One of the nice things about bench trials is that there is no need for jury instructions and verdict forms, which can be very laborious to prepare. In a bench trial, instead of a verdict turned in by the jury, the parties get a statement of decision turned in by the judge. But what happens when the judge fails to make findings on material issues in the case?

A helpful illustration of how to set up a strong technical argument on appeal is found in Legendary Builders Corp. v. Grovewood Properties, LLC (D2d4 Oct. 5, 2021) 2021 WL 4550995 (nos. B297299, B301777) (nonpub. opn.). By raising an omission in the statement of decision in the trial court, the appellant was able to obtain a reversal on appeal.

Following a 15-day bench trial in a dispute between a general contractor and a condominium developer, the trial court issued a statement of decision denying the contractor-appellant recovery. But the statement of decision failed to make any specific findings on the appellant's discrete claims based on two months' work for which the respondent-developer never paid.

The Appellant Preserved the Omission in the Statement of Decision by Raising It at the Hearing on the Tentative:

The respondent argued the omission was waived. The omission in the statement of decision was not brought to the trial court's attention, and besides, the trial court addressed this exact point during oral comments at a hearing concerning the tentative decision.

The Court of Appeal reversed. The court noted that the record reflected that the asserted deficiency in the Statement of Decision “was brought to the attention of the trial court ... prior to entry of judgment” as required under Code of Civil Procedure section 634. (Code Civ. Proc., § 634; see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)" Specifically, at the hearing on the tentative Statement of Decision, counsel for the appellant stated: “One thing the tentative doesn't address are the moneys due to Legendary ... [on] Pay Applications 21 and 22.”

Raising this omission at the hearing concerning the tentative was sufficient. Accordingly, the issue in dispute was not forfeited, and the doctrine of implied findings did not apply. (See In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 1133-1134.)

(Note: The reason this caught my eye is because it was not clear to me that raising an omission orally was sufficient — my practice is to raise them in a written request for a statement of decision, and also in objections to the statement of decision. The court here held it was sufficient to raise the omission just once, and orally. I found that surprising.)

The Trial Court's Oral Comments Do Not Modify the Statement of Decision:

The respondent next argued that the trial court adequately addressed the omission by its statements at the hearing on the tentative. The Court of Appeal categorically rejected this.

"We acknowledge the trial court's remarks from the bench suggest it was not inclined to award Legendary relief on Pay Applications 21 and 22 based on its “evaluation of the credibility of evidence presented by Legendary.” Those “oral comments,” however, “were not final findings” on the matter. (Key v. Tyler (2019) 34 Cal.App.5th 505, 539, fn. 16.) “This is because a trial court retains inherent authority to change its decision, its findings of fact, or its conclusions of law at any time before entry of judgment and then the judgment supersedes any memorandum or tentative decision or any oral comments from the bench. [Citations.] Thus, a trial court's pre-judgment oral expressions do not bind the court or restrict its power to later declare final findings of fact and conclusions of law in the judgment. [Citation.]” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268.)"

Finally, the court held that the omitted findings were “findings on a material issue which would fairly disclose the trial court's determination[.]” (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.) The court concluded they were.

An Important Practical Note on Remand:

The court reversed and remanded, directing the trial court to determine, "upon the existing evidentiary record," whether the appellant was entitled to findings in its favor. Given the judge's prior comments, likely no one expects the judge to cure the omission in a manner favorable to the appellant. A successful appellant may make a peremptory challenge to the trial judge following reversal on appeal under Code of Civil Procedure section 170.6(a)(2), but only where the same judge is assigned to conduct a new trial. Here, no new trial was directed by the appellate court.

So while omitted findings may be a strong technical to raise on appeal, as a practical matter, the appellant needs to be prepared to win the issue on the merits.

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.

One of the many ways the deck is stacked against appellants on an appeal has to do with the implied findings doctrine. What is the implied findings doctrine? It says that even if the appellant is absolutely correct that the trial court did, in fact, fail to make the findings necessary to support the judgment against the appellant, the appellant still loses: the Court of Appeal will pretend the missing findings are there anyway.

So the respondents in Nielsen v. MacPherson (D4d3 Oct. 8, 2021) 2021 WL 4704890 (no. G059758) (nonpub. opn.) must have been feeling pretty buoyant about their chances on appeal. The plaintiff-respondents had defeated an anti-SLAPP motion, and then obtained a rare award of attorneys' fees. Awards of fees against anti-SLAPP movants are only available where the anti-SLAPP motion is frivolous or filed to cause unnecessary delay. (Code Civ. Proc., § 425.16(c)(1).) No such finding was made here, but the respondents argued it should be inferred under the implied findings doctrine.

The Court of Appeal disagreed. On the one hand, the court acknowledged it is true an appellate court usually infers the trial court made every implied finding necessary to support the order and review those implied findings for substantial evidence. (See Kulko v. Superior Court (1977) 19 Cal.3d 514, 519, fn. 1; Murray v. Superior Court (1955) 44 Cal.2d 611, 619; Chin v. Advanced Fresh Concepts Franchise Corp. (2011) 194 Cal.App.4th 704, 708; Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1567.)

But on the other hand, the court noted that "[c]ase law is consistent in holding that some appropriate express findings are necessary to infer implied findings in cases in which attorney fees are imposed as sanctions." In support, the court discussed Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, at pp. 1070-1071, fn. 19 [implied finding of bad faith based on an express finding of frivolousness]; In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 143, 145 (Taeb) [same, and including "thorough recitation of the conduct for which the sanctions were imposed"]; and Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 683-684, fn. 6 [though lacking express finding of frivolousness or unnecessary delay in awarding fees against anti-SLAPP movant, implied finding warranted because trial court's written tentative quoted section 425.16(c)(1), (2), stated that defendants had failed to respond to plaintiffs' argument that motion was frivolous, and stated plaintiffs were entitled to a monetary sanction under section 425.16(c)(1)].

