or bankruptcy spin offs, it's probably at least some reforms, the bankruptcy code when the court actually does approach these things, because it really has drifted a little bit away from the text.
Jeff Lewis 13:51
Yeah, you know, a bankruptcy courts are where the equitable powers of a court seem to have their greatest influence more so than civil or family or probate equity in terms of the debtor and their creditors and settlement. And it's like the Wild West. And I don't know if you've been involved in family law appeals, but it's kind of like the Wild West in terms of judges making rulings here and there. And I do concur that it is time for the pendulum to swing, swing back a little bit.
Carl Cecere 14:15
Yeah, I really do hope it will happen. And I really hope that the court I mean, we'll see, you know, there's a decent chance that the Purdue case ends up before the Supreme Court one way or the other, depending on how it comes out. And, you know, I would assume j&j is trying to do their shenanigans again. So it'd be nice if one of these cases that are going around right now ended up in the courts, the court could kind of say, Yeah, we're gonna read the court burn and read the code a little differently than we have in the past. And they'll get that message, I think, yeah. Now, Carl,
Tim Kowal 14:43
how do you get brought into these kinds of cases involving national significance involving players with pockets billions of dollars deep? These are waters that a lot of us would like to splash in from time to time, but you know, that's it's high profile cases, and sometimes other public interest for Whether they're high profile or not, sometimes there is some ambiguity about how the attorney is supposed to get his pay day.
Carl Cecere 15:06
Yeah, I mean, I think it really helps me a lot that I'm a solo. And if a case that comes in, that's a little strange, I can, you know, have a meeting of the partners and come to a decision really quickly about whether or not to take something down, a lot of other people might not, might not touch. So I think the basic flexibility comes from there. And it's allowed me to do a lot of things that I wouldn't been able to do in a different environment, I think, you know,
Tim Kowal 15:30
but but on the other line, when you're the solo, sometimes you don't get approached by the billion dollar companies, or buy the cases that have, you know, hundreds of millions at stake.
Carl Cecere 15:40
That is true. And, you know, it can be kind of a tricky bit to get in front of people and to kind of establish your bonafides, when you don't have a name that people recognize, but what I do a lot of the time, I mean, it's kind of my basic practice development tip is, I travel a lot, I go to where the cases are, you know, I sit in a great jurisdiction for appellate work, you know, they're some of the best appellate lawyers in the world are right here in Texas. And we've got a really well developed appellate bar, so that we have that, and I can take advantage of that. But in developing the practice the way I wanted it to, since I kind of had a stable base to build on, I was like, well, let's go get some other cases. And what I've always done is I've just spent, you know, several weeks a year in New York, or in DC, or in LA, just getting to know lawyers and getting them to know that I'm out there. And again, you know, part of that is from people me on Twitter, I mean, people approach Twitter in different ways. But to me, it's been a phenomenal practice development tool, because I meet people on Twitter, and then I go meet them in real life. And then you know, from there, it's pretty easy to start working on cases together.
Tim Kowal 16:48
That's interesting. So that's kind of a nice, hybrid, classical way of, of networking. And the new technological way of networking is, you know, just live on Twitter, you know, sending tweets out and having a whole bunch of networking friends that you've never met before you actually go out and what attended, you seek out large layer legal conferences, how do you make a point to meet the people that you meet online,
Carl Cecere 17:10
kind of all of the above, there are some conferences I really like to go to every year. And I'm, you know, after you go a few times, you kind of know a few people and you find out the ways to meet the right, the right people. And but part of what I like to do is I really like to go and just spend a week in town, and just go and meet whoever I can, I mean, people my level people who are more senior to me, people who might have work, people, like organizations or trade associations that, you know, might send me a little bit of work, I'll just do it for a week, you know, just nonstop. I mean, an ideal day is to go breakfast, coffee, lunch, coffee, dinner, drinks, you know, with different people, and just meet as many people as I can. And I, I'm not super targeted about how I do it. I just kind of meet whomever is interesting, and what I liked with their practices about and we figure out ways we can, we can collaborate. And you know, it doesn't often happen, but frequently happens that some really cool cases come out of those of those meetings.
Tim Kowal 18:11
Yeah, you came from the world of big law. And now you're a solo. Do you still draw on the context and on the context and cache? I might say from your time working in big law? Yeah,
Carl Cecere 18:23
yeah. I was really blessed with the opportunity to work at Aiken GM at a really awesome time in Aiken gumps development, because they had just hired Tom Goldstein. He runs SCOTUS blog. He recently retired from the practices Supreme Court law. But he was amazing. And he was also extremely democratic. He was really willing and able and, you know, offered to work with everybody in the firm who wanted to work on Supreme Court cases. And I bugged him weekly, to work on things. So he gave me several cases. In fact, one of the cases that I got to work on my first Supreme Court case was Heller, counsel to the District of Columbia and Heller. So I got my feet wet really fast. And my relationship with Tom and the people at Thomas firm, have continued ever since then. And that was my foothold into Supreme Court practice. So from from Tom, I met a lot of other people. He introduced me to people he got me in on cases that got me involved in plaintiffs bars and securities bars all over the case all over the country. So just from Tom, and Tom's wife, and Kevin Russell was his partner and his wife is Amy, how just meeting them. There's just been open doors all over the place. And I frequently still get calls from people that I can go on for, you know, they don't have their own appellate apartment in Dallas. So me I get calls on appeals from them quite often. And it's been a tremendous resource. I mean, it's, it's great, you know, and I tell people, you know, go to big firms that they should really invest in the community of people that they have. They're not only while they're there, but because when they leave, that doesn't get community that doesn't go away. You know, if you leave on good terms with people and you keep up with them. I mean, it can be really huge resources for you
Tim Kowal 20:01
never forever. Have you spotted any trends in the world and culture a big law in the last few years and things changed as compared to the time when you are at Akin Gump?
Carl Cecere 20:10
I think the practice of law is completely transformed. From the time I was practicing in big law. I mean, how long ago was that? So I was I think I left in like 2011 2012.
Tim Kowal 20:24
Okay, so we're talking about last last 10 years, you think there's been a seismic change and big loss?
Carl Cecere 20:28
seismic shift? I mean, I think not just one, I think you can look at several different ones. I mean, we had libraries, you know, we had,
Tim Kowal 20:36
what are the Cloud libraries now and the work stalls?
Carl Cecere 20:39
Yeah. And I actually went to a can go moved offices and didn't bring their library with them. They didn't bring their files with them. So now they have these, like, really random collaborative spaces in the middle of the always because they don't quite know what to put the place where you would put those sorts of things like have a chat JpT portal? Yeah. But you know, I think that was a big shift was that, you know, number one, just the move to a paperless office was a huge change. And, you know, not doing huge document reviews is kind of like the basis of an Associates life, that's a big change. I think now, we're experiencing a lot of opportunities to compete against big law, because it's gotten so expensive, you know, you're talking about, for an average partner at a law firm to be billing $2,000 an hour, not even like the best in their field, just like a guy, that's pretty easy to compete with on a numbers basis, if you're pretty good. And so it's created a lot of room, I think, to grow underneath the big low model, and sin to say, well, you know, you don't, you probably don't need, that guy is going to cost like, twice, three times, four times as much as me. And I'll do as good a job if not better. And that's been another thing that's been really great about Twitter is that, you know, I put my briefs up there, and people will talk about them. And I've gained a reputation as a good as a good writer, and as a good advocate through that. And so I've got a pretty decent reputation around the country, that when I meet with people, like if you're Carl, you, you know, you're not some random name, or known quantity, and you're associated with quality, which I think is really cool. And that was surprising. That was not what I intended to do. But it turned out to be really great.
Jeff Lewis 22:21
Let's talk about brief writing for a second, as part of my extensive due diligence to prepare for today's interview, I went back two days on Twitter. And I love this post. He say the main character of your opening brief, should be the court below. And the main character of your reply brief, should be your opponent. That's fantastic. Can you expand on that?
Carl Cecere 22:40
Well, as you can tell one thing, mostly represented palettes. That's usually the ones that hire the lawyer outside the firm, when they won, and everything everybody's happy, then they'll usually take care of it themselves. But that's part of it. And yeah, I mean, I really do believe that I really do believe that not, you know, you really should engage with if you're lucky enough to have a pinion that you are appealing. And not just some generic court order that doesn't describe the reasons why that's hard for me to engage with. Because you want to say not only why you're right, but you want to put it in a context of like, I'm considering the arguments against my position. I'm considering what the trial court said, and I'm not trying to paint the trial court as a bad guy. I'm just trying to say this is what led the trial court to make its decision rejecting us. And I just don't think that that's right. You know, I think that's really important thing to do. I think that's sometimes something that a lot of appellate lawyers are reluctant to do. They don't want to seem mean, or not nice to the trial court. So they try to pretend that the trial court's decision never really like happened. And it makes for this very abstract and hard to follow Legal Brief, you know, you want to talk about what people did and what they said and what, why they said it and why what they said wasn't the right thing, and not just kind of floating around above it, try not to create any kind of controversy. And then, you know, that shifts when you have a brief from the other side, right? Because like you have with the trial court, did you deal with that? You say what they did? And then the Pelleas reaction to what you did is really important. I mean, do they fall back from what the trial court did that's significant if they're not willing to fully defend exactly what the trial court said? Are they expanding upon it? Are they fair? Are they finding a reason to dance around what the trial court did? And I'm gonna make sure to point that out every time it really pushed them on that and say, and then, you know, the things that they don't address in my brief, I'm gonna say, have they conceded that I mean, that's they don't contest that this happened. So it sort of fills out and like, it's sort of like every time they cede ground, I want to make sure that I cover the ground that they've seen, and I want to tell them what to do. And again, it's not really to be make them the bad guy. I mean, I guess the opposing counsel is kind of the bad guy, but I don't Trying to make them seem stupid. I just tried to say like, they're not fighting me here. So they're sort of conceding this and score it wrong here. They're not even comfortable defending with the trial court did whenever you're in federal district court, and those district court's opinions are going to be, you know, put into the federal register into the federal supplement. They're kind of the law. So you know, the Court of Appeals doesn't want the bad law to be sitting out there. And then when you go to the next level, whenever you're in front of a Supreme Court, whether it's a state supreme court or the US Supreme Court, they don't want bad law out there on the books. So when the other side won't defend what the trial court did, you're almost 60 70% way that reversal. Right? And it's like, they won't defend it. They're trying to create some new rationale, it's like, well, that means the law on the books is not right. You know, and that's, that's a problem.
Jeff Lewis 25:45
Yeah. Interesting. So if the main character of the opening brief is the court below main character, your primary care opponent, when you represent the winner, the APA Li, or California will respond on it is the main character of the deferential standard of review.
Carl Cecere 25:59
Now, it probably still make it the core, and the lower court would still probably say, oh, that judge was so good. And he was so smart. And he really well, he did a great job. And he did everything that that nasty appellant, the saying about those guys is it's just not fair is not justified and does not support it. You know, it's like, that's what I like to do. I definitely like to lean on the standard review, to the extent I can, as well. But to me, brief reading is always about stearic. Storytelling. So it's about what real people do in the real world. And it's not about abstract principles of
Jeff Lewis 26:31
whatever. Have you used any of the products that are coming out there in terms of AI, it's just like clear, brief and type laws and other LP with brief writing.
Carl Cecere 26:40
I have not really gotten into that yet. I've played around a little with chat GPT enough to know that it's going to be a really powerful tool, but maybe not yet. But I do think that AI is going to make a big difference, especially for small, firm lawyers, and especially for lawyers who work on the plaintiff side, because, you know, it's going to be a real challenge to the billable hour at the end of the day. And so the big law model, which is built on building a ton of hours on every little thing? Well, I think that AI is showing the great capability to do a lot of what a junior associate once did. And that means that a solo can level up and big law firms going to be real top heavy in their billing and plaintiff when you don't necessarily have to tie yourself to the billable hour like me, you know, I do a mix of billable work and contingency work. I mean, it's a real advantage to be able to play against people were spending hundreds and hundreds of hours doing the same thing that you're doing for a lot less money, you know, time. Interesting.
Tim Kowal 27:40
Yeah, Carl, I had one other question before we move completely off the topic, brief writing and you mentioned about I think we adjust segued into advocacy in the Supreme Court, whether it's a Federal Supreme Court or a state Supreme Court, these are courts of last resort. And really, they're not courts of error in the sense that they don't care about the parties, right. They only care about making sure that the precedent in that jurisdiction is is uniform, and it espouses the doctrine that the at that particular Supreme Court prefers. And so I wonder if the brief writing and approach to advocacy changes, in your view when you are appearing in front of a Supreme Court, which is not a court of error? Because, you know, again, your does the storytelling change, because, again, the Supreme Court, you can't count on the Supreme Court carrying but if a particular plaintiff was aggrieved, you know, for example, if you'd like a neighbor dispute, a tree view dispute or something, the Supreme Court is not there to tell you whether you have a right to a tree, it's only there to tell you whether 330 million people across the country have a right to a tree. So it's a different type of focus of inquiry.
Carl Cecere 28:43
I think it's definitely a mindset that you have to approach these kinds of cases with when you're in front of the Supreme Court or any state court of last resort. Because of that, you're right, you know, you have to approach it from let's talk about what the law is. And let's talk about whether it's right or it's headed in the right direction. I mean, the law becomes more of a character, rather than like a prop, you know, that you apply and put here. This is how this is the law. When you're in front of those discretionary courts of discretionary review, you got to do a lot more of that. But at the same time, I think it's a little bit overplayed to say that they don't care about the facts. I mean, they're still human beings. And there's no secret in the Supreme Court bar that if they're going to, you know, if an advocacy organization wants to present an issue to the court, they're going to find a case with sympathetic facts, they're not going to just take some random case with with the courts gonna be like, Well, I just don't really care if they win or lose. They try to push the justices emotional buttons because they have emotional buttons that still can be pushed. And so I think that's kind of an overlooked element of that level of advocacy is you do need to think about not assaulting them by focusing too much on the fast living like this just is error correction. You got to present it to them in a way that isn't just your error correction, but you also need to present it with a human face in the human touch and say real people are being affected by this, I think it creates a lot of new opportunities for advocacy. But it also kind of narrows the range of advocacy that you can have, because especially the US Supreme Court, you got nine people who have a very set map that they apply to the law, you know, their views on a lot of things are fixed and not in a closed minded way. They've seen issues like this, you know, in one way or another, they touch 8000 petitions a year and decide whether to take a case. They know what they're interested in, they know what they're not interested in. They know what their view of the law is in any number of different areas. And so you have to accommodate that. And some of the justices are just not going to be winnable on your issue. Sometimes, you know, you will know that. Well, Justice Gorsuch is not a get on this case, you know, maybe justice Cavanaugh is again, but not justice Gorsuch, he's written on it. He's talked about it, you know, you just know he's close. So you're searching for a kind of a different thing than you are in a appellate panel and the panel panel, you don't even know who you're going to get, you don't know what is going to happen. But with the Supreme Court, you got nine people, you know exactly where you're going to get, you have only limited shots, to shoot with them. And you're like, well, or maybe these two or three avenues to a wind. But you've got to go through very nine people's very fixed views. Yeah. So in a way, it's a lot more fun to be at the court of appeals level, because the opportunities for advocacy are kind of broader, you have to be a lot more volume or focus when yours is pretty important.
Tim Kowal 31:31
Yeah. And speaking of that, the fact that most of us attorneys, and especially those who pay attention, can get a pretty good sense of whether they can count the votes on their case and the US Supreme Court. And maybe that would be a segue to a question I wanted to ask you about Judge Sutton of the Fifth Circuit, has said that litigants are considered directing their constitutional challenges in state courts using state constitutional provisions, suggesting that there may be more playing the joints. And you might not know that, you know, maybe they use similar language as used in the federal constitution. But the Supreme Court of that state can is that liberty to interpret it differently, then has the United States Supreme Court, or you know, Judge Sutton is a federal judge? And, you know, the the feds are always trying to find a way to get us to file in state court instead of federal court, so that you could take that cynical view as well.
Carl Cecere 32:18
Well, you know, I think Judge Sutton's. Right. And I think he, you know, he wrote a whole book on state constitutions.
Tim Kowal 32:24
Yeah, 50 imperfect solutions, I think it was called. Yeah, and
Carl Cecere 32:27
it seems like there are a lot of, you know, the state tradition of drafting constitutions, they seemed like they borrowed a lot from each other. So you can learn a little bit about the law in one state and apply it to the state constitutions and other state. And I think he's totally right. A lot of you know, for example, just not I don't want to take a controversial topic, just because but it's useful. You know, in the abortion context, even if Dobbs settles a certain question on the federal level, there are a lot of protections under state constitutions that might be interpreted to cover the same issue. There are a lot of constitutions that explicitly protect a right of privacy, you know, in one form or another. And so you're, you're really free to make a lot of arguments about abortion, that you that are now foreclosed in the federal court, and you can do in the state court, you can also pass a law in the state court, Lina, that's gonna apply to state court a lot easier, then you're gonna get anything through through Congress. So you also inform, you know, you can also change the law you're applying that's a big deal. We had a case that I thought really illustrate the distinction really well, I was involved in a case early in my career, where we were challenging the state funding mechanism for funding public schools. And there are a lot of state constitutions that protect the right of public education as a constitutional right under the state constitution. And so the law in the state courts has gone a completely different direction, the federal courts, because the federal court said, you just can't say that you're denied a right of equal protection under the federal constitution, just because you're a poor school district gets way less money than the rich school district. But you can under the state constitution, that's because the the state constitutions provide a baseline. Right, you know, it's a, it's not just a kind of an abstract sense of equality. It is you have a right to an adequate education under the state constitution. And that changes a great deal about how you litigate those kinds of cases. And there's a whole body of case law that talks about how the federal and state approaches diverge.
Tim Kowal 34:24
Yeah. And I misspoke a moment ago, Chief Judge Jeffrey Sutton as Chief Judge of the sixth district.
Carl Cecere 34:30
I didn't want to step on up. Yeah.
Tim Kowal 34:32
Thank you, Jeff. Should we talk about oral argument in briefing tips or you want to talk about the Ahsoka law case? Yes, choice, Carl.
Carl Cecere 34:41
Well, your question,
Tim Kowal 34:42
you got this case in the Second Circuit, arising out of the PLOS support of terrorism in the Ahsoka law case, maybe give our audience a little bit of a primer on that.
Carl Cecere 34:52
So I don't represent the parties. In this case. I've just written a series of amicus briefs. It's just one area of focus that I You have developed is anti terrorism cases, civil cases, against sponsors of terror banks, you know, PLO, Iran. I've done a number of different cases involving those kinds of issues. It's just something that I find interesting. It compels me, I really liked the people who tend to be involved in those cases. So I've got to know a lot of them.
Tim Kowal 35:19
The attorneys, I assume you mean, yeah. The attorney well, and
Carl Cecere 35:22
the clients? I mean, I got to know some of that people personally involved in these things.
Tim Kowal 35:26
What is this case about? I wasn't aware of the Tokelau case until I was reading up on your work.
Carl Cecere 35:30
So the Socolow case has been a really interesting case has been going on, there's always been a challenge in getting jurisdiction over warned sponsors of terror in United States courts, in particular, the PLO, the Palestine Liberation Organization, the PA, the Palestinian Authority, which governs Palestine, it's really hard to, to bring them into court because they don't fit necessarily in all the boxes, you know, they don't necessarily fit under the FISA, the Foreign Sovereign Immunities Act. And so it's kind of a challenge to get jurisdiction over them. And then as the Supreme Court got more interested in and kind of curtail the options for personal jurisdiction, it's become a real challenge to get these people in court. So the Socolow case arises from a kind of back and forth that's been going on between the Supreme Court, second circuit and Congress about how to deal with this problem. It used to be that getting jurisdiction over the Palestinian Authority was fine under very loose doctrines of personal jurisdiction, you know, the old International Shoe kind of framework applied to foreign sovereigns. But then when the Supreme Court started clamping down on personal jurisdiction, that became non available, so the Second Circuit started dismissing cases against the policy authority. And we've got a couple of different ones involved. Congress responded by passing something called the anti terrorism clarification act, this is back in 2018. That made it possible to get jurisdiction over the PLO in the PA, if they either number one, continue to sponsor acts of terrorism or give payments to terrorists sponsors, because you know, the PA pays people martyrs benefits and things like that, or people who are in jail for committing acts of terrorism, sometimes they get money. And so we said, cease doing that, if you want to avoid jurisdiction or cease contacts in the state of New York. And you know, when the PA has a diplomatic mission at the UN.
Tim Kowal 37:29
So this was just so I understand that the personal jurisdiction question, or the scope of personal jurisdiction was expanded by congressional legislation.
Carl Cecere 37:38
Yeah, they passed it. They couldn't change the the constitutional limitations of jurisdiction under specific or general jurisdiction. But what they did was they moved into jurisdiction by consent. They said, basically, if you're going to continue to do things you will be deemed to have consented to jurisdiction the United States.
Tim Kowal 37:53
Oh, interesting. So the legislation created a presumption of consent,
Carl Cecere 37:57
yes. And said, you know, if you're gonna come to New York, and you're going to raise money in New York, and you're going to do a bunch of fundraisers there, and you're going to have offices there, then you're going to be deemed to have consented jurisdiction.
Tim Kowal 38:09
That seems like an interesting, I don't mean this as a pejorative what I say and run around, but a project put out a way to solve that issue. Yeah, a clever way to solve that issue of the limits of personal jurisdiction, and to make a statutory presumption of consent to the jurisdiction of the court. So how is that playing out? Is that part of what's at issue in the Tokelau case?
Carl Cecere 38:29
Yeah, they rejected the initial version of that statute. That was the initiative. So the Second Circuit said the ATCA was ineffective for some very creative reasons. So then Congress went back and created a new law, and it's called the promoted Security and Justice for Victims of Terrorism Act, and that was 2019. And that was actually passed. The first time we took the Socolow case to the Supreme Court because we appealed the dismissal of our case from the second circuit to the Supreme Court. And during that time, Senator Grassley was my client. He passed the PSJ, VTA, that kind of it's very technical about exactly why it didn't work. We've kind of passed that act to overcome the second circuit's objections. We went back to the Second Circuit. The second circuit rejected us again, saying that you can't create conditions for personal jurisdiction and in manufacture deemed consent, although we do it in other kinds of circumstances. And that's where we are now is was at the district court level. And I'm so glad they said that the PSG VTA didn't work the way it was supposed to. It was unconstitutional. Now we're the Second Circuit. We're going to try and win there and then we'll probably be headed back to the Supreme Court again.
Tim Kowal 39:39
How did you? How did you come to represent Chuck Grassley?
Carl Cecere 39:43
It's another Twitter connection. John Elwood is a big supreme court lawyer and I've met him through Twitter and he recommended me to the people who were working on that case, they had seen that I've done some anti terrorism work and then I'm going to meet to represent them in this Amicus group. And then so we represent about 20 or 30 lawmakers, depending upon the particular jurisdiction the particular brief, and then file a bunch of different briefs in these kinds of cases, because there's a parallel series of cases that are going on all over the place in the DC Circuit. And in the second circuit as well. This has been really interesting.
Tim Kowal 40:17
But I think maybe to close this out, I wonder if you have any predictions for the rest of this Supreme Court term? I know a few months back, you had written a Supreme Court preview of the term. And so now, you know, we're through much of it. But I wonder if you have any predictions for the fireworks that were that are in store for us at the end of the term?
Carl Cecere 40:34
Well, I mean, I think that the most of the politically charged cases coming from this term, we kind of know the outcome of but I think the real story of the supreme court right now is the slowness of its pace of decisions. You know, there are something like I want to say 70 cases outstanding, that don't have opinions yet. And that's way out of line, when you're considering that in the next two months, the court is going to go on recess, and have decided to all of those cases. And this is a huge workload backlog that's gone on that's really unprecedented with the court. And I mean, it's got me wondering whether or not there's a kind of personal Fallout between the justices over the dobs leak that leak of the Dobbs opinion, and whether that's affected their ability to to, you know, circulate drafts and feel comfortable sending things to each other whether something's going to end up on the news. I don't know if that's you, I don't really know if that's the case. I really hope that's not the case. I'm hoping it's just some kind of other factor. It could be that the shadow docket, which is the kind of supreme pre merits briefing has become much more extensive. And there been a lot of emergency applications could be that could be those kinds of distractions. But I do worry that the dobs league kind of affected the interpersonal relationships with the justices and their trust, that's kind of integral for their decision making process.
Tim Kowal 41:46
You mentioned the shadow docket. And I was hoping I see that that later this month. In May 2023. There's going to be a book released by the University of Austin, Professor Stephen Vladeck, the shadow docket how the Supreme Court uses stealth rulings to amass power and undermine the Republic, I know that there's been a lot of talk about that anticipation of you know, what that's going to talk about, I don't know if, if you have any opinions on Shadow DACA. And how that's been used?
Carl Cecere 42:11
Well, first of all, everybody should buy Steve's book, Steve Vladeck. He's a professor at UT. He's phenomenal Supreme Court scholar. And he's actually also an advocate before the court in a number of occasions. He's a, he's a national security expert. So he does a lot of cases involving servicemen. And he raises really interesting points about the problems with cases doing cases on the shadow docket, I tend to concur that like it's becoming a problem, because there have been a lot of case, you know, with the changes in the judiciary over the past few years, where you have a lot of very aggressive judges, on the certainly on the conservative side, but also on the liberal side to who are really willing to, you know, take a ruling and unclear declare an entire, you know, agency unconstitutional or overturn portions of the Obamacare eight, you know, the Affordable Care Act in a in a single swoop or, you know, overturn executive actions as they come up with the student loans or the Muslim ban, when it was happening under Trump, that's pushing a lot of work to an area of the Supreme Court's docket, that it's not really well equipped to handle because you, you try and get an emergency stay. And that state is often determinative of the merits of the of the case, because one of the elements you've got to establish is a likelihood of succeeding on the merits to obtain the stay. Right. So that single determination, which is just one factor in one of one element in the state obligation, which is often written over a weekend, you know, that becomes essentially the only opportunity the advocates really have to present their case to the court in what would otherwise be something that would take a process of months, involve lots of em, McKee weighing in and giving their views and really taking the opportunity to really make a deliberative decision. Now you're doing these things really fast, in weeks, with a tremendous time pressure, that really aren't getting the best product out. So I don't think it's really great. I don't think it's entirely the Supreme Court's fault, because a lot of it is really related to changes in the judiciary and the kinds of aggressiveness that they're willing to issue in nationwide injunctions. But I do think that the Supreme Court's gonna have to respond in some way and say, Well, you know, we're not going to maybe maybe we're not going to make merits determinations at this stage. Maybe we'll just stay the litigation. And then, you know, let it go to the merits, but not really weigh in so heavily at the, at the shadow darkened stage and really is becoming a shadow doctors. It's not conducted in the full view of the public. Yeah.
Tim Kowal 44:38
Well, yeah, very interesting. I think there's a lot of lot of topics we could continue to explore. But I did want to point out that you pronounce ama key. Does that the proper pronunciation?
Carl Cecere 44:47
I've heard it a million different ways. I don't think there's any standard definition. I've picked the one that I think is the least weird and mucky and Amicus, I guess is one that you can say but I just find it really unnatural.
Tim Kowal 45:00
Mic us.
Carl Cecere 45:01
Does that mean is there like in many different ways of saying Amicus as there are people saying it? Yeah. And none of them's actually pertained to the original Latin I'm told. I don't even know what that that actually is. So I
Tim Kowal 45:13
like how you put it, you know, it sounds least weird to me is one of my own, personal Maxim's about about writing is that if it sounds weird that it's not English.
Carl Cecere 45:23
Yeah, I feel like my general approach to, you know, briefing and arguing in front of judges is I want to create as little friction as possible, because I know that the process of reading briefing and making decisions is not a pleasant one. It's not between my brief and a nice juicy novel, they're not going to pick mine up just for fun. So I really try and not irritate them, you know, I try to irritate them as little as possible. Well help them get through it as easily as they can. You know,
Tim Kowal 45:52
Matt know Jeff has a few closing questions for you about how to make your your writing the least conspicuous. Least unintentionally conspicuous. Great.