(Note: For a related proposition, practitioners might also consider citing Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718. Sidney reversed a trial court's denial of a motion to amend a cross-complaint. The respondent argued the denial was based on an implicit finding the amendment was sought in bad faith. But the appellate court declined to infer that finding because "here, the trial court made clear in its written ruling...that its order denying petitioner leave to amend his cross-complaint was exclusively based on its erroneous holding that the statute of limitations had run....")

The court concluded the section 425.16(c)(1) fees were not supported even by the relatively paltry standard represented by Chitsazzadeh. The trial court did not issue a written tentative ruling. And at the hearing, the trial court did not mention section 425.16(c) or section 128.5, and did not even hum a few bars about sanctions, attorneys' fees, frivolousness, or intent to delay. Instead, the trial court's order simply stated, after denying the anti-SLAPP motion, "The court also finds that the Nielsen parties are therefore entitled to reasonable attorney fees per CCP § 425.16(c)." (Italics added.) As the Court of Appeal noted, "Use of the word “therefore” signifies that denial of the anti-SLAPP motion was the reason for awarding the [respondents] reasonable attorney fees."

"We cannot conclude the trial court made implied findings on frivolousness or intent to cause unnecessary delay because nothing in the record suggests the court even considered those issues."

The respondent also argued that the appellants had forfeited any challenge to the order because the appellants had not objected to the insufficiency of the order. The court disagreed. The trial court provided "reasonable specificity." (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1389). It's just that the trial court's reasons were wrong. The appellant does not have to object before arguing that.

Upshot: Be mindful of the implied findings doctrine, but do not be defeatist about it. The doctrine probably will only apply to the extent it is consistent with the trial court's reasoning. The Court of Appeal will be less inclined to deploy the doctrine to rewrite the trial court's decision. If you are in doubt, this may be an issue to discuss with an appellate attorney.

Trial attorneys are familiar with the three common standards of appellate review: substantial evidence, abuse of discretion, and de novo. But what standard of review applies when an unsuccessful plaintiff appeals? When the plaintiff is arguing that the trial court should have found its evidence more persuasive, a fourth standard of review applies, something like a summary-judgment standard, in which the appellate court must be satisfied the plaintiff's evidence is so compelling that the plaintiff is entitled to a finding as a matter of law. This is a very difficult burden to overcome, and so it is rarely attempted, and even more rarely met.

But the plaintiff met the high finding-compelled-as-a-matter-of-law standard in King v. May-Wesely (D5 Oct. 22, 2021) 2021 WL 4929912 (no. F080224) (nonpub. opn.). The plaintiff was the holder of a $12 million judgment against the defendant judgment-debtor, and alleged the debtor had engaged in fraudulent transfers of his wealth. The trial court entered a judgment for the debtor, finding the plaintiff failed to adduce any evidence of fraudulent intent. But the Court of Appeal held the evidence compelled a judgment for the plaintiff as a matter of law.

Failure-of-Proof Determinations and the Finding-Compelled-as-a-Matter-of-Law Standard of Review:

Here is how the court described the standard of review that applies to a trial court's determination that a party did not carry its burden of proof:

“[I]t is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.... [¶] [W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ ” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528; see Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.)

"Thus, the finding-compelled-as-a-matter-of-law standard applies to a trial court's determination that a plaintiff failed to prove a particular element of a cause of action."

Here is another statement of the standard as compared with the substantial-evidence standard:

The substantial evidence standard “ ‘is typically implicated when a defendant contends that the plaintiff succeeded at trial in spite of insufficient evidence.’ ” (*Sonic*** Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465; In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved of on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989.) “ ‘In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.’ ” (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.)

Thus, on appeal, the plaintiff-appellant has to meet something like a summary-judgment standard by establishing its evidence is so overwhelming and uncontradicted that the plaintiff was entitled to a judgment as a matter of law. This is a very difficult standard to establish.

The Defendant's Stipulation to Insolvency and Transfers Lacking Reasonably Equivalent Value Established Constructive Fraudulent Transfers as a Matter of Law:

The plaintiff sued for both actual and constructive fraudulent transfers. The 2015 Uniform Voidable Transactions Act (UVTA; Civ. Code, §§ 3439–3439.14) makes a transfer voidable as to present and future creditors if it was made “[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor.” (§ 3439.04, subd. (a)(1).) Even without actual fraudulent intent, a transfer is voidable as to present creditors under the constructive fraud test. (Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2021) ¶ 3:326, p. 3-131 (Enforcing Judgments).) Subdivision (a) of section 3439.05 provides a transfer may be voidable where the transfer was made or obligation was incurred when the debtor does not receive reasonably equivalent value in exchange, and at a time when the debtor was insolvent.

After trial, the trial court found the plaintiff had failed to adduce any evidence of defendant's fraudulent intent. But the Court of Appeal noted this did not address the plaintiff's claim for constructive fraud. As to that theory, the defendant had stipulated that his obligation on the judgment always exceeded his assets. The Court of Appeal held this alone established insolvency as a matter of law.

As to the other element to establish constructive fraud, the court held that the defendant's transfer of his shares in his bee-keeping business to his wife for no consideration was without reasonably equivalent value in exchange. Similarly, his transfer of $170,000 in cash for a mere 2% interest in a house was not reasonably equivalent value in exchange.

The court reversed and remanded to the trial court to enter a judgment voiding the transfers.

Tip: If you are the successful defendant responding to the plaintiff's appeal, keep the finding-compelled-as-a-matter-of-law standard in mind. Unsuccessful plaintiffs sometimes think the substantial-evidence standard of review applies. But as the authorities indicate, this is not only incorrect, it is misleading. It is not enough for the plaintiff to point to the defendant's evidence as insubstantial: the plaintiff must show it met its burden by uncontradicted and unimpeached evidence. This almost never happens.

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.

Clients want success. But: What is success?

Outside general counsel Lee Goldberg tells Jeff Lewis and me what this means for the businesses he represents. Success is perception, and effective counsel manages the client's perceptions. Lee concludes by observing that the successful attorney is successful through communication, not by being the hero who swoops in and solves everything.