Jeff Lewis 46:02
All right, Carl, this is the time for our patented copyrighted segment of the show that answers the most pressing questions that Beck's appellate nerds around the world the dreaded lightning round, short response, or required one sentence one word. Let's see how many of these we can get through thought preference century schoolbook girl monde or something else?
Carl Cecere 46:23
Century btw century? Not century school?
Jeff Lewis 46:27
Yeah. All right. After a period, do you do one space or you do? Okay, fantastic. pleated when writing in a brief pleated All right. Headings. Let's put the Supreme Court aside. When you're in those other courts, when you're in a brief and your major argument headings, all caps, initial caps are set in case since case, fantastic left justify, again, ignoring the Supreme Court left justify or for justify
Carl Cecere 46:58
full justified by appreciate the other way as well.
Jeff Lewis 47:02
All right, Tim, to hit them all. Was there one, you had a pet peeve on there? Oh, yeah.
Carl Cecere 47:06
I hate I hate gehrmann.
Tim Kowal 47:09
You just had to get that last big is
Carl Cecere 47:12
it just the absolute worst not and I have to say it because I read a brief, I had to respond to a brief that was under page limits. And then it was 12 point gehrmann and 10 point gehrmann footnotes 10 point gehrmann footnotes cannot be read without a magnifying glass. This is like this teeny tiny little thin font. You know,
Jeff Lewis 47:31
they Jason and I were putting a motion together to file the state court of appeal. And we had a co counsel Ryan Campbell and friend editor include Garamond. And Jason, my paralegal comes to my office. And she said he said, Jeff, do we have to file this with Garamond? I said, you do what Fran says. So Fran, if you're listening to this podcast,
Tim Kowal 47:50
I think you're gonna retainer. The deal breaker. Yeah.
Carl Cecere 47:54
All right, Carl. Well, you should ask one other question, by the way, Word or Word Perfect. And the answer is word. And I have a real beef about that too. Because once I got, I had a fifth circuit, emergency motions deadline of like four o'clock, and I received something in WordPerfect at 330. And they're like, just flip it and file it. And I was like, I don't have word perfect for my machine. So I had to find I'm searching around law firm trying to find a computer that has WordPerfect on it. And it created panic that makes me hate WordPerfect to this day,
Tim Kowal 48:25
I wasn't even aware WordPerfect was still a thing. Yeah, I guess here it is. It's still they still got a website and everything. Yeah.
Jeff Lewis 48:33
All right. Well, regulations, not only did you survive the dreaded lightning round, I think you exceeded it and added a new question, I guess. Putting Word Perfect into the rotation.
Tim Kowal 48:43
Yeah, how do you feel about Garamond?
Carl Cecere 48:46
I think we've established that and I don't prefer you didn't say it again, because I might have a little PTSD.
Tim Kowal 48:53
Right. All right. Well, that's gonna wrap up this episode, we want to thank again, Carl Siri, for joining us. And we also want to thank again, our sponsor case text for sponsoring the podcast each week when we include links to the cases we discuss, we use casetext for those links and listeners of the podcast can find a 25% discount available to them for the classic version of casetext if they sign up at casetext.com/calp. That's casetext.com/calp. Yep. And if you have
Jeff Lewis 49:21
suggestions for future episodes, or if you have a complaint, but complaints in Garamond, and in WordPerfect format, and send them to info at Cal podcast.com. And in our upcoming episode, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 49:35
All right, see you next time.
Announcer 49:37
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I have previously noted that California appellate courts ought to change their practice of requiring an oral record when the appellant does not seek review of any factual findings. (See here, here, and here.) Appellate justices are openly split on this point. (See here.)
On the side of relaxing the requirement of having an oral record, there is good news from Guzman v. Front Porch Communities and Services (D2d3 May 5, 2023 No. B314877) 2023 WL 3265696 (nonpub. opn.). The appellant there did have a reporter's transcript. But the appeal involved only a pure question of law. So the lack of an oral record did not affect review.
Front Porch moved to compel this employment dispute to arbitration, but the trial court found the arbitration agreement to be procedurally and substantively unconscionable, and so denied the motion.
Guzman, as respondent on appeal, argued that there was no reporter's transcript, and no statement of decision, so this means the doctrine of implied findings applies and Front Porch forfeited any challenge to the implied findings supporting the denial.
But the Second District, Division Three, concluded that the lack of an oral record did not affect its ability to review the order because Front Porch “contests only the trial court's legal finding that the agreement was substantively unconscionable under Iskanian because it contained an unlawful PAGA waiver.”
As this involved de novo review, and no extrinsic evidence was offered below to interpret the agreement's terms, the lack of a reporter's transcript or a statement of decision changed nothing.
The Court of Appeal went on to conclude that the arbitration agreement did not contain a waiver of PAGA claims, and thus it was not unconscionable. The court reversed with instructions to grant the motion to compel arbitration. (Notably, although the respondent prevailed, the court ruled that each party would bear its own appellate costs.)
The Upshot: If you find yourself without a reporter's transcript, consider whether you have a good appellate issue based on a pure issue of law. But like the respondent did here, you will have to accept all the trial court’s factual findings, including any implied findings.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Here are some legal trends and trivia from the week ending May 11, 2023:
🕛 5:00 filing deadlines coming! The Third Circuit adopted a rule that requires filings be submitted by 5 pm on the due date. Fed. R. App. P. 26(a)(4)(B) sets the deadline for electronic filings in a court of appeals to be midnight in the court’s time zone on its due date. However, that rule is premised on the condition that no “different time is set by a statute, local rule, or court order.” The Third Circuit is the only circuit to take advantage of that clause to set a uniform 5 pm filing deadline. Watch for other circuits to possibly follow suit. (Via Robert Peck.)
🗣️SCOTUS oral arguments are, like, way long. One Supreme Court practitioner pines for the old days of 30-minute arguments. Now they can be over 3 hours. (Via Ben Shatz.)
😕The press don’t get law. Supreme Court says a lawsuit based on a public-construction contract can go forward, but a headline reports that the Court declared the contract invalid. (Via David Ettinger.)
🪖Defamation complaint against Maxine Waters for falsely saying her opponent was “dishonorably discharged” can go forward after Court of Appeal reverses her anti-SLAPP victory. (Via Shaun Martin.)
📄 Should I include a stand-alone “introduction” section in my brief? Apparently there are jurisdictions that do not allow them. Otherwise, the answer is always the same: Yes. (Via Jayne Woods.)
❌ CA Bar Exam pass rate = 32.5% (Via Ben Shatz.)
🚫 The Supreme Court denied review to a would-be lawyer’s attempt to force the State Bar to allow him to take the bar exam. James Camper III was excluded from the exam because he didn’t have his law degree; his law school was withholding his degree due to his failure to repay a loan issued by the school for tuition and fees. (Via David Ettinger.)
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Sometimes you CAN beat city hall. But the city, even after a court loss, can still win.
Municipal law attorney Peter Prows discusses strategies to keep in mind if you ever go up against the city.
The key takeaway: Once its made up its mind to do something, a city (or agency or whatever) will keep trying until it gets its way. So if you sue the city, don’t bring a claim that is easy for it to fix. You want to prevail on a claim that will constrain its discretion the next time around.
Even Supreme Court Justice William Brennan remarked on how difficult it is to beat a city attorney, in this passage, quoting a city attorney giving advice to colleagues at a conference of the National Institute of Municipal Law Officers in California:
"IF ALL ELSE FAILS, MERELY AMEND THE REGULATION AND START OVER AGAIN.
"If legal preventive maintenance does not work, and you still receive a claim attacking the land use regulation, or if you try the case and lose, don't worry about it. All is not lost. One of the extra 'goodies' contained in the recent [California] Supreme Court case of Selby v. City of San Buenaventura, 10 C.3d 110, appears to allow the City to change the regulation in question, even after trial and judgment, make it more reasonable, more restrictive, or whatever, and everybody starts over again.
. . . . .
"See how easy it is to be a City Attorney. Sometimes you can lose the battle and still win the war. Good luck."
(San Diego Gas & Elec. Co. v. City of San Diego (1981) 450 U.S. 621, 655 n.22 (Brennan, J., dissenting) (quoting Longtin, Avoiding and Defending Constitutional Attacks on Land Use Regulations (Including Inverse Condemnation), in 38B NIMLO Municipal Law Review 192–193 (1975)).)
Watch the clip here.
This is a clip from episode 50 of the California Appellate Law Podcast. Listen to the full episode here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
When challenging an agency action via a writ of administrative mandamus, the trial court’s ruling is the appealable order. If you are going to appeal, do not wait around for a judgment, or you could be too late (like in this previous case).
But that is not what happened in the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The case involved allegations that a sheriff’s deputy, Kelly Kent, failed to properly act on allegations of sexual misconduct against a correctional officer at the county jail. The Civil Service Commission overruled the sheriff’s demotion, and instead imposed a three-day suspension. The sheriff and the county filed a petition in the Superior Court for administrative mandamus.
After a hearing, the court granted the writ via minute order, ordering the commission to set aside its decision and demote Kent rather than suspend him. That was in November 2021.
But three months later in February 2022, the court entered its statement of decision. Kent appealed from the statement of decision on March 4.
So which was the appealable order? Last year in Meinhardt v. City of Sunnyvale (2022) 76 Cal.App.5th 43, the Fourth District Court of Appeal held that an order on a writ of mandamus was the appealable order—waiting for a later judgment was too late. (But the Supreme Court granted review in Meinhardt.)
And a statement of decision ordinarily is not an appealable order. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.)
Here is how the Sixth District came down:
“[W]e are satisfied that the trial court's February 1, 2022 statement of decision determined the rights of the parties and disposed of all issues in this case, constituting a final and appealable judgment. (See Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1115; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698; § 904.1, subd. (a); cf. County of Los Angeles v. Los Angeles County Civil Service Com. (2018) 22 Cal.App.5th 174, 185–188.)”
Comment: These cases that conclude that orders that ordinarily are not appealable—like orders sustaining demurrers, orders granting summary judgment, or statements of decision—are appealable, should make you nervous. When the courts are consistent that such orders are not appealable, there is no need to worry about taking an appeal from them: you know you need to wait for a final, appealable order. But when courts hint that they MIGHT be appealable, you need to consider taking an appeal, in an abundance of caution.
Let’s hope the Supreme Court gives some guidance when it takes up the appealability of orders on administrative writs of mandamus in Meinhardt.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Anti-SLAPP denials are appealable in the 9th Circuit, but Judge Bress says they shouldn’t be. Jeff proposes two SLAPP reforms:
Jeff tries to stump Tim on a SLAPP appeal quandary—if the defendant won on prong one but lost on prong two, what happens if the defendant fails to re-argue prong one on appeal? (Answer: forfeiture.)
Next, we wonder why appellate courts insist on an oral record even for hearings where there is no testimony and nothing remotely interesting going on.
Discovery sanctions awards may be appealable, but for other discovery awards—even those made on the same basis as the sanctions award on appeal—don’t count on it. Courts hate them.
A litigant failed to timely request a statement of decision before the end of a short trial.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Announcer 0:03
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone.
Jeff Lewis 0:18
I'm Jeff Lewis.
Tim Kowal 0:19
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists. But as uncertified podcast co hosts we try to bring our audience trial and appellate attorney some news and insights they can use in their practice. As always, if you find this podcast helpful, we would love it and appreciate it if you'd recommend it to a colleague.
Jeff Lewis 0:34
And if you don't like it, it's a wonderful natural sleep remedy. Before we jump into this week's discussion, we want to thank again, Casetext for sponsoring our podcast. Casetext, a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. In case Texas relied on by 10,000 firms nationwide from solo practitioners to law 200 firms and in house legal departments in March 2023, Casetext launched co counsel, the world's first AI Legal Assistant, oh, counsel produces results lawyers can rely on for professional use while maintaining security and privacy listeners of our podcast enjoy a special discount on Casetext basic research by casetext.com/calp. That's casetext.com/calp. Yeah. And
Tim Kowal 1:17
Jeff, I'll tell you a recent success story that I've used case text for in the AI product co counsel, you know, I've been using it just I just keep it up while I'm writing a brief and I just, if I have a cockamamie idea, and I want to see if it's cockamamie or there's something to it, I just plug it in, have it do a quick junior associate level quality of brief. And sometimes it'll spit out some cases that I hadn't hadn't found before. And that become very useful. So I'll get to the end of my brief and just think, Okay, well, let me just check these cases that CO counsel found for me, and I find the case cracker in there. And I just did that recently.
Jeff Lewis 1:46
It's like having a tireless first year associate who never sleeps.
Tim Kowal 1:50
Yeah. never complains ever talks back.
Jeff Lewis 1:53
All right, Jeff, you get the same quality. That's right.
Tim Kowal 1:56
We are continuing our tour through some recent April. And now we're into May 2023. cases. And our last episode, we covered several concerning appeal ability and timeliness issues today. We have some cases involving anti slap sanctions, settled statements, record defects, and more. So let's get right to it. The first case we're going to cover is salvus. In vs. Kessler, it's an anti slap denials. They are appealable in the Ninth Circuit, but says judge breasts they shouldn't be. So this case came out of the film production involving where Alec Baldwin had accidentally killed somebody using a prop gun. That was unbeknownst to him loaded. The cinematographer died in that case, but this is a spin off case a civil lawsuit salvus and versus Kessler out of the Ninth Circuit, and the Ninth Circuit holds that the civil case which involves the producers claims concerning his former lawyers, business and tax practices holds out no issues of public interest for purposes of the anti slap statute. So uninteresting are the claims in fact, and so devoid of protected conduct that Judge breasts separately concurred, asking why is this appeal even kicking around sucking up a year of everyone's time while the case languishes under a pointless appellate stay back at the District Court, Judge brass pointed out that the anti slap law and the immediate right to appeal from denials of anti slap motions are procedures specific to California law. But the Ninth Circuit has its own procedures. And under those procedures, there is no immediate right to appeal from anti slap denials. And in fact, Jeff, as we know, there is no federal anti slap law or procedure at all, yet, not yet. There should be if if circuits are embracing them, rather than tried to graft them on to existing, ill fitting procedural statutes, the United States Congress would just pass its own anti slap statute, Judge Bress writes, quote, this piecemeal appeal, which are precedents unjustifiably allow has resulted in a totally meritless anti slap motion delaying this litigation by nearly a year. This is neither sound as a matter of law nor sensible as a matter of litigation management, in quote.