Watch the clip here.

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

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

The Los Angeles Superior Court has relaxed its dress code for attorneys making virtual court appearances, and need not wear jacket or tie. Orange County Deputy District Attorney Kelly Ernby discusses the new rule with Jeff Lewis and me, and we all agree: Just because the rule has changed does not mean the judges' expectations have changed.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 16, available here.

Appealability is a jurisdictional question. A jurisdictional question is one that the law answers either one way or the other, and there is nothing the court can do about it. So when a court answers a jurisdictional question with, "under the circumstances," that is a clue that something strange is going on.

That is how the court answered the question whether an order denying a motion to vacate a conservator's final account in Hudson v. Foster (D2d5 Sep. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4059808. While the order settling an account of a fiduciary is appealable under Probate Code section 1300(b), an order denying a motion to vacate on equitable grounds generally is not appealable. (Kalenian v. Insen (2014) 225 Cal.App.4th 569, 575–576 (Kalenian); Estate of Baker (1915) 170 Cal. 578, 581–582 (Baker).) (Already the word "generally" is problematic.)

But in this case, the appellant-conservatee urged that his conservator had concealed information. Owing to that concealment, the appellant effectively was deprived of the opportunity to appeal directly from the order approving the account.

The Second District Court of Appeal agreed. "Under limited circumstances, however, a probate court order denying a motion to vacate on equitable grounds is appealable. (Kalenian, supra, 225 Cal.App.4th at p. 577.) If the judgment or decree was final and appealable, then an order refusing to vacate the judgment or decree is appealable “when, for reasons involving no fault of the appealing party, he has never been given an opportunity to appeal directly from the judgment or decree.” (Baker, supra, 170 Cal. at p. 582.)

The Hudson court did not mention this, but there is authority that holds an order denying a motion to vacate is appealable where the circumstances wrongfully deprived the appellant of the right to appeal from the underlying order. Such as, where, due to duress, the record did not disclose the grounds for appeal. (Marriage of Brockman (1987) 194 Cal.App.3d 1035, 1043; Cope v. Cope (1964) 230 Cal.App.2d 218, 228-229.)

The probate court had concluded, incorrectly, that the appellant's access to information meant he ought to have discovered the alleged concealment. The Court of Appeal held this was the wrong standard because he conservatee is entitled to rely on information in a conservator's report as being accurate. A conservatee's "mere access-to-information did not trigger an obligation to comb through the records to verify the truth of [the fiduciary's] representations."

Comment: The large number of exceptions to the nonappealability of orders denying motions to vacate undermine the notion that appealability is jurisdictional. Perhaps the Supreme Court or the legislature should consider offering clarification.

What was it like to give the first virtual oral argument in the California Supreme Court? Orange County Deputy District Attorney Kelly Ernby tells appellate attorneys Jeff Lewis and Tim Kowal what that experience was like.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 16, available here.

When a court orders a party to move out of a residence, that is a mandatory injunction, which is automatically stayed upon appeal. But if the court also orders the sale of the property, the order is stayed on appeal only if a bond is given. And if the parties later stipulate to a different order, then the appeals of both of those orders are moot.

That is the thumbnail of Tearse v. Tearse (D1d4 Sep. 22, 2021) 2021 WL 4304761 (no. A158582) (nonpub. opn.). The really unusual thing about this case is how the court treated the respondent's argument that the appeal was moot. The court agreed, but was also concerned that it would operate to affirm a trial court's order that was void because entered after an automatic stay. So the court reversed that order as moot. That, surely, is not how the respondent expected his mootness argument would be taken. Be cautious with mootness arguments.

The Tearse case has been a long and litigious affair. After the marital-property division trial here following five prior appeals, the court awarded the marital home to the respondent husband, conditioned on making an equalization payment within 60 days, or else sell the property. Upon receipt of the payment, the appellant wife was ordered to move out. The wife appealed.

After the appeal, the respondent moved for a different order. The respondent argued he couldn't get refinancing with the house the way it was, and wanted the wife to move out so he could make repairs. The court issued a writ of possession. The court denied the wife's ex parte application for a stay. The wife appealed that possession order as well.

Finally, the wife and husband entered into a stipulation extending her move-out date. The stipulation was entered as an order.

So now there are three orders. The Court of Appeal took them up in turn.

The Move-Out Order Is a Mandatory Injunction That Is Automatically Stayed on Appeal:

The appellant argued a move-out order is a mandatory injunction, and mandatory injunctions are automatically stayed on appeal. She is right about that. “[C]ommanding [a party] to vacate the family home ... is in the nature of a mandatory injunction” and “[i]n the absence of a statutory provision to the contrary, the enforcement of a mandatory injunction is stayed by the perfection of an appeal ....” (Smith v. Smith (1941) 18 Cal.2d 462, 465.) This is also supported under Code of Civil Procedure section 916, subdivision (a), which provides as follows: “Except as provided in Sections 917.1 to 917.9 ... the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order.”

So the move-out order was automatically stayed.

But the Order to Sell Real Property Is Stayed on Appeal Only Upon Posting a Bond:

But the analysis went the other way when the court moved to the part of the order requiring the sale of the residence. There is a statutory exception under Code of Civil Procedure section 917.4. Section 917.4 applies to orders to sell or transfer real property, and in such cases, the appellant must post a bond to secure against waste. The statute provides “[t]he perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given ....” (Code Civ. Proc., § 917.4.)

Here, the appellant did not seek an order setting the amount of a bond, and did not post a bond. So the sale order was not stayed.

The Stipulated Order Mooted the Appeal of the Prior Orders:

During the pendency of the appeal, the appellant stipulated to extend the move-out date, and then in fact vacated the property and turned possession over to the respondent. This mooted the appeal.

“It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed.” (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1557.) “A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief.” (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.)

But wait. The Court of Appeal has already held that the move-out order was automatically stayed. That means the court's subsequent orders were void. Once a stay under Code of Civil Procedure section 916, subdivision (a) goes into effect, any later order issued by the trial court is void because it has been “divested of power to act on matters ‘embraced in’ or ‘affected by’ the appealed judgment or order.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 7:2.) If an appeal of such an order is dismissed by an appellate court (through a finding of mootness, for instance), the dismissal would act as an affirmation of a void order. (Id., ¶ 5:48.)

That means, the appellant went on, that if the court were to dismiss the appeal as moot, it would in effect ratify a void order. That can't be right.

The appellant has a point, the court conceded, that "there is a potential problem here" with leaving void order standing. "But that is why we paused at the outset to point out the applicability of a statutory exception to the general rule under Code of Civil Procedure section 917.4. To the extent [the appellant's] concern is that an implied affirmance on the merits of a validly entered order might somehow prejudice her going forward, we will make clear in our disposition that we are reversing the trial court's possession-related orders as moot because they have been superseded by the stipulated findings and order.... (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134–135; Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 942–947.)"

Comment: Note the unusual application of the mootness doctrine here. Typically, the subsequent events render the appeal moot. Here, the court held that the subsequent events rendered the appealed-from order moot. Surely this is not quite the outcome the respondent sought when raising the mootness argument. While the appealed-from order had been replaced by the stipulated order, the appealed-from order had been based on factual and legal findings by the trial court, and the Court of Appeal opinion here vacated them by reversing the order as moot. So to the extent the respondent might later seek to modify the stipulated order, his negotiating position has been materially affected by the appellate court's opinion here.

Mootness is a slippery doctrine. Sometimes it works. Sometimes it does not work. And sometimes, like here, it works the opposite of how you'd expect.

Filing an appeal is not hard. There is no particular form required. All that is needed is to identify the order you are appealing, and to file it before the deadline.

But as a recent case illustrates, you might not even have to identify the right order. As long as it is filed on time, the Second District held in Bennett v. Rivers (D2d3 Oct. 6, 2021) 2021 WL 4583844 (no. B301211) (nonpub. opn.), the rule of liberality is very forgiving.

The appeal in that case involved an order for prevailing party attorney fees relating to a domestic violence restraining order under Family Code section 6344. The appellant was unhappy with the order, and moved for reconsideration. The trial court denied reconsideration.

The appellant filed a notice of appeal. But in his notice of appeal, he identified the order denying his motion for reconsideration. But that is not an appealable order. It says so right in the statute. (Code Civ. Proc., § 1008, subd. (g).) The appellant did not identify any other orders in his notice of appeal. So that makes his notice of appeal fatally defective, doesn't it?

No, the notice of appeal can still be saved under the court's preference for liberal construction of notices of appeal. The appellant did eventually get around to identifying in his opening brief that he wanted to challenge the attorney fee order. And the respondent had not identified any prejudice that resulted from the defect in the notice of appeal. So "on account of our preference for appellate disposition on the merits rather than “hypertechnicality,” we will deem the appeal to have been taken from the underlying order denying the request for attorney fees. (Hughey v. City of Hayward (1994) 24 Cal.App.4th 206, 210; see also Crotty v. Trader (1996) 50 Cal.App.4th 765, 768, 771 [where in pro per appellant's notice of appeal stated appeal was taken from motions heard on date of motion for reconsideration, reviewing court would liberally construe notice to find date was a mistake and deem appeal to have been taken from denial of judgment notwithstanding the verdict]; cf. Morton v. Wagner (2007) 156 Cal.App.4th 963, 967–968 [reviewing court would not consider appeal of underlying order where notice of appeal identified only denial of reconsideration; observing “[c]are must be taken in drafting the notice of appeal to identify the order or judgment being appealed so as not to mislead or prejudice the respondent”].)

The respondent missed a trick here by not serving a notice of entry of the appealable order, i.e., the fee order. Recall that the appellant did not appeal the fee order. Instead, the appellant filed a motion for reconsideration and then waited for the order denying that motion before filing his notice of appeal. By that time, 113 days had passed since the entry of the appealable order. Had the respondent served a notice of entry of that order, it would have set up a 60-day deadline for the appellant to file his notice of appeal, so by the time he filed his appeal 113 days later, it would have been untimely. But because the respondent did not serve a notice of entry, the appellant had the full 180 days to take his appeal.

The order was affirmed anyway. But the respondent had to brief the merits, when she could have simply had the appeal dismissed early on. That is why it is important to spot the appealable orders early on. If you are unsure, consider consulting an appellate attorney.

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.

Lee Goldberg joins us for a discussion about his perspective as in house counsel. Lee shares decades of experience using litigators to solve business problems and offers advice for trial attorneys serving corporate clients. We talk about Lee’s recent video series on LinkedIn and his website CalLawyers.com, and what a general counsel looks for when hiring trial and appellate counsel.

Some of Lee's lessons:

On litigation objectives: " My client is never principle over business. Ever."
On the most common mistake litigators make: " [When] they think that they have the only answers. Sit back, listen to your client. That is the biggest error that I see."
On hiring the right litigation team: "White shoe firms have their place. ... [But] all of it has to do with my relationship with the litigators and the litigation firm. Because I will tell you this if I have a good relationship with them, then we coordinate and work together, they understand where I'm coming from, I understand where they're coming from, and that best serves the client in the long run. So no, it's not always the Gibson Dunn's, okay. It's not always the Reed Smith's that I bring into these deals. All right? Local, smaller, dedicated, smart counsel is what I look for."
On trial counsel handling appeals: "I will never have my trial lawyers handle my appeals. Ever, ever."
On success: " The thing that people keep coming back to is success. Understand something, success is perception. Success is not a piece of paper. Success is an emotional feeling that you give to the client that they did the best they could in the situation that they had."

Tim, Jeff, and Lee also cover recent cases discussing how to properly ask for discovery in response to a summary judgment, and applying the disentitlement doctrine to dismiss an appeal, including why it may be important to bring appellate counsel in to an appeal.