Jeff Lewis 4:11
Yeah, so, you know, judge, Judge brass is really complaining about a smack a strategic motion against credible claims, right? The kind of anti slap motion that's clearly frivolous, has no prayer of being granted, and yet it's filed and then when it's denied, it's appealed. And the litigation grinds to a halt. And I have this to say in response, first of all, a true slap a lawsuit that is clearly and demonstrably frivolous. There should be the right of immediate appeal always to weed out frivolous lawsuits like that. But this judge is complaining about a smacks anti slap laws used for a credible lawsuit where the anti slap motion should never have been filed. Here's my easy solution. Let's amend 42 Four to five point 16 to make it a little easier for the winner of an anti slap to win Need plaintiff to get sanctions a little easier to show that it's a frivolous anti slap motion and amend the statute to say when the judge at the trial level declares it to be a frivolous anti slap a smack, if you will deprive that litigant have the right of immediate appeal. You go up on a writ if you want to seek immediate review while the case proceeds to discovery. Yeah, that is the Jeff Lewis solution.
Tim Kowal 5:22
Yeah, yeah, I'd cosign the Jeff Lewis solution to the anti slap law, Jeff D. So you have to there's two prongs of that solution matching the two prongs of the anti slap procedure, the second prong denying the right to appeal a denial of an anti slap that would require a legislative amendment. But the first part of your proposal, which is to make sanctions motions filed by the successful opposing plaintiff easier to win on, would that require a legislative amendment?
Jeff Lewis 5:50
Maybe I'm mistaken, if judges started sanctioning defendants who file smacks more as a matter of practice, you wouldn't need a legislative amendment. And in terms of the appeals, you know, over the years, since the statute was enacted, and legislature has carved out a number of areas where there is no right of immediate appeal, I think if the commercial exemption applies, there's no right of immediate appeal. And I think in a slap back action, there's no right of immediate appeal. They gotta go by way of writ. So this would be an easy legislative amendment.
Tim Kowal 6:21
Yeah, yeah. And I agree, if judges at this point, I think could look and say, Look, we now have a well developed mature body of case law interpreting the anti slap statute. So defendants, you know, by now, what is a meritorious anti slap motion and when you are being too clever by half, and so we're going to grade these plaintiffs successful plaintiffs motions for sanctions for filing a frivolous motion accordingly and get a little bit more, you know, the decks are going to be stacked a little little more favorably toward the plaintiff and granting those motions. Yeah, absolutely. All right. But But back in the Ninth Circuit, you know, allowing the Ninth Circuit rule that allows immediate appeals and appellate stays after denials of anti slap motions may be modified only by US Supreme Court decision or by the Ninth Circuit sitting on bonk. So a three judge panel as much as they might like to are powerless to change the rules,
Jeff Lewis 7:11
or an amendment to the state law, state anti slap law. I'm sure the Ninth Circuit wouldn't mind anything that reduced the number of appeals of smacks
Tim Kowal 7:19
but yeah, let's hope so. Yeah. All right. Next case is Kendrick vs. Wycoff. An oral record on appeal was required to review the validity of a trustee notice to beneficiaries. Reason I flagged this, Jeff is because we've talked sometimes about oftentimes about the court reporter shortage crisis, and how that wreaks havoc on litigation practice. If you can't find a court reporter or if you can't afford a court reporter if you are you have access to justice issues yet to scrutinize whether you really need to hire a court reporter. They're not cheap, they don't work for free. And if you're not certain you're going to you're going to need it on an appeal. You might decide, look, I better not have it. But there are a lot of cases that still will imagine that there are things going on at the hearings that require a verbatim record or at least or some form of oral record. So that's what happened in Kendrick versus Wycoff out of the first district. So probate departments recently have stopped providing court reporters in California needs, you know, some 2700 court reporters to fill the gap. And so, you know, the question is, do we really need to have court reporters and all the proceedings. In Wycoff trust beneficiary challenged the validity of a trust amendment. He claimed that the trustees notice to the beneficiaries under probate code 1606 1.7 was invalid. And that sort of thing is normally determined just by looking at the documents, you know, is it a valid notice or an invalid notice? Do you need testimony on that sort of thing? Probably not. You just look at the documents. But the Court of Appeal here said that it would not review the issue on appeal unless it had an oral record of the hearing, and no oral records. And the Court of Appeal meant that the order had to be affirmed, quote without a record of any evidence received at the hearing. We must presume the evidence supports the trial court's findings, and its resulting orders were appropriate Based on these findings and quote. So Jeff, my comment on this is that, you know, the requirement that an oral record be supplied already imposes difficult technical and administrative burdens on less well, heeled litigants, but especially so given the court reporter shortage if the respondent indicates, you know, in its brief that that, hey, yeah, there really was something that happened at the hearing, and the appellate failed to provide it. You know, here's the gist of what it is. This is the sort of thing that the trial court considered and it did. It is entitled to substantial evidence review, and therefore the appellant didn't make that burden and has to be affirmed. That's an argument I can get behind. But just imagining that maybe there was something that happened when the issue on its face didn't seem like it requires any testimony or subtleties that would have happened at the hearing that seems a little too Cavalier to to fault. the appellant for that.
Jeff Lewis 9:52
Yeah, look, a classic example is attorneys fees when you're arguing over the amount of attorneys fees on an appeal for somebody shouldn't be appealing that because That's a big hill to climb trying to disturb the trial court's discretion on the amount of attorneys fees. Well, let's say you're appealing that if you don't have a record of the oil proceedings, that Court of Appeal can say you forfeited the issue because there's no record. And there's no settled statement. I don't know what the Court of Appeal does with the reporter's transcript, attorneys fee motion, do they really need to see what the trial court's comments were in a non evidentiary hearing regarding the papers that are already before the Court of Appeal? I don't get I don't understand the value in that context.
Tim Kowal 10:33
No, I don't get that either. Again, it may depend on the issues and arguments being raised if the appellant is arguing that oh, look, the judge didn't consider my argument about the over billing or the block billing. And well, maybe there was some discussion on the record about that that's indicates that the judge did consider those issues. But otherwise, yeah, you're right. I mean, unless there are witnesses sworn in, I'm not sure what the point is, and having a verbatim record or an oral record of the proceedings, and not sure what is turning the tide in these other cases. All right, the next case, also on the subject of oral records of proceedings is rock mobile, Inc, versus Brandon out of the second district. Use a settled statement to fill gaps in your record, but don't try to rewrite the record. So here's here's an example of an appellate who knows that they needed an oral record of the proceedings didn't have a verbatim court reporters transcript, but the CEO decided to use a settled statement. But here's a good example of what a settled statement is not to be used for. So on appeal from the denial of his motion to set aside the judgment, in this case, rock mobile, the defendant brand and came up with this clever application of the settled statement process. So remember that a settled statement is a summary description. It has to be a fair and balanced summary description of the documents or oral proceedings in the trial court, Brandon put together a proposed settled statement and said that he never got notice of the October default. And this Brandon hoped would be good grounds to get the Default Judgment vacated. But the settled statement contradicted the declaration of rocks counsel in the written record, rocks counsel declared under penalty of perjury that he mailed Brandon the default the day the court clerk entered it. So the court concluded, we reject this use of the settled statement, and besides the court went on non receipt of the notice of default, shall not invalidate or constitute ground for setting aside any judgment, citing Code of Civil Procedure 587 and case law. So that the comment on this, Jeff is that you should still consider the appellants example and use a settle statement to fill any gaps in your appellate record, just don't try to use a settle statement to rewrite the record to contradict facts that are in there or to supply facts that were never actually offered into the record. But if there are documents or there's an oral transcript that are not available to show what happened, you should consider using a settled statement. It's not that difficult of a procedure. It's just so many of the ones that do come up are fumbled or attempted abuses of the procedure. Yeah,
Jeff Lewis 13:03
or in this case, the trial court wrote, according to this court appeal opinion, the trial court wrote in response to the proposed settle statement, I've got no idea what happened. I don't remember there was no court reporter there. And so settled statement was of little use in this particular case. And I don't know how trial judges go through the process and try to recreate something that happened six or nine months ago. It's crazy.
Tim Kowal 13:26
Well, that's right. That's my part of the procedure. If you're going to do it, you need to do it almost contemporaneous like day by day. And don't try to do too much it doesn't replace a verbatim record. So don't try to get the court to sign off on specific verbatim statements that were made, because then the court will say, I don't, I can't, I can neither confirm nor deny that this is precisely what was said. So you just have to do a fair narrative. If your case is going to turn on a particular way, a witness said something, then forget about it. If you don't have a verbatim record, then you're not going to be able to replicate that with the settled statement. But some good possible applications of a settled statement could include, you know, showing what happened during a sidebar. That happens even when you do have a court reporter there, the sidebar is out of the hearing of the court reporter. But you can use the settle statement to describe a demonstrative exhibit. That happens a lot. I see that a lot in the record. When I'm reading an oral transcript of the trial and I keep seeing references to a demonstrative exhibit. I don't have a copy of it. It's not described anywhere in the oral record, it'd be nice to have a settled statement that some record of what that demonstrative exhibit was you can use a settled statement for that. You can describe what happened at a law and motion hearing, as you were talking about Jeff, like the quintessential example of attorney fee motion. If you think that that the respondent is going to try to club you over the head on appeal because you don't have a verbatim record, then maybe just a quick settled statement containing a brief narrative of what happened. You can capture your request for an evidentiary hearing or a request for a statement of decision that was made at an oral hearing capture that in a settled statement, and you could capture your objections to jury instructions though As often happened in camera and seldom do trial attorneys drag along a court reporter into the judge's chambers. Yeah. Yeah. Okay, next case is Steel's is one of those situations during that period right in between kind of in that Twilight period after trial, but before the appeal, this is where a jury was released from duty court held that jury could not be reconvened. Later on when it was learned that the jury needed to make an additional finding. This is People vs. Jones out of the first district in April 2023. The lesson here is do not forget to have the jury make all of the required findings because once the jury is discharged, as happened in people versus Jones, the court loses control of the jury, and so the jury cannot be reconvened. So that's the standard of this case is the court has to have control of the jury at all times once it loses control cannot be reconvened. So what happened in Jones is that the prosecutor had charged in enhancement as a criminal case, but I think the same standard would probably apply in civil proceedings. Jeff, the prosecutor had charged in enhancement based on a prior serious felony. The jury returned a guilty verdict, but did not make a finding that the defendant had committed the prior serious felony before the trial judge thanked the jury for their service and released them from their duties. By the time the jurors were brought back in some four hours had passed, at least a record could not account for exactly where they were or if they had left the building. A jury that has been released maybe reconvened. But only if the jury has remained in the court's control. The court did note that the jurors had not left the courthouse I misspoke. The record, at least according to the record made by the judge reflected that they were still somewhere about in the courthouse. But the record was silent whether the jurors had abided by the previous admonitions, especially given the fact that the judge had released them from their duties. And court said that, quote, given such a paucity of evidence, we cannot conclude that the jury remained within the court's control.
Jeff Lewis 17:03
Right and key there was the judge's instructions on discharge saying, hey, every day I've told you you don't have you're not allowed to talk about this case. But today, I'm discharging you, and you're now free to talk about the case. Let's say one thing that that struck me when I read this case was it wasn't clear to me when defense counsel pointed out to the judge that hey, there's one more charge we got to deal with, that the defense counsel objected. When the jury was brought back in, it wasn't clear to me. And I wonder if there's an issue of waiver or invited, err, wasn't briefed, wasn't discussed in the opinion. But I'm just curious if the defense attorney had objected?
Tim Kowal 17:37
Yeah, that's a good point. I don't think it was clear in this case, whether this was a structural error, and I don't recall there being a discussion about prejudice one way or the other. I think this may be a structural error issue. Once the judge loses control of the jury. I think that jury is just there's no way to know whether the release of control is going to affect the jury's decision on a later finding that it's asked to make. Yeah. Okay. The next case deals with Discovery sanctions. This is Dec vs developers investment company out of the fourth district division three from March of 2023 $37,000. In discovery sanctions was held to be appealable, but not the related issue sanctions. So there are two different discovery orders here. One was sanctions. One was money sanctions, one was issue sanctions. The The first was appealable, but not the second, Discovery orders can be devastating. But they're not always appealable under the appealability statute of CCP, nine oh 4.1. Sanctions orders greater than $5,000 are appealable. And so that gave the defendants in the deck vs. Developers investment company case and idea the defendants got hit with issue sanctions for quote, blatant disregard of discovery and discovery orders. And although the issue sanctions were potentially case dispositive, as the Court observed, they were not appealable. But the court had also imposed some $37,000 in money sanctions. And because that's greater than $5,000. That's an appealable order. And they weren't related Jeff to the same conduct. So won't The Court of Appeal just resolve all the issues at once? God seems efficient, seems more efficient, but it didn't work here. The court noted that there is a limited exception that would permit review of a discovery order as part of an appeal from an order directing payment of money sanctions greater than 5000. But the issues underlying the orders have to be based on the same conduct, and they have to be, quote, inextricably intertwined. And here the money sanctions and issue sanctions were based on the same conduct but they were not inextricably intertwined. When I read this case, Jeff, I couldn't quite follow that it starts to get very subtle when they're, they're related on the same conduct but not inextricably intertwined. That seems to be one of those inextricably intertwined themes, one of those non lawyer LEED standards that, you know, you can just take a vote on a roomful of lawyers and get, you know, different majorities on different days. But here's how the court concluded the appeal from the order imposing monetary sanctions, therefore can be examined and resolved independently of the order imposing issue sanctions put another way we can and do resolve the issue of the propriety of monetary sanctions without also resolving the propriety of the issue of sanctions and quote, I don't know, there was a lot of words. I don't know if I understood any better after reading them, though.
Jeff Lewis 20:30
I think let me summarize from your blog post on this case, Courts of Appeal, don't want to do anything to encourage peals of discovery disputes are to make them easier to appeal. And so that's what drove the results here.