Lee Goldberg's website, LinkedIn profile, and YouTube channel. Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

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

Transcript:

Lee Goldberg: 0:04

Success is an emotional feeling that you give to the client that they did the best they could in the situation that they have.

Announcer: 0:14

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: 0:29

Welcome, everyone. I am Jeff Lewis.

Tim Kowal: 0:31

And I'm Tim Kowal operating under a probationary license from the California Department of podcasting. In each episode of The California Appellate Law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal.

Jeff Lewis: 0:59

And welcome to Episode 17 of the podcast.

Tim Kowal: 1:03

And today we welcome Lee Goldberg to the show. Lee is an outside general counsel with over three decades of experience in corporate litigation and legal guidance. And I expect Lee will correct us and tell us exactly he's got 34 or 37 or 62 years of experience. But I gotta tell you after three decades, Lee we stopped counting. We writes and speaks about legal issues that affect business owners and their attorneys, including a B five, and I'll have the editor insert a boo sound effect there, and other employment related matters. Lee's recent video series on LinkedIn and his website, cow lawyers calm is about preparing a business for sale. I watched the series and found that it contains advice that I think every business attorney will find useful for their business clients. So thanks for being here, really. And welcome to the podcast.

Lee Goldberg: 1:49

Thank you very much, guys. Great to be here with you.

Tim Kowal: 1:52

Now, if you would I read off a little bit of a bio for you but but if you would tell us tell our audience a little bit about yourself and our audience is mostly trial attorneys. So please introduce yourself to our audience.

Lee Goldberg: 2:04

Yeah, thank you, Tim. I've been in practice like you said for 35 years. I'm outside general counsel to a number of companies across a very broad spectrum of industries. as General Counsel we handle everything internal communications, internals, structures, internal organization, internal operations, but then we also handle everything between the company and all third parties, including regulatory including trade suppliers, trade contractors, and anything else that would affect the business from financial to marketing to operations.

Tim Kowal: 2:48

And Lee I also noticed that you've been very active on LinkedIn over the past year or so. And I wonder if you would comment a little bit about that I noticed that that every post that you that you put up there on LinkedIn gets you know gets about a dozen at least comments from other attorneys and I wonder I wonder how you do it. I wish I can get that kind of traffic I would I probably need to stop being so esoteric and my posts.

Lee Goldberg: 3:09

Well, I gotta tell you some number one, I love your posts. Because I learned so much I mean, it's outside of my realm of operations. But with respect to my stuff, I will tell you flat out I am a tech nerd idiot. I don't know anything about technology. The only social media I have is LinkedIn. I did not have LinkedIn I did not have a website. I did not have YouTube site until my marketing guy Gary Johnson also a very dear friend put that all together for me and he's just done a wonderful job. I get a lot of good response from that.

Tim Kowal: 3:46

Yeah, well he's done a great job and Gary promised me if we get his name in the podcast he give me a free buy one get one of Baskin Robbins. Gary Yomi

Lee Goldberg: 3:54

That sounds like Gary

Tim Kowal: 3:58

and we before you became an an outside General Counsel used to be a litigator that that understand that right

Lee Goldberg: 4:04

I was in a general practice I did both transactional and litigation when my clients asked me for it I've never took a client just purely litigation it was all handling client that experiences taught me we should stick to what we're best at. litigation was not what I'm best at and I watch you guys in absolute awe.

Tim Kowal: 4:28

Do you have any good good war stories from that your days when you were a litigator? or, or, you know, most important lessons learned?

Lee Goldberg: 4:36

Oh, well, the most important lesson learned is as outside General Counsel, I'm going to hire professionals Come and get it done. That's first of all. Second of all, here's what I've really learned. For me personally, I'm a business lawyer. I focus on business I focus on getting it done. I don't focus on process and process to me personally gets in my way. I cut through all the garbage and get to the end result. And I'll know right up front, whether I'm going to get to an end result I want in terms of litigation, it's it's a process that, for me is completely frustrated, I completely don't understand some of what I see is the form over substance and the expense created by the form over substance in order to get justice, if you will. I mean, at this point, guys, I look at the world of legal, transactional and litigation, what have you as there's no such thing as Justice, there's only dispute resolution, and you get the best dispute resolution people on your side, that's the way I look at it.

Tim Kowal: 5:44

I think that's great advice. We, I still get a lot of a lot of clients, and I have to have that conversation with them about the difference between getting justice and just really, what do you want? And don't tell me, you know, to vindicate a principle or you want justice, because that's just the name on the side of the building. You know, that's not what is actually dispense there.

Jeff Lewis: 6:05

Wow,

Tim Kowal: 6:06

That's my cynical view.

Jeff Lewis: 6:08

Holy smokes you two. What about the truth?

Lee Goldberg: 6:12

Yeah, well, truth justice, the America way? Well, I guess that belongs to Superman.

Tim Kowal: 6:18

Well, that gets this let us segue into the next subject I wanted to talk with you about and most attorneys probably have a vague idea of what General Counsel does and what it is. But my guess is that most of us attorneys don't really have a really good idea and accurate idea of what a general counsel is or does so in your experience, or what have you glean? What do you think trial trial attorneys and litigators think that General Counsel does versus the reality of what General Counsel really does?

Lee Goldberg: 6:44

Ah, I, I get a lot of weird questions about what I do. I will tell you, most attorneys, whether they're transactional or litigation unless they're specialized as General Counsel, they really don't understand what it is we do every single day. And the best way I can explain it is we are a C suite executive in the firm in the company. We operate with all of the other operating and corporate officers to essentially effectuate all their plans and organizations and operations for their business. We also sit, we handle the overview of all strategic planning for the business, both 123 510 and exit strategy planning years out. All right. And then third major category, which is how I'm involved with litigators, as we handle all or manage all dispute resolution. You can't operate a business these days without some dispute. You have to have the best guys around you now. If we can handle a dispute and resolution before it gets to litigation, that's certainly my preference. But if it gets to litigation, I choose litigators and bring litigators in that are specialized to handle those things. And that's, that's what we do in every every specific profession that helps a company is part of our job is to know the people that we can bring in to help whether financial accounting, sales, marketing, production doesn't matter. So knowing litigators, and knowing good appellate lawyers for litigation is actually part of my job. It has to be.

Jeff Lewis: 8:37

Hey, I've got a question. On a related note, as an appellate attorney, I'm interested to know as General Counsel, do you tend to favor the use of arbitration clauses? Or do you use private judging or good old fashioned Superior Court litigation?

Lee Goldberg: 8:54

That's really a great question, Jeff, because it's a very complex answer to what seemingly a very simple question, here's the deal. I hate arbitration provisions. absolutely hate them. No appeal from them. And I had a situation about 20 years ago, where we found after the arbitration, an actual conflict of interest that was not disclosed by the arbitrator that he had to disclose but did not disclose. We took that all the way to the California Supreme Court and loss because from court said, well, you chose arbitration Oh, well, okay. I can't I can't put my clients in that position at all. That being said, I favor alternative dispute resolution. A good mediator is worth his or her weight in gold. All right. It's It's It's a matter of positioning the dispute to get to that point. That's really where we're at.

Tim Kowal: 9:54

Well, that said, How do you view litigation as general counsel is, it's we talked about, we're not But we're not out there to vindicate a principle or just to get justice, you're looking for a resolution. And I would think that most seasoned litigators would share that view, what do you bring to the table that that helps focus litigators, even more as General Counsel?

Lee Goldberg: 10:15

Yeah, I use this quote all the time, it's from the Godfather, see, Sonny, it's just business. Alright. That's the way I look at it. litigation is a waste of money, if you are not getting what you need, and you know what, the uncertainty of litigation is extremely costly on business. So the way I look at litigation is there's a dispute, we have some resolutions, we can get to resolutions of all sides are reasonable, because in my opinion, a reasonable settlement is where both sides are equally unhappy, right? You don't get what you want everything. But as long as each person or each side is equally unhappy, I'm okay with that. They don't want to settle. They want to force my client into litigation, I have a completely different attitude, scorched earth Baby, I will spend whatever I have to spend, I will do whatever I have to do. Winning is winning by attrition, running them into the ground. And if I have and they force my client to go into litigation into trial, I'm telling you, we go all out win period at all. I'm like the old Raiders owner, just win, baby. That's all that matters.

Tim Kowal: 11:38

So it's not always the principle of justice. But sometimes it is a principle of respect, you know, you disrespect me, I'm going to run you into the ground, I'm going to make you I'm going to signal to you that this is going to cost you if you're going to continue down this path.

Lee Goldberg: 11:52

Well, that's a really good point. I never thought about it as a respect thing. I think about it as a stupidity thing. You want to be that stupid, I'm going to show you how much it's going to cost your stupidity is going to cost you. It doesn't mean it's not good for my client. My client is never a principal over business ever. Okay, yeah. So we got to get their business. And if it's going to cost me $400,000 to settle, and a million dollars to litigate. And my my uncertainty about whether I'm winning or not, is up in the air, I gotta tell you something, we're sitting down to see if we can get this resolved, move on and make our money and what we make our money on. And businesses do not make their money in litigation. Most of them.

Tim Kowal: 12:44

Yeah. So is it. So maybe you could say that the objective oftentimes in litigation, as you're thinking forward, how do I get to a judgment, but maybe from your perspective, a judgment is just another tool in the toolkit, if you can get to a judgment, you know, hopefully, you would have found a way found an off ramp before that point. But there are multiple ways of using getting leverage to get, you know, to get to a to an off ramp to get to a settlement, some sort of resolution that makes most sense for the business.

Lee Goldberg: 13:09

Well, leverage is an important word to use there. That's what I use litigators for is leverage. It's that simple. I gotta show them the other side that we're going to stand up at some point. But believe me, the idea is to show them how much it's going to cost them. So we can come to the table and sit and talk like human beings and get a resolute resolution.

Tim Kowal: 13:32

I've always heard this story about how a general counsel choose litigation counsel, maybe you can tell me if there's truth to it, that the general counsel will always tend will always favor hiring white shoe firms, because even if the white shoe firm loses, that can't come back and reflect badly on the general counsel, because they'll say look, I I hired the best money could buy Don't blame me. You share that view.

Lee Goldberg: 13:58

I don't at all. Look, white shoe firms have their place. They're amazing, outstanding lawyers. And it'll cost you three times what you what you would be charged otherwise, you can get that there are amazing lawyers out there. You have to go out there and get to know them as General Counsel, you have to understand how they work. I have a whole Bank of litigation firms of every level that I use for my clients, and understand some of it is matching the client with the right litigator with the right disposition. Some of it is a litigator that has particular expertise in the challenges of that litigation. And all of it has to do with my relationship with the litigators and the litigation firm. Because I will tell you this if I have a good relationship with them, then we coordinate and work together Understand, they understand where I'm coming from, I understand where they're coming from, and that best serves the client in the long run. So no, it's not always the Gibson Dunn's, okay. It's not always the reed Smith's that I bring into these deals. All right? Local, smaller, dedicated, smart counsel is what I look for.

Tim Kowal: 15:26

Tell me about the relationship that you have kind of sitting in the middle of the client, the principle that you're at your client business, and in dealing with trial counsel and appellate counsel, you're kind of sitting in the middle there. And what is it? What is it like what that relationship? Is the trial counsel, communicating directly with the client? Are you the go between? How does that work typically?