Tim Kowal 20:42
Yeah, yeah, no, that's a good razor that helps understand exactly anything that's going to make discovery orders more appealable assume that the Court of Appeal is not going to be inclined. So the upshot here is interlocutory appellate review of a discovery order usually is going to require a writ. But those are tough in any case, and especially in a case like this, where the court appointed discovery referee commented that in his almost 20 years of service as a neutral, he had never seen, quote, such blatant disregard of discovery and discovery orders, though, Jeff, in addition to just a blanket distaste for discovery appeals, this particular appellate kind of stood out as a particularly bad abuser of the discovery process. So I think the court was not inclined to deviate from its normal rule. Okay, next case, you have got a comment.
Jeff Lewis 21:32
I thought we were going to skip right to the stump. Tim, you want to talk about the reversal on appeal here?
Tim Kowal 21:36
Yeah, let's go. You stumped me, Jeff. All right.
Jeff Lewis 21:39
I want to stump you. And by the way, if any of our listeners have an opinion on this, I couldn't find a case. And I would love to get an email from you, on your opinion about this. Everybody except Fran who I returned from. Alright, so yep. So here we go. Imagine you're in an in in an anti slap manner, and you represent the plane. And you have survived an anti slap motion. And the way you survived an anti slap motion as the plaintiff is the trial judge ruled against you on prop one found that it was protected activity. But rule for you on prong two down there was minimal merit, denied the motion the defendant appeals. And in their opening brief, the defendant completely skips over prong one, and rushes right to prong two and argues now there's no minimal merit. And my question for you terms of stumped Tim is in light of the de novo review, is the defendant appellant required to brief prong one as part of their de novo review or presentation of the correctness of the order. And if they don't receive prong one, is there an argument that you've somehow waived or forced the decision?
Tim Kowal 22:45
Yeah, forfeit the whole appeal. So from the eyes of the appellant, the appellate one on prong one, we I established the defendants successfully established that this complaint arose from protected activity, it chilled my free speech rights. And it can only proceed if the plaintiff shows minimal merit, but the plaintiff did show minimal merit. And I want to attack that ruling. And I'm not going to waste time on prong one, because I already went on that and just refer back to the judges, you know, eloquent brilliant dissertation on my prong one victory and just reverse a Mont where he missed up on prong two. But then the question is, are these two different orders? You know, is there it's a prong one analysis and a prong two analysis, but it's not a different ruling on prong one and prong two, it's all part of one order asking for relief on the anti slap statute. So and as we know, one of the fundamental appellate rules is that all intendment and presumptions are applied to affirm the ruling and the ruling here. Again, it's not a it's not a half and half, it's just the ultimate result is, you know, denied victory for the plaintiff.
Jeff Lewis 23:46
And while your gears are spinning in your head, let me throw two other points out there. Number one, orders are presumed correct. The appellants burden on that, and number two courts of appeal review results, not reasons. Yeah. So at the end of the day, what the trial court thinks about prong one or prong two, might not be entirely relevant to the disposition of a de novo appeal.
Tim Kowal 24:10
That's right. That's right. Yeah. So you start from the conclusion, the conclusion is anti slap motion denied. And then you just work backwards to see if it's all supported. That's why I don't know sometimes when I see these things, you know, why would a trial court make any statements favorable on any part of the losing party's arguments and say, Oh, the losing party is right about x and y, but it's wrong about z, because then this sort of thing is going to happen and then appellant is gonna go up to the Court of Appeal and say, See, I got X and Y, right. And at least if it's a de novo review, you have to re argue and when on x and y all over again.
Jeff Lewis 24:45
I'm biased because I'm on the other side of this issue, but I'm just gonna say this. Not only does the appellant have to brief both Bronwyn and Bronk to I'm going to say it is malpractice it falls below the standard of care if you are briefing an antiserum Porter on appeal. And you don't address both Paul wrongs unless there's a stipulation on record, or some sort of something binding like that.
Tim Kowal 25:08
Yeah, I think so I'm not sure if you do these a lot more than I do. If you've not seen this before, this seems like a trap that a lot of people might fall into.
Jeff Lewis 25:17
I've never seen, I've never encountered a brief either way, on either side of this issue where somebody skipped over
Tim Kowal 25:22
a prop. They just skipped over it entirely. Not even humming a few bars.
Jeff Lewis 25:25
There was a sentence where they said, well, the trial court found in our favor and prong one correct. And that was correct. But there was no argument and enough that was in the introduction or summary of argument wasn't in. There's no separate argument about prong one.
Tim Kowal 25:37
It is a burden. It's an affirmative burden on the prong one, and so you have to make it again, on appeal.
Jeff Lewis 25:43
Yeah, well, I'll let you know how the court rules. But I was surprised I couldn't find a single case on this. And audience. If you've heard of a case on this point, please email me.
Tim Kowal 25:51
Yeah. Jeff, would it be different in a different context in a different than anti slap context, which is reviewed for de novo? Would it be different where the review? If it was a factual finding, instead of a legal finding? Would it be different with the factual findings still hold up, even if the factual finding is in favor of the losing party? Yeah, that's
Jeff Lewis 26:11
interesting. You've stumped Jeff,
Tim Kowal 26:12
I think you can make an argument either way. But I have seen cases that say that we're not going to we infer all reasons, you know, make all reasonable inferences from the record, but we're not going to affirm or infer things that are directly contrary to the record. But again, this is a de novo review on prong one. Yeah, it does. It goes away. It's a no court
Jeff Lewis 26:32
of appeal is basically doing the same thing that the trial court does. It's kind of like Ms. JS and an MS. J. If you're trying to knock out five elements of a claim. You don't just prove three of the five. But I mean, you go for all five guys, I don't understand it.
Tim Kowal 26:45
Yeah, yeah. Let's see. I had a case here I wanted to talk about concerning statements of decision. This is a perennial favorite issue I'd like to discuss on the podcast because it comes up so often in my conversations with trial attorneys. This is Atlantic Richfield company versus California Regional Water Quality Control Board out of the Third District. This is back in December. So a few months old, when do you have to request a statement of decision? So when I tell trial attorneys my top appellate advice such as don't forget to get a court reporter the most common responses already knew that. But when I give my second most important appellate advice, which is don't forget to request the statement of decision. The most common response I get from trial attorneys is what for the court already gave me a tentative decision so I can request the statement of decision then. But not always, as arco learned in Atlantic Richfield, the court there held a hearing that lasted all of 79 minutes. arco did not request the statement of decision before submitting, and instead arco assumed it could wait until the trial court issued its written order a tentative decision, which would give it then a 10 day period to request the statement of decision and that 10 day period is also extended by the CCP 1013 rules for service but that was not the case arco had miscalculated because the trial court the trial court wound up denying the request is untimely because under California Rules of Court three point 1590 That's a key rule of court that governs statements of decision and tentative decisions three point 1590 under subdivision and quote when a trial is completed within one day or in less than eight hours over more than one day. A request for a statement of decision must be made before the matter is submitted for decision. arco then so it was untimely because they submitted and at that point, it's all over. It was only a 79 minute hearing less than eight hours less than a full day article then tried an argument turned out to be more too clever by half though it was they did have some case law to some to support it. Here's what arco argued, they said that although the proceedings only lasted 79 minutes, the judge must have then gone back into chambers and spent a lot of time reviewing the voluminous record maybe took it down to the courthouse cafeteria and maybe took it home and work from his home office. That all that work. laborious work, reviewing the record after the 79 Minute hearing and coming up with its eloquent decision must have taken more than eight hours. And so it's more than eight hours. Therefore under three point 1590. The court had to issue a tentative decision. The court rejected it and said that the court followed in re marriage of gray saying that included this quote explaining, you know the pretty common sense way of how to calculate the eight hours that said we cannot realistically expect trial judges to keep stopwatches to record the time spent off the bench rather than eight hour rule in CCP section 632 governing statements of decision requires a simple and obvious mode of timekeeping that everyone, including attorneys can keep track of even even US attorneys who can think of all sorts of strange ways that obvious things that are no longer obvious. So the time of trial means the time that the court is in session in open court and also includes ordinary morning and afternoon reads So this is when the parties remain at the courthouse, it doesn't include lunches. But otherwise we discount the time that you're in open court and the basic recesses. So don't forget to request the statement of decision. If you're in a short trial, you know, have a script ready to go. Do not say I submit your honor until you have requested your statement of decision or better yet, file it in writing beforehand.
Jeff Lewis 30:22
Yeah. Because part of your opening statement or as part of your trial brief, why not request the statement of decision at the beginning of trying to game the system or predict if you're going to win or lose? Absolutely.
Tim Kowal 30:33
I've been meeting for a while Jeff to write up a guide, you know, a checklist on statements of decision because I wind up having these conversations with attorneys so often about how to do it when they're preparing for a hearing or explaining to a why they have failed something up after the fact. If I write something up, I could just send them a PDF of it. Okay, and here's here's one more that I thought we'd share it I thought this was kind of fun. Ordinarily, it would be newsworthy that a United States District Court allowed a brief that was filed 15 minutes late, but Judge David proctor not only refused to strike the late filed brief, he ruled that striking a brief just because it was filed 15 minutes late would be absurd. So in the district court ruling in Whitworth vs. Medrano this was Southern District of Alabama back in January of 2023. hat tip to above the law judge proctor noted that quote, There are no doubt many other instances when 15 minutes could make a world of difference such as 50 minutes extra time presenting oral argument or running a marathon or making a departing flight. But Judge proctor goes on the electronic filing of an opposition brief in this court on a late Thursday afternoon is not one of them. Judge Proctor's sketched out a parody chambers scene in a quote parallel universe in which idle court clerks expectantly stand the wires in the waning minutes approaching 5pm breathlessly awaiting a litigants brief whereupon they commit and resolve to devote their entire evening to reading no consuming and cherishing every syllable of this expected filing. And Judge proctored concludes only in such a distant parallel universe with striking that late filed brief make any sense? I thought, Jeff, that maybe you keep the maybe bookmark this decision, and next time you need to file a late brief, you know, consider referencing judge Proctor's observation that, hey, you know, a brief file just a few minutes late could only be faulted in a distant parallel universe. It would be absurd to strike a brief just filed, like one minute late like the notice of appeal that we ordered on last episode.
Jeff Lewis 32:36
Yeah, yeah. No, it is a good case to bookmark. And by the way, Proctor's a great name for a judge to relax. A rule on regard regarding the timing issue.
Tim Kowal 32:45
Yeah. Yeah. All right. We got a few legal news and tidbits you want to cover those?
Jeff Lewis 32:50
Yeah, let's do a cup. Let's do three, three, okay.
Tim Kowal 32:52
Want to kick us off? Or let me picture
Jeff Lewis 32:55
I'm gonna kick one off. It's not in your notes. It's not truly news. It's more of a tidbit. I demoed clear brief this past week, and within a couple of days, signed it up for everybody at my firm. What an amazing product. This is, I gotta tell you, I had heard about clear brief and some of its marketing materials, and I thought, it's just a fancy way of hyperlinking your briefs, when you click on a brief case, you pull up your Westlaw case and it's there, you click on the record, record site, and the record comes up. And you know, I've got an amazing paralegal who could do that for me. So I thought the product is a waste of time. Oh, my God, this AI powered product does a couple of things. First of all, it's got this magic table authorities feature. Tim, have you ever gone through a brief and had to manually Mark authorities coded them so a proper table of authorities can be created?
Tim Kowal 33:44
Oh, yeah. Yeah, of course. Yeah. Yeah. Tedious, tedious, time consuming.
Jeff Lewis 33:49
Yeah, I usually have my paralegals do this. Collaborative has this magical button, you press the table of authorities and boom, within about two minutes, even in a lengthy brief, it is formatted perfectly to California citation standards. You can have it omit pass on and do all the other things, all your little nuances that you want in a table of authorities. No coding whatsoever, you press a button, it's magic. That's one thing. The second thing it does. Suppose you upload your record in PDF form to the cloud in a secure setting. And you're looking for a citation of the email where bad guy call somebody, you could type into a search field, it will give you 15 suggested sites of where that appears in the record using AI, not a Boolean search, but more of a fuzzy logical search. And when you get to the one that you like, and if it's correct, you press a button, and it automatically inserts in your Microsoft Word brief the citation to that evidence, and then when the brief is done, you click a button creates a late fully hyperlinked. eautiful brief that you can email to the clerk or your opponent or client with clickable links for every case and every citation to evidence. I can't endorse this product enough. It's game changing.
Tim Kowal 35:05
Yeah, I was impressed. I demoed it last year. And one thing, one limitation, I think this was a limitation, that if you're looking for a piece of evidence, you're looking for a statement or proposition looking support for it, and you type it in, and you wind up getting a whole bunch of results that are from my own complaint, or from my clients own deposition testimony or trial testimony and things that are Yeah, that's directly on point. That's why we set it to trial and in our pleadings, I want to find where the other side's evidence supports it. That's a little bit more difficult for maybe AI to figure out. Yeah, the source, the foundation of the information is as important as a textual match for the proposition.
Jeff Lewis 35:42
Yeah, let me say this, though. One other feature, you upload the bad guys brief. There you go. And it hyperlinks it. And if you've got the record, and if the bad guys did a pretty good job of citation in a uniform way, it will hyperlink the bad guys cases and record citations. So you could click each one and say, does the record really saying what they say? It says?
Tim Kowal 36:03
Yeah, no, that's That's very true. By the time you get the bad guys brief, it's been some months before you looked at yours, you can't quite remember your arguments how strong they were, and then you're reading theirs. And that's that's a good point. And then they Oh, they got a citation for it. So it must be true. Yeah, you could instantly see what they're citing to you can see where their weak spots are.
Jeff Lewis 36:21
Yeah, so my final word on this product is, it's a Microsoft Word plug in or add in that anybody could just add it in without paying for it. It's effectively a free trial. And then after a few days, I think the folks that clearly call you and ask you to set up an account. But if you want to play around with it, you go to Microsoft words, add in store and download it and I highly endorse this product. It's gonna save a lot of time on pre preparation. Yeah.
Tim Kowal 36:45
All right. Here's another legal tidbit. But a legal news. We've mentioned a couple times about California Supreme Court granting review of cases involving COVID insurance cases. The Supreme Court recently denied review and SBA p three Poway crossings LLC versus fitness International. That's a case where the Fourth District Court of Appeal had published an opinion holding that a fitness facility was not excused from paying rent when government orders shut it down for several months because of the COVID pandemic. So there have been a lot of people watching to see if insurance coverage was going to apply to COVID related shutdowns, COVID related claims, and there hasn't been a lot of published authority. I don't know that there's any published authority. I think maybe there was one recently just a couple of months ago, but we're gonna it looks like in this SVP, Poway crossings case sometime maybe later this year, the Supreme Court will come out with a published decision about COVID coverage and insurance policies. Interesting. There was another case or another bit of news out of from law.com Why judge Charlotte Sweeney is adding pro se summaries to her rulings. I thought this was interesting. Here's judge Sweeney's comment about the importance of giving some summaries that can be digested easily by non lawyers to introduce the holdings of cases that come out. The quote is the idea that we could simplify this in a brief introductory paragraph and help that person understand the bottom line of a decision is really appealing to me. Judge Sweeney is a district judge from the United States District Court of Colorado. I thought that's an interesting case. I think, you know, anything to make the cases we get a lot of cases coming out of our appellate courts. And some of them do provide, you know, helpful synopsis of what they state I think our California Court of Appeals do a good job of doing that. So I endorsed that practice.
Jeff Lewis 38:35
Yeah, no, it's fantastic practice justice Rubin of the second district justice beds worth of the fourth Appellate District, both two amazing jobs in the writings and summarizing nicely the case before getting into the weeds. And in particular, if either of you are listening to this podcast, I'd love to have you on as a guest.
Tim Kowal 38:53
Absolutely. All right. One other I thought it was interesting. That is the case we could do a summary on but judgment creditor could was unable to seize an Academy Award Oscar, this case involved versions of a post judgment order. The court ruled that by virtue of a contract between the Academy of Motion Picture Arts and Sciences and the award winner David Ward, who won the 1974 for best script in the state for the sting. Yeah, but the Academy had the right contractual buyback right first right of refusal at $10. So the judgment creditor could not seize the Oscar until the academy was first given first right of refusal to buy back the Oscar for $10. So that limited the value of the Oscar to $10. And the Academy had a first right of refusal thought it was an interesting case. You ever want to ensure that an asset a valuable asset cannot be seized by a judgment creditors make it subject to a first right of refusal?
Jeff Lewis 39:48
Yeah, although the academy award contracts might be given a lot more deference than let's say, a sham contract to avoid collection.
Tim Kowal 39:59
Okay, It would. You said only three Jeff. And I'm going to I'm going to cheat and do one more in here. This was an interesting one about the CCP 998 offers. Oh, yeah, Jeff, this is just such a quagmire these 998 offers, you know, you just when you think you understand that there's a case that throws you upside down. So in this recent case, and holds that the 998 offer applies, even where a case settles. So you know that if you make an offer and you don't beat it in the judgement, then you're going to be liable for costs and expert fees. That rule applies even if the case doesn't go forward to a judgment and you settle for less than the offer. But this was a split decision. Acting Presiding Justice Ronald Roby dissented, arguing that the cost shifting provisions of 998 should apply only where a plaintiff suffers a defeat at trial, or gives up the fight, not where there's a settlement.
Jeff Lewis 40:48
Yeah, this is an interesting one. I you know, without dissent, maybe it'll go up to the California Supreme Court. I'm struggling to figure out why there was a settlement that didn't deal with all the issues, attorneys fees and costs, why they left costs open, but okay.
Tim Kowal 41:00
Yeah, yeah, that seems like it may have been an oversight. Yeah.
Jeff Lewis 41:05
All right. With that, let's close this episode out. We want to get thank casetext for sponsoring the podcast each week, we include links to our cases, we discuss from with casetext daily updated database of case law statutes, regulations, codes, and more. And remember, listeners of our podcast, join a special discount on casetext. casetext basic research at casetext.com/calp. That's casetext.com/calp.
Tim Kowal 41:30
And if you have suggestions for topics that we should discuss in future episodes, or guests that we should invite on the show or if you would like to be a guest and you have a great story or topic to discuss on the episode we'd love to discuss having you on, please contact us at either one of our email addresses if you can find them there on the State Bar website or you can email us at info at cow podcast.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis 41:58
See you next time.
Announcer 42:00
You have just listened to the California appellate podcast, a discussion a timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cal podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
The court in Robertson v. Larkspur Courts (D1d1 May 2, 2023) No. A166818 (nonpub. opn.) could have done worse to the recalcitrant plaintiff than just dismiss his appeal.
In this landlord-tenant dispute over a mold issue, the parties stipulated to a judgment. The landlord did its part and paid Robertson $28,000 as agreed. But then Robertson refused to dismiss his action with prejudice. Robertson previously appealed from the stipulated judgment, which was (predictably) affirmed. Robertson also appealed from a sanctions award, which was also affirmed.
Meanwhile, Robertson was racking up appellate costs awards against him. And—would you believe it?—Robertson also refused to pay those.
Growing tired of waiting around for Robertson’s compliance, the trial court deemed the release to be signed and dismissed Robertson’s case. Robertson then appealed from that dismissal.
The Court of Appeal had no trouble concluding that Robertson’s appeal should be dismissed under the disentitlement doctrine:
"An appellate court has the inherent power to dismiss an appeal by a party that refuses to comply with a lower court order." (Gwartz, supra, 231 Cal.App.4th at p. 757.) "Courts cannot function if their orders and judgments are routinely ignored by litigants or their counsel," and "litigants are [not] free to ignore or refuse to comply with subsequent trial court orders" when their lawful attempts to challenge a court's rulings are unsuccessful. (Findleton v. Coyote Valley Band of Pomo Indians (2021) 69 Cal.App.5th 736, 756.) Rather," '[a] trial court's judgment and orders, all of them, are presumptively valid and must be obeyed and enforced. [Citation.] They are not to be frustrated by litigants except by legally provided methods.'" (Ibid.)
True, Robertson had not been held in contempt for violation of court orders. But that is not a requirement to invoke the disentitlement doctrine. The court may dismiss an appeal under the disentitlement doctrine "where the appellant has willfully disobeyed the lower court's orders or engaged in obstructive tactics," even if the appellant has not been formally held in contempt. (Gwartz, supra, 231 Cal.App.4th at pp. 757-758.) The doctrine has been repeatedly applied in cases where the appellant "has frustrated or obstructed legitimate efforts to enforce a judgment" (id. at p. 758), and it" 'is particularly likely to be invoked where the appeal arises out of the very order . . . the party has disobeyed.'" (Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 265.) "[T]he merits of the appeal are irrelevant to the application of the doctrine." (Ibid.)
The court concluded that, despite having stipulated to a judgment and the court having implored Robertson to work constructively with the respondents, Robertson “unreasonably prolonged the litigation while burdening respondents, the trial court, and us with his voluminous filings and meritless arguments. We decline to entertain yet another appeal by someone who displays such disregard for court orders and the legal process.”
The Upshot: The disentitlement doctrine is the appellate version of unclean hands. If the court gets the impression that you are pouring sand in the gears of the judicial machinery, this may be a reason for the court to dismiss your appeal.
Here, in addition to dismissal, the appeal itself—from a dismissal based on a stipulated judgment—may have been objectively frivolous as well, supporting appellate sanctions. Recall McQueen v. Huang, where “gamesmanship” in the trial court supported sanctions in the appellate court.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Courts upheld a gun ban but overturned a gas ban, and found yet another strange application of section 998 offers. Judges and clerks are more becoming more racially diverse, but come from a very short list of schools. And PJ Rubin talks about the best kind of oral argument.
💥Cal. Ct. App. says California’s ban on assault weapons is constitutional. The court in People v. Bocanegra, 2023 S.O.S. 1228 distinguished the U.S. Supreme Court decision Bruen. Bruen “made clear the Second Amendment protects a law abiding citizen’s right to possess a handgun for self-defense, whether in the home or outside the home.” But in this case, “There is simply no interpretation of the facts here that suggests defendant possessed the AR-15 rifle for self-defense at the relevant times, a fact defendant’s appellate counsel conceded at oral argument.” Also , “Bruen did not analyze whether a particular type of firearm is protected under the Second Amendment. Rather, Bruen focused on whether New York’s statutory public-carry licensing scheme violated the Second Amendment right to carry handguns publicly for self-defense.” (via MetNews.)
🔥Ninth Circuit Spikes Berkeley's Gas Ban. in a unanimous opinion, the U.S. Court of Appeals for the Ninth Circuit ruled that the nation’s first ban on natural gas, put in place by the City of Berkeley in 2019, violates federal law. The three judges found that the city’s ordinance was preempted by the Energy Policy and Conservation Act of 1975, which prohibits the implementation of regulations that favor one type of fuel over another. (Via New Geography.)
📃CCP §998 Applies Where Case Settled for Less Than Offer. You read that right: there was no judgment. The parties settled, and because the settlement was less than the offer, section 998 applied. Acting Presiding Justice Ronald B. Robie dissented, arguing that the cost-shifting provisions of §998 apply only where the plaintiff suffers a defeat at trial or gives up the fight, not where there’s a settlement. (Via MetNews.)
🏆 Judgment Creditor Cannot Seize Academy Award ‘Oscar’. The Academy has a right of first refusal to buy the Oscar back for $10. (Via MetNews.)
👩🏽⚖️ Diverse in some ways but not in others: When it comes to law schools, Biden’s judge picks aren’t diverse -- Of the president’s 30 nominees to the 9th Circuit and California district courts, 25 have attended one of six elite law schools. (Via Ben Shatz.) Data in [a recent] study suggests that 10 law schools were responsible for approximately 33% of the federal clerk hires in the nation, a situation that concerns some legal experts. (Also via Ben Shatz.)
😨 Uncomfortably conversational: Presiding Justice Rubin says that, at oral argument, lawyers should be "comfortable -- but not too comfortable.” Justice Rubin wants “a serious conversation” and but “it's hard for lawyers to have conversations in that sense unless they're basically comfortable." At any rate, don’t call the panel “you guys”: "'you guys' is not the correct way of referring to us.'" (Via Ben Shatz.)
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Consider these two alternatives for ending a brief:
“This Court MUST reverse.”
“This Court SHOULD reverse.”
Stefan Love, who reviewed John Blumberg’s book Persuasion Tips for Trial Lawyers, explains why you should consider the latter choice.
No one—judges included—like being told what they “must” do.
But what if the authorities are clear that the result is compelled as a matter of law? That makes it tempting to write “the Court MUST do what I say.” On the other hand, you ought to have made it clear in your argument already what the authorities say.
So the better choice is to tell the court that the result you want is merely correct—and don’t dare the court do disagree by insisting that it is “compelled.” As Stefan says, the Court of Appeal doesn’t want to be ordered around.
But of course, the decision is up to you.
Watch the clip here.
This is a clip from episode 43 of the California Appellate Law Podcast. Listen to the full episode here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
On this April 2023 cases & tidbits episode, we warn about several cases where an appeal is lost because of failure to appreciate the appellate deadlines—which are often tricky to determine:
📬 Zen riddle: If you never received a Notice of Entry or stamped order, then does the 60-day deadline begin to run? Answer: Upon mailing. (It is possible you will never receive it—but that doesn’t affect the deadline to appeal!)
⌚ An appeal can be filed up to midnight on the 60th day. But not a second after! Appeal filed at exactly 12:00 a.m. is the 60th day. One minute late might as well be a year late.
📝 A file-stamped order is a “triggering document” that starts the 60-day clock. But what if only the certificate of mailing is stamped? No good—the 60-day clock isn’t triggered.
📝 What if the order is stamped, but the stamp isn’t signed? There’s no such requirement—your 60 days still runs.
Also: Justice Yegan will follow precedent on resentencing “lemming-like,” but is going to “kick and scream on my way down to the rocks below”; CA Ct. App. overrules SCOTUS, arb denials might no longer be stayed pending appeal.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Announcer 0:03
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone.
Jeff Lewis 0:17
I am Jeff Lewis.
Jeff Lewis 0:18
And I'm Tim Kowal. Well, Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some news and perspectives they can use in their practice. As always, if you find this podcast helpful, we are most appreciative if you help expand our audience and recommend it to a colleague.
Jeff Lewis 0:36
Right and before we jump into this week's discussion, we do want to thank casetext for sponsoring our podcast, please text is a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. East Texas relied on by 10,000 firms nationwide from solo practitioners to American law 200 firms and in house legal departments. In March 2023, casetext's launched co counsel, the world's first AI legal assistant who counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy. Our listeners can enjoy a special discount on case Tech's basic research plan at casetext.com/calp That's casetext.com/calp.
Jeff Lewis 1:17
I tell you, Jeff, it's rare since I got co counsel. It's rare that a day goes by that I don't use it to generate a quick and dirty legal research memo if I'm on the phone with a potential client or if I'm writing a brief and I have some idea that pops into my brain. I want to know if it's harebrained or not. I just punch in the legal research query. And it shoots out a junior associate level research memo that tells me if I might be onto something or if I'm a crackpot, so it's extremely useful, and it's a great product. So Jeff, it's been I think over a month since we did a cases and tidbits episode, so we thought we would cover some recent California court of appeal cases and another California Ninth Circuit news of note this episode. So we're going to kick right off with few recent cases that deal with one of our favorite episodes. Jeff, we'd like to jump around the corner and scare poor trial attorneys about the notice of appeal and filing timely notices of appeal and having the the Notice of Appeal formatted correctly. So the first few cases deal with those threshold issues and getting a good timely Appeal File from an appealable order. The first one is dannelly vs. Whoo. It's a fourth district Third Division case from March 2023. It's an unpublished decision. But it involves the proposition that the 60 day appellate deadline runs from the date of mailing and receipt or lack of receipt is irrelevant. That's the important takeaway from Dan Lee vs. Woo. So this is how I would set up a discussion about Danly versus Woo, is that opposes this trick question. So you know, you have by default 180 days to file your notice of appeal that 180 day deadline applies if no one serves a triggering document under Rule 8.104 triggering document would be either a Notice of Entry of Judgment or a file stamped copy of the order or judgment. And if you never received one of those documents, doesn't that mean you have 180 days to file your notice of appeal, no deadly vs will confirms that focusing on whether you received the triggering document is the complete wrong focus. Because you can't be sure just by whether you received it or not whether it was mailed. And that's the only thing that counts. That's what the defendants learned and dannelly versus Whoo, they never received a notice of entry. So they appealed just under the 180 day deadline. And it was a pretty big appeal to it was over a $3.3 million default judgment. But it turns out the plaintiffs had served a Notice of Entry, they mailed it to the addresses that the defendants had on file with the court. And they did so just a few days after entry of judgment about five months before the notice of appeal was filed. But wait, the defendant said we never got the Notice of Entry. We dutifully checked our mail and it never arrived. Sorry, doesn't matter. The 60 day clock runs upon deposit into the mail. And the money quote here from Mezcal versus Culver City Unified School District way back in 1970. case so this has been the law for some time, quote, the risk of failure of the mail is on the addressee. Now one might ask doesn't this rule invite abuse? Wouldn't it allow a prevailing party to prepare a false Notice of Entry and proof of service without recourse?