Lee Goldberg: 15:48

Well, it can work in all sorts of ways. Certainly, typically, what I like to do is no matter where the communication lines are, I'm always involved in the communication. My clients, I will tell you, when there's direct communications, it's only adds an extra step, because my client is going to come to me and say, What did you say? What do you mean by that? What's going on there? I do like the communication direct from me, every one of my engagement agreements say specifically that the firm's take direction from me, not from the client, every one of them, I have very close relationships with clients. And I know most firms will outside firms will not when they bring in outside counsel, pay those outside counsel directly. I do that. I want that outside counsel to know that they answer to me, because I'm the one that looks over their shoulder and half the answer to my client for anything they do right or wrong. I mean, it sits with me. So

Jeff Lewis: 16:53

You're the clients. I'm sorry, go ahead. we're

Lee Goldberg: 16:55

Go ahead, Jeff. Go ahead. And

Jeff Lewis: 16:57

you're and you're the clients, first line of defense on bills, do you take on that role of looking at the bills and dealing with billing issues?

Lee Goldberg: 17:04

Absolutely. But also I understand billing, and I understand attorneys have to make money. But I also understand my client needs value. And

Jeff Lewis: 17:14

In terms in terms of getting value, do you ever allow lawyers to work on either a fixed or contingent fee as opposed to the traditional hourly?

Lee Goldberg: 17:23

If it makes sense? Absolutely. If it makes sense, you know, contingency work in business transactions is very rare. It just is unless you're going after, you know, something that that has deep, deep pockets and the council can collect they, they really even offer it, right? That's why you see it mostly going in p eyes stuff with insurance companies defendant because they got deep pockets, if you get a judgment they pay. So I don't see that very often, Jeff, and frankly, transactional work that I do hire outside counsel for because I don't do every piece of transactional work that is more likely a fixed fee product.

Tim Kowal: 18:09

Now for when you work as General Counsel for companies that may need to contemplate future litigation, I'm thinking of like big, like big companies. I'm not sure if you represent companies like I'll give you a for instance, in our last episode, we interviewed Kelly Irby, with the Orange County District Attorney's Office and with the civil Enforcement Division, enforcing unfair trade, competition, unfair competition law against some pharmaceutical companies for price fixing. And she told us that she was a little surprised when the pharmaceutical companies attorneys made a motion to strike allegations in the pleading, which wound up taking the case all the way up to the Supreme Court. And where the Supreme Court held that, yes, the Orange County, any district attorney can file statewide litigation. And it really backfired on on the big companies defense counsel. And I wondered if Gosh, this seems like maybe a line of defense was missing over there on their side of the table. And I wonder if that's kind of a layer of consideration that you might add is thinking ahead not just to winning this litigation. But even if you if you win this litigation, you could lose the war later on.

Lee Goldberg: 19:14

Yeah, that that is a big deal. And when I said earlier about strategic planning, all of that has to come into effect, but it works the opposite. I had a client that had higher collections legal bills, than they had a default rate. Why? Because after about five, six years of going crazy getting a bunch of judgments they'll never collect on. Every lawyer out there in the public knew for a fact that if you stole or did not pay this client, they were coming after you. So there are reasons to do things like that. I'm not a big fan of that. To tell you the truth. I Anything that I do that is that looks like, you know, scorched earth litigation. It's really only to bring people to the table. And believe me, I don't believe in taking the last dime off the table. I don't look at trying to bring people to their knees. That's not the issue, the issues to get the resolution for my client, period. And if I have to do that by making the other side feel good, I'm going to do it by making them feel good.

Tim Kowal: 20:32

What are some of the most common mistakes you see trial attorneys make?

Lee Goldberg: 20:37

Not knowing their client?

Tim Kowal: 20:39

What do you mean by that?

Lee Goldberg: 20:42

They have a litigation plan. They have their litigation plan. They know where they want to go with it. They know how they think they can argue it and go for it. If you don't know your client, that is a train wreck about to happen. You need to respond to the needs of your client as a litigator. My goodness, gracious litigators, in my mind have to be the fastest thinking people on their feet around. All right, they have to learn all sorts of specialties that the different businesses that they represent do and how their businesses do it. Why they only have their way of going about things as opposed to satisfying the clients. Not only business need, but emotional needs to that's a big part of it. So I think that's the biggest deal when when when lawyers, not litigators only, but when lawyers get so full of themselves, that they think that they have the only answers. Sit back, listen to your client. That is the biggest error that I see.

Tim Kowal: 21:51

When you have a trial attorney that you you keep coming back to you Do you have your your client gives repeat business to a trial attorney? What's the most what's the most common factor that that keeps your client coming back to that trial attorney? Is it just the inverse of that the the attorney knows what that what that client needs.

Lee Goldberg: 22:09

So the thing that people keep coming back to is success. understand something, success is perception. Success is not a piece of paper. Success is not a N word result. Success is an emotional feeling that you give to the client that they did the best they could in the situation that they had. Alright, that's what keeps them coming back, I will tell you what makes them run away faster than anything. And it's a knock on all of us. And that is responsiveness and returning phone calls and emails. I tell you what I learned about 25 years ago, how important that was, or 30 years ago, when the fax machine came in my practice, when I first started out, it was easy to say Oh, you want this agreement, great, I'll get it done, turn around, get into mail, you'll love it in 10 days, or two weeks or a week. Then the fax machine came in with the thermal faxes that fade in remember those, then the faxes came in. And all of a sudden, your clients expected it now they call you up for 30 page agreement. And and you get a phone call Two hours later. Where's my agreement? Yeah, that was that was a difficult change. Well, now let's add email to it. All right, that we all have let's add zoom, where we could do documents on zoom looking at each other. This this is this is a tough thing, in terms of creating expectation. And what you have to do as a professional, if you don't want your client frustrated, is manage their expectations, period. Yeah, I that's half my job. I gotta tell you some half my job is managing expectations of everyone around me. So, you know, that's kind of the way I looked at

Tim Kowal: 24:13

it. I want to come back to something you said about success. And and then tying that back into something you said earlier about a successful settlement is where no one no one is happy. So how do you how do you square those two things, you'd you know that you've gotten the great litigation outcome, but the clients sometimes might might think unless you have managed those expectations. Maybe that's the link early on to know that we're not going into this litigation to get a judgment that we can frame on the wall at the cost of you know, hundreds of 1000s of dollars to trial counsel, we're doing it so that we can get an outcome. So maybe I've answered my own question, but