Jeff Lewis 4:29
Yeah, even though there's not even a requirement that you file a Notice of Entry router. So one could just serve a Notice of Entry of order or claim they served a Notice of Entry of order. never showed them the docket so appellate counsel wouldn't have notice of it. And yeah, it is an area ripe for abuse. Yeah, I
Jeff Lewis 4:47
can't tell you how many times Jeff that I've talked with a client or a or an attorney, you know, potential client and I tell them the importance of the triggering document that you know about the Notice of Entry. I have to know whether there's been mailed a Notice of Entry well I looked on the on the docket and it's not there doesn't matter. That doesn't tell you anything. Yeah, I didn't notice they're sure that confirms it for you. But if it's not there, it doesn't prove the negative.
Jeff Lewis 5:11
No, no, no. And I didn't notice at the end of it at this decision, there was an interesting tidbit or lifeline issued by the Court of Appeal reminding parties, they always have the right in the trial court when trying to attack a void judgment to try to get around a lapsed 60 day period of appeal, probably far too late to help these parties. But it's always good to remember to bring a late filing deadline to the trial court's attention first, in the case of a void judgment.
Jeff Lewis 5:35
Yeah, that's right. And back to my rhetorical or not rhetorical question may be about whether the rule about the fact that it's only the mailing of the Notice of Entry, or the file stamped copy of the judgment that is relevant to the receipt doesn't matter. Does that invite abuse? What is the recourse for someone who truly didn't receive the triggering document and had no way to receive it? And yet, it turns up later on, you know, in a motion to dismiss the appeal. I actually don't know that I know the answer to that, Jeff, is the recourse as you suggest to seek relief in the trial court,
Jeff Lewis 6:07
that seemed to be in the case of a void judgment. As to other instances, I don't know that there wouldn't be much relief.
Jeff Lewis 6:13
Yeah, yeah. I don't know, either. That's why I think yeah, even though you have that 180 days is the default period, if there's not a triggering document, because you never can be sure that maybe there was, you know, a triggering document dropped into the mail. But as the message LK says the risk of failure of the mail is on the addressee. So maybe you always do have to just assume that your deadline to appeal is 60 days. Yeah, that's the safest practice. Okay, so that was dannelly versus Woo. The next case along the same vein, this is kind of a fun one if McCobb and appeal filed one minute late literally one minute late, was dismissed as untimely. In McKenna vs. Sony Pictures Entertainment. This is a case involving the film once upon a time in Hollywood. It's an unpublished case out of the second district Division five. So here's the setup in McKenna versus Sony. After getting hit with an anti slap award, the plaintiff and McKenna filed a notice of appeal, the plaintiff McKenna had already filed the order granting Sony's anti slap motion based on alleged misappropriation of the likeness of the late actor Christopher Jones in the Quentin Tarantino film, Once Upon a Time in Hollywood, to file the notice of appeal, the attorney logged on to the E filing system in the evening of the appellate deadline. So it's the last day and it's at night. So it's really late at night, it's 11:52pm. So you're going on the edge, you're seven minutes and some seconds away from your appeal being untimely. And just as Murphy's law would dictate, the attorney found that he was suffering from a slow connection. And because of that slow connection, he says the notice of appeal was not actually received not file stamp until 12am 12 o'clock on the nose, and the rule state that it has to be filed by 1159. So 12am becomes the next calendar day, that becomes the day after the deadline one day late, and in fact, only one minute late. The plaintiff also had a second problem. The Notice of Appeal did not identify the order being challenged on the appeal or the name of the appellant. And so the clerk initially rejected the notice of appeal for that reason. So the morning after the deadline, the plaintiff filed a motion to amend the notice of appeal to correct those errors, and also explained the E filing problems. But the court of appeals still dismissed the appeal. The case applied the rule providing for relief for E filing mishaps, much more narrowly, then did the case we covered a couple of months back and Garg versus guard, that's a fourth district Third Division case from September of 2022. That case stood for the rule that if you suffer technical problems and the E filing process for the Notice of Appeal, you can seek relief by filing a motion directly in the Court of Appeal to make that showing but it has to be done immediately. And in that case, I think it was about 30 days later that that motion was filed and that was not immediate enough to warrant that relief. The court and back to McKenna The court also declined to invoke the doctrine of liberality which the same second district invoked rather liberally for that matter in another recent decision in Magyar versus Kaiser Permanente. The upshot is when it comes to invoking the rules that might relax the deadline to appeal, your mileage may vary, so don't count on them. Guard versus guard may have gotten the appellant some relief, but was not able to get that relief here in the second district.
Jeff Lewis 9:41
And context is everything. This decision here came from Division five of the second district that's a Division I really enjoy representing respondents
Jeff Lewis 9:52
responded friendly division. Yeah, good. Yeah. Yeah, very strict on the application of the procedural rules there are right the next case also we're continuing in the vein of technical problems in filing the notice of appeal and complying with the appellate deadlines. This is the case of Castillo vs McCreary. A piecemeal notice of judgment is not sufficient to trigger the 60 day deadline to appeal. So here's one, we've covered two cases where the appellant was found without relief and found to have had an appeal dismissed. This time, the appellant did get some relief. So the way I set up this case is, you know, it prompts us attorneys to ask ourselves every now and then whether we actually know how to determine the deadline to file our notice of appeal. So Castiel provides us a good test case here. So here's what happened. On September 3, the trial court entered admitted order imposing discovery sanctions of $6,500. So first, you have to ask yourself, is that an appealable? Order? Well, I remember certain discovery sanction, but most discovery orders are not appealable. But if they involve sanctions, they may be appealable. Let's see $5,000 It has to be more than $5,000, it has to be more than 5000. This was 6500s. Okay, so it's an appealable order under nine oh 4.1 a 12. But the minute order was not file endorsed. And so you might you should be thinking at this point under Rule 8.104. Let's see, in order to trigger the earlier 60 day deadline to appeal, it has to be a file endorsed copy of the appealable order. So this one wasn't file endorsed. Okay, so maybe the 60 day deadline doesn't apply. But the order was accompanied by a certificate of mailing, and that certificate was file endorsed. Okay, so the order isn't stamped, but the proof of service is stamped, what does that do under 8.104. So and then the default deadline, remember to take an appeal is 180 days to file endorsed order showing the date it was served triggers the 60 day deadline to appeal. So the question was was a non stamped order attaching a stamped certificate of mailing enough to trigger the 60 day deadline under Rule 8.104. Close call, the respondent made a valiant effort to get the appeal dismissed. But under Alan versus American Honda, the court may treat the order and certificate of mailing as the same document for purposes of complying with the part of the rule that requires the order show the date of mailing. But are they the very same documents such that the file stamp on the proof of service constitutes a file stamp on the order of the court held? We are not aware of any court to have taken that approach? And we declined to do so here. So the courts conclusion was the trial court's minute order is not truly file endorsed, though the 60 day deadline to appeal did not apply appellant had 180 days and made it timely filed it within that time.
Jeff Lewis 12:38
I have absolutely nothing to say. Yeah, well.
Jeff Lewis 12:42
And I funny enough, I do have one other case that also deals with the file stamp issue. So you know, Jeff, you're the between the two of us. If someone has a question about some vagary, about the California anti slap law, then you're the one that you're the co host are going to go to but if someone has a question about the vagaries of California law about file stamped orders, and what what counts as a triggering document or AICPA rule 8.104, then I want to corner that market, Jeff, because I got another case about file stamp in McKinsey versus Altia. Resources Corp, bring it on. In that case, a file stamp signed order order triggers the 60 day deadline to appeal even if the file stamp itself isn't signed. So here's another creative argument here about whether the file stamp has to be signed to constitute a triggering document under Rule 8.104. So again, we're dealing with 8.104. What constitutes a triggering document, either it's either a Notice of Entry, or a file stamped copy of the order showing the data was served. In McKenzie, the judgment of dismissal following a demur was stamped, and it was attached to a proof of service. But McKinsey waited more than 60 days to appeal. But wait, McKenzie urged that the judgment and certificate of service were defective, and so could not trigger the 60 day deadline to appeal because the three reasons actually the certificate of mailing was signed with an illegible scribble court said, Well, we can read it. Okay. And besides, even if we couldn't, there's no rule that says that we have to be able to read the signature. So that argument didn't work. McKenzie also argued, well, well, the file stamp on the judgment wasn't signed, you know, sometimes you see the file stamp has a signature on it. Now, there's no requirement that the stamp be signed, even if sometimes the clerk has a practice of signing and that's not required under Rule 8.104. And then the final argument that McKenzie raised to try to save her appeal from being untimely. The certificate of mailing only says that the proposed judgment was served, not the actual judgment. And the court says that would have been a good argument if it was right. But it does say that it served a judgment that we don't know what you're talking about. So the appellants effort did not succeed, but I note that she was right to scrutinize this document to try to Find some defect tried to find some way that it didn't qualify as a triggering document under Rule 8.104, especially the file stamp order triggering document because there, there are a lot of quote requirements there actually that need to be met, it has to be signed, a signed order has to be stamped, it has to be accompanied by a proof of service certificate of mailing. And it all has to be in the same document. It can't be, you know, all piecemeal under Allen versus American Honda. And so if you miss any one of those requirements, you have a good argument that that's not a triggering document, the 60 days doesn't apply, you have the full 180 days to file your notice of appeal. That's why I think a Notice of Entry is a much cleaner way to start that period. Yeah, cases
Jeff Lewis 15:41
great checklist of what to look for. And it's a good example of why AI is not coming to replace you anytime soon, is you really need a lawyer to look at these checklists and the document to understand whether or not the deadlines have been triggered or not.
Jeff Lewis 15:53
Yeah, sometimes you really do have to spend quite a bit of time to figure out what is the deadline to appeal. So again, the best practice as we talked about earlier, it's really, really best to just file within 60 days, even if you think you have longer Why risk it? Yeah. Okay. Okay, Jeff, two more cases, and he's maybe gratefully to our audience do not involve file stamps or rule record a point 104 finally going to try something a little new. We're gonna talk about a Supreme Court California Supreme Court decision in people versus strong. The rule here is that a mere procedural error is not a miscarriage of justice. Now, sometimes, you know, my take away from people versus strong is that sometimes even appellate justices get annoyed by the rules of appellate procedure. In People vs. Strong apparently, the entire panel would like to have affirmed this denial of a resentencing petition filed by Eric Green, who was convicted in 1993, for his part in the murder of Richard Schell Erdene had served as a getaway driver and urged the gun man to shoot him shoot him, which the gunman did fatally. But the Supreme Court held in people versus strong, that earlier findings held that the earlier findings that a criminal defendant was a major participant and showed reckless indifference we're not binding because recently, the court has relaxed those standards. So there's a new rule there's there needs to be a new determination of those issues of those factual findings. So upon filing of a resentencing petition and alleging that he could not be convicted of murder under the newly relaxed standards, or again, is now entitled to re sentencing. Justice Gilbert writing for the majority concludes it is checkmated by strong this was in the in the Court of Appeal opinion. But Justice Kenneth Uragan is not going quietly, He lodged a dissenting opinion that says that well, yes, it's true under the doctrine of Starry decisis, quote, I must follow the rulings of the Supreme Court. And if that court wishes me to jump off a figurative Polly, I lemming like must leap right after it. However, Justice Kagan goes on, I reserve my First Amendment right to kick and scream on my way down to the rocks below. So here's how justice Egan would have gone about affirming the denial of re sentencing. He says respectfully, there is another way to discharge our duty at the California Court of Appeal. That is to say the California Constitution admonishes us not to reverse an order unless there is a miscarriage of justice. And he says that here there is no miscarriage of justice, because there is only a procedural error. It does not matter that appellant quote checked the box stating he could not presently be convicted of murder. This statement is false. And because Justice Kagan concludes that appellant had falsely checked the box, a new round of litigation, which triggered a new round of litigation. He concludes this is a poor idea stemming from the declared false premise majority against sympathizers but thinks that operative precedent indicates that the error is structural, and indicates it's hoped that the Supreme Court will offer further guidance on whether these section 11 72.6 evidentiary hearings in felony murder convictions are ever subject to harmless error analysis. So my comment on this, Jeff, is that I thought it was odd that the court assumed the right at issue is structural, and apparently despite a clear articulation of such a rule by the Supreme Court, because in another recent case, last year in People vs. Whitmore the appellate court held that a right to an in person jury trial was not structural, even though it's hard to imagine a more textbook example of a structural right of procedure. So I just find the rule about what counts as structural and per se reversible error and what is subjected to the harmless error analysis is sometimes it seems a little bit arbitrary. Yeah,
Jeff Lewis 19:46
yeah, no, I can see that. And let me say, I read justice Egan's dissent. And I gotta tell you, I come out in favor of the majority here and super concerned anytime a justice is talking about an amorphous rule like not reversing unless there is a miscarriage of justice as a standard for when and whether follow binding precedent. It's concerning. I'm glad the result turned out
Jeff Lewis 20:10
the way it did here. Yeah, I sympathize with that. I just think it's strange that there is because there is a subsequent relaxing in the standards. That means that what that all these convictions need to be they're all going to be subjected to re sentencing motions and new trials. It seems strange to me that something about that seems upsetting of the rule of finality of judgments.
Jeff Lewis 20:29
Yeah, unless you're the criminal defendant who was sentenced one too late to benefit from the rule.
Jeff Lewis 20:34
True. Sure. Okay, one last case before we move to some appellate and legal tidbits, and that is I wanted to cover the the second district decision in Sipho versus lift that indicated we are not bound by the US Supreme Court Viking River decision. This was a California court of appeal decision saying that we are not bound by the US Supreme Court. Commentators have predicted that California appellate courts might start thumbing their nose at the United States Supreme Court 2002 holding in Viking River and thumb its nose is just what the second district did in cipher versus lift. In that case, the employee argued that Lyft had intentionally misclassified drivers as independent contractors rather than as employees, and argued that Lyft should could not enforce their agreement to arbitrate representative paga claims. The parties agreed that the individual claim had to be arbitrated. But what about the representative packet claim? The US Supreme Court held that once an individual claim is relegated to arbitration, there was no longer any standing a maintain a separate representative action in real court. But the California Court of Appeal disagreed with the US Supreme Court to repeat a California Intermediate Court overruled the US Supreme Court at least when it comes to standing in the California court. On what basis did the second district do this? Here's what it did it quoted as Justice Sotomayor recognized in her concurring opinion in the Viking river cruise case PACA standing is a matter of state law that must be decided by a California courts. Until we have guidance from the California Supreme Court. Our review of pega and relevant state decision authority leads us to conclude that a plaintiff is not stripped of standing to pursue non individual packet claims simply because his or her individual packet claim is compelled arbitration and quote, so Jeff, here was my comment after I read the cipher versus lift case, and I thought it took a bit of pluck for a state appellate court to disagree with the United States Supreme Court, one can disagree with the reasoning of Viking River. And as it concerns state substantive law, as a second district notes, we are not bound by a US Supreme Court interpretation of California law. I just thought it was strange that here on the issue of standing is at best only, arguably a question of substantive law, in my view, and and I may be wrong on this. And some people in the comments when I posted about this case, you know, really disagreed with me. I just thought the practical problem is that if California courts hold that employees have standing to bring representative PACA claims, even while their individual claims are relegated to arbitration, while the US Supreme Court holds there's no standing, then California courts deciding such claims would no longer be subject to US supreme court jurisdiction. In other words, the US Supreme Court has Marbury itself out of representative packet claims while California courts thus far have not. It just seems strange. I have no, I don't really have a dog in the fight. Obviously, I don't have a preference on the substantive issue. I just think it's strange that state courts and federal courts would have different rules of standing.
Jeff Lewis 23:40
Yeah, I concur with your assessment of clunkiness is super interesting. And yeah, this is not gonna be the final word on this issue.
Jeff Lewis 23:49
Yeah. But as as commentators more learned than I in this arena have pointed out to me, this result has been expected and anticipated after the Viking river cruise and that Justice Sotomayor is probably right, pointing out that the Viking river cruise comments about standing really are dicta. And this was really an area issue for the California courts to hash out which they will do soon, I believe in these Adolph versus Uber case, which I think is coming up for oral argument just in a couple of weeks here. We're recording this April 28 2023. So I think within who knows how long it takes for it to rule on it, but sometime later this year, we'll we'll be able to report to our listeners on the outcome, that ultimate issue about the standing of pega representative claims in California courts. Yeah. All right, Jeff. Let's give it a rest on the case review for this episode and move on to some news and tidbits.
Jeff Lewis 24:42
Yeah, I'm gonna steal one from you here that you have put into our show notes about the bill proposed Senate Bill 365, which would put an end to a legal loophole and forced arbitration cases where corporations are able to automatically delay court proceedings. proceedings are stayed during the pendency of an appeal on a denied motion to compel arbitration. Senate Bill 365 is one of the shortest proposed laws I've ever read. It merely states that right now affecting of appeals on a denied petition to compel arbitration stage further trial court proceedings. And this would change the law. I'd say it's not staid. And yeah, it's interesting because, you know, employees who have to wait three to five years for an appeal litigation, they don't have the wherewithal to wait a long time to litigate their claims against former employers, because corporations have much more wherewithal and patients and lawyers. So if this bill is passed this 365, it's going to be interesting in terms of the power dynamics and settlement of employment claims. And it's also going to have an interesting impact on the interplay between trial court proceedings and appeals happening concurrently. You could get a case that proceeds down discovery MSJ, even pre trial and even up to the date of trial, and the Court of Appeal at the last minute orders the parties arbitration.
Jeff Lewis 26:03
That's right. Yeah, that's interesting. So this deals with the case where an employee or a consumer has filed an action in state court, and the company files a motion to compel it to arbitration, that motion is denied. The company appeals, it appeals that determination. And ordinarily that is stayed and the plaintiff has to wait around for two years for that appeal to shake out this Senate Bill 365 would reverse that so that the litigation proceeds despite the appeal.
Jeff Lewis 26:30
Yeah, by the way, the news of the press about this, and in terms of the sponsors, couch this in terms of corporations and employment claims or consumer claims with the proposed bill is pretty vanilla. It's all petitions to compel arbitration, whether or not you're the corporation or the employee or whoever that's seeking to compel arbitration.
Jeff Lewis 26:47
Sure. Yeah. Although it's usually perceived that the well heeled are most excited about the rights to arbitrate, in principle, like, it sounds fine. But what about the practical upshot, which would be that the reason that these orders denying motions to compel arbitration are appealable is because unless it's reviewed immediately, the right to arbitrate is forever lost. Because once you go to trial and everything, the whole benefit of arbitration, a speedy and expensive alternative to litigation is gone forever. Isn't it gone forever? If you don't get that stay? Yeah,
Jeff Lewis 27:18
yeah, I would say that's right. And I would say if this law were passed, you might say see some fewer extensions of time, and accelerated record preparation procedures and these types of cases.
Jeff Lewis 27:30
Yeah, I wonder if it has to be entitled to priority at that point. It's become priority appeals. And so now, now, not only do the parties who want to compel arbitration, have that procedural tool, but they also get to, in a sense, jump the line in the Court of Appeal and have those issues decided before everyone else. Yeah, yeah. Petitions for supersonic? Yes, that's right. Yeah. That was my other thought is that maybe that that would be the rejoinder that? No, it's if there is substantial merit to that appeal. And the Court of Appeal is persuaded that yeah, it's likely that the appellant is going to be successful, then they could issue a stay of the trial court proceedings. That is an interesting Senate Bill. That's one to watch. Yeah. And then there are real proposals. Yeah, yeah, there were this is credit to Ben Schatz for pointing this out appellate rule proposals are now out for comment. The Judicial Council is invited comment on six proposed changes affecting appellate rules. Included among those are is a rule that changes that would change the notice of appeal form to allow the attorney to join the appeal. So what's contemplated here are appeals from an order granting sanctions against the client or the attorney, in which case we have seen cases. Yeah, you and I have reported on cases where a notice of appeal from such an order that appeal may be dismissed if the sanctions order is against the attorney, but the notice of appeal is filed on behalf of the client who is not aggrieved. It's only with the attorney who's the aggrieved party. So to get around this problem, it would specifically have a place for the attorney to join in the appeal. Where that appeal involves it makes the attorney an aggrieved party as well. And another rule would highlight would amend the form notice of appeal to highlight the requirement to specify the date of the order being appealed. You know, Jeff, you and I comment on a lot of appeals where that form notice of appeal is filled out incorrectly, it fails to to identify the order being appealed. It fails to including identifying it by date. And so it would, you know, highlight make sure that the person filling out that form does not forget to identify by date, the the order being appealed. All right, next on the list of tidbits, California courts have spent nearly half a billion dollars last year on court reporters, but it's still not enough. This was also via Ben Schatz and again, all of these cases and tidbits will be included in our show notes. So we've reported Jeff about the court reporter shortage crisis and how it's no longer a budgetary issue. There is enough money to pay for court reporters and get more court reporters. The problem is there just aren't enough new entrants into the court reporter profession so they are hard to find hard to retain we're getting the more court reporters retire the new court reporters entering the profession. So as kind of a book end to this story about the California legislature in the court system, throwing more money and offering bonuses retention bonuses to court reporters, if a court reporter is not available. Despite all this, these funding increases, Senate Bill 662 proposes to allow electronic recordings to create the appellate record. Stiff court reporter lobby opposition is expected. But this is something that we saw this back in the 90s. We've talked about this Jeff on the podcast about the electronic recording initiative that was started back in the 90s. It was ultimately killed. We only now have a remaining electronic recording system in some juvenile and limited civil proceedings. But otherwise, you have to get either a court reporter to get a verbatim transcript by a certified shorthand reporter or a settled statement or an agreed statement. And that exhausts your options to get to send up an oral record of the proceedings to the Court of Appeal. But if Senate Bill 662 passes, then we may have electronic recordings back on the table that could be interesting option given we have all this shiny new equipment for zoom in all of our courts, everyone is miked up, and it's got a camera in front of them. Only thing standing in the way is legislative authorization for the clerk to hit that big red record button. And then we've got a very competent electronic recording of the proceedings that could be handed off to a court reporter after the fact if it proves that an appellate verbatim record is needed.
Jeff Lewis 31:42
Yeah, that's a great, great development. I hope it passes access to justice issue in terms of appellants of moderate modest meets means needing an adequate record for review. Yep, yep. Hey, I'm gonna go out of order here pick up another tidbit I want to talk about today. And that's about one of my favorite topics, Tim, the use of cleaned up as a parenthetical signal I got via LinkedIn, there's an author, we'll put her name in the show notes have pointed us to a Utah appellate court criminal law decision. It's a state of Utah versus patent. And in that criminal decision, it's a footnote directing appellate practitioners on the do's and the don'ts of how to use cleaned up. I didn't realize that cleaned up had been abused in this fashion. But apparently this Court was concerned that some folks were using cleaned up well, from unpublished sources that are not be readily available on the internet and voting. Aaron senticles are parenthetical quoting from cases saying things in parenthetical as opposed to directly quoting the court. And so this footnote is a great guideline to say look cleaned up is really supposed to just be used to clean up periods, commas, brackets, internal citations, those kinds of things, not to rewrite sentences, and certainly not to quote from sources that are not readily available. So I think this footnotes a great reference for anyone who regularly uses cleaned up on the do's and don'ts.
Jeff Lewis 33:08
Yeah, that's right. So now we can have a footnote to your cleaned up. parentheticals. Explain how it's properly done. Right. Okay. Here's a quick one. It's official now AI has passed the uniform bar exam of GPT for the upgraded AI program released earlier this month by Microsoft back to open AI scored in the 90th percentile of actual uniform bar exam test takers. Yep. So So there you have it, you know, AI, write your briefs, and you would be in the upper 90th percentile. A recent bar exam passers? Yep, you're come Skynet. That's right. Another one. Here's here's one tidbit along the lines of one of my hobby horses about summary affirmance is or summary denials. The Supreme Court of the United States has again denied certiorari from a petition seeking review of the Federal Circuit's practice of summarily deciding appeals without written reasons, because I thought this was interesting, Jeff, the petition was only the most recent legal challenge lodged over the Federal Circuit's manner of deciding appeals without commenting on them whatsoever. And we talked about this when we had Lindsey Lawton on the show from Florida and talked about the practice there of summarily affirming appeals and how disheartening it can be to do all that work. And all you get is a per curiam affirmed. But continuing on with this tidbit from the Federal Circuit. At a recent conference, two federal circuit judges defended the courts practice. They asserted that such summary decisions are appropriate in cases where the standard of review is for substantial evidence and where the appellants fatally misunderstand that standard. I can sympathize with that further because the Federal Circuit allows oral arguments in every case that should be enough as Judge Sharon Post said, quote, once you had oral argument, I think you'll agree that you can rest assured that the judges understand your case and spent a lot of time on it. And quote, I wasn't so sure about that. I'm not always satisfied that after oral argument that oh, yeah, I've I've gotten everything I deserved. And sometimes I see them checking their watches or watching the clock on the wall, waiting for me to sit down and be done. But I do sympathise that there are some appeals that gosh, really don't merit a whole lot when it comes to affirming. Like where the judges said here. The review is for substantial evidence. The appellate willfully misunderstands the standard doesn't supply a complete record doesn't say to all the evidence that support the judgment, I can see judges getting exasperated having to write you know, full thorough will articulate doing a better job than the appellant did in reasoning through the the issues. Yeah, yeah. All right. Jeff, do you have anything else you want to share? Should we cap it there?
Jeff Lewis 35:53
I think that's a good place to cap it.
Jeff Lewis 35:55
Okay. All right. Well, that's gonna wrap us up. Once again, as Jeff said at the top, we want to thank casetext for sponsoring the podcast. And when each week in our show notes, we include links to the cases that we've discussed, we always use casetext for the daily updated database of case law statutes, regulations, codes, and more listeners of the podcast will enjoy a special discount on case Tech's basic research at casetext.com/calp. That's casetext.com/calp.
Jeff Lewis 36:24
And if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. See you
Jeff Lewis 36:35
next time.
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Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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The film production in which a prop-gun-wielding Alec Baldwin fatally shot the cinematographer spun off a civil lawsuit in Salveson v. Kessler (9th Cir. Mar. 29, 2023) 22-55472 (nonpub. opn.). But as the 9th Circuit holds, the civil case—involving a producer’s claims concerning his former lawyer’s business and tax practices—holds out no issues of public interest.
So uninteresting were the claims, in fact, and so devoid of protected conduct, that Judge Bress separately concurred to muse why this appeal should have sucked up a year of everyone’s time, while the case languished under a pointless appellate stay.
Judge Bress pointed out that the anti-SLAPP law, and the immediate right to appeal from denials of anti-SLAPP motions, are procedures specific to California law. The 9th Circuit has its own procedures, and under those procedures, there is no immediate right to appeal from SLAPP denials. (There is no federal SLAPP procedure at all, for that matter.)
“This piecemeal appeal, which our precedents unjustifiably allow, has resulted in a totally meritless anti-SLAPP motion delaying this litigation by nearly a year. That is neither sound as a matter of law nor sensible as a matter of litigation management.”
Judge Bress’s concurrence is not the first time he has sounded this view. He raised it in the Flo & Eddie, Inc. v. Pandora Media, LLC case in 2022 (discussed here). Judge Bress there noted that:
The 9th Circuit rule here—allowing immediate appeals and appellate stays after denials of anti-SLAPP motions—may be modified only upon U.S. Supreme Court decision or by the 9th Circuit sitting en banc. It is safe to say that Judge Bress is a reliable vote to overturn the rule.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.