Lee Goldberg: 24:46

No, no, no, that's where the only good thought it is a reconciliation. Okay, look. Yes, expectations have to be managed the entire way. So I'll just give you a really quick Example about what I'm talking about about more than a dozen years ago I had a situation which was really bad. And a shop foreman in a steel fabrication company did some really really bad things not in bad not not bad intent to stupid right and, and their new CFO that was brought into the company was embarrassed and and he left the company into was when I was brought in and after my explosive expletives at the at the shop foreman for being so stupid, my initial conversation with the client was how much they should expect to pay. And the client was frustrated. What Wait, wait, you're supposed to come in and tell me you're gonna defend this and get this taken care of. And I said, Yeah, I can blow smoke up your skirt. You want that I'm happy to do that. But that's not the way it's going down. You're paying money. You're not insured. You didn't listen to me when I told you to get epi and coverage. All right. So you're paying and so they came to me and asked me Well, how much do you think we're gonna pay? I said, I hit a home run. If I settle this for under 700 and they're in shock, of course, right? But as you keep showing them what's going on and you show them other judgments and you see what that situation is, then they finally start coming around and we actually settled that one for 400 and I was given a gift by the client we're settling for 400 Yeah, so it's about expectation it's about letting them know what reality is and not trying to be the hero to solve and win everything

Tim Kowal: 26:46

you're constantly telling telling them what's up at the beginning and and telling them I told you so at the end

Lee Goldberg: 26:54

I try not to say to you I told you so they you lose a lot of clients doing that

Tim Kowal: 26:58

well then tell us about I mentioned your your activity on LinkedIn and you've got a great video series on LinkedIn about preparing a business for sale one if you tell us just a little bit about the Genesis genesis of that you know why why did you think that attorneys and business owners needed to see that that particular lesson and that video series can be seen on on Lee's website at cow lawyers calm which is a great website is much better than mine. Which I have to explain with Tango Victor alpha way too complicated Cal lawyers anyone can spell.

Lee Goldberg: 27:29

Oh, you're hilarious. Listen, like I said anything that I have social media or otherwise is is Gary Johnson. And also Steven, Greg, Steven, Greg did my my website and he's done a great job, I will I will I I do those video series because Gary pushes me to do those videos series. That's number one, I've always took the position that I you know, I'm a lawyer, I do law, I'm not a game show host Okay, I don't like it just was very, very uncomfortable at first. And the way he got me to do it, is by saying, Listen, don't talk about you give value to people. Tell them something that they don't generally understand about and and and this way you can feel good about what you're doing. You're not you know, putting your face on the side of the bus and say, you know, yo soy abogado. You know, I you know, so so it started with that. And I've I've had some speaking engagements, several regarding a few topics, preparing your business for sales, one of them. The other one is strategically planning and increasing your business value, which is the current one that I'm running, it's a seven part series. And then I have one following up, which is a six part series right after that is the the attitude that business owners have to have, if they're going to strategically plan their exit strategy for the best results. So between those those those are about a 2021 part series. But honestly, I put that all together in an hour and a half presentation that I done some keynote speaking on. So what I did was I thought I'd break that up and just give it to the general public on LinkedIn.

Tim Kowal: 29:26

I think there's a lot of value in there and I've got those bookmarked to share with with my business clients when they need them. So I think it's a great service and I got two more Gary Johnson plugs there. So I think I can probably rank free free toppings on my buy one get one of Baskin Robbins out of them. So as a Leo, I want to thank you for for joining us and sharing your experiences as general counsel with us. I think it's hopefully will be a benefit to our audience and trial lawyers and appellate attorneys and Jeff and I are going to talk about some some legal news and tidbits at least stick around and you can kind of pipe in if you have any any comments on our on our discussion of recent cases. So Jeff, why don't you take us into some of our Our News and tidbits for the week.

Jeff Lewis: 30:02

Yeah. Thanks, Tim. And thank you, Lee for being here today. Yeah, please pipe in if you have any thoughts on these stories, first off, I do want to share that the Fourth Appellate District Division Three down in Orange County, has announced that justice David Thompson is retiring, effective October 15. Justice Thompson, if you're listening, we'd love to have you as a guest on the podcast to discuss your 24 years on the bench. So congratulations on your retirement and come on the show. Yeah, well, we get an invite out. Go ahead.

Tim Kowal: 30:31

Oh, you know, there's a there's a case, there's a case this week about Fingleton versus Coyote Valley band of Pomo Indians and I have seen this one. And I saw that you had mentioned it, you'd flagged it to talk about it as well, Jeff. So tell me what you saw out of it. And you know, I have a couple of comments as well.

Jeff Lewis: 30:49

Yeah, it's fascinating two seasoned lawyers can look at a case and pull totally different issues out of it. I saw your write up about it. Here's what caught my eye cases. Pendleton v. Coyote Valley band of pomo Indians out of the first district. It's published and involved the long running construction and equipment rental dispute between an Indian tribe and a contractor. And the contractor repeatedly tried to enforce a mediation and an arbitration clause. And the tribe had tried every trick in the book, and many tricks that aren't in the book. To avoid arbitration and mediation violated court orders got sanctioned. When the tribe attempted to an appeal an award of sanctions. The contractor invite, excuse me invoked the dissent teittleman doctrine. And the dis entitlement doctrine says, Look, when somebody is in violation of a court order, they can't go up to the court of appeal it secretly, it's kind of like an unclean hands defense up at the appellate level. And that's what happened here, the contractor brought a motion to dismiss based on disentanglement. And the Court of Appeal granted a motion to dismiss the case. That's not unusual. What is unusual is what happened in this case is the Court of Appeal granted the motion to dismiss the appeal. With this interesting twist the appellant the tribe was free to petition the court of appeal to reinstate the appeal within 90 days, if it showed proof of compliance with the lower court's orders. I've made and oppose these motions based on this entitlement. I've never seen a sort of dismissal like this before. And it seems to me in opposing these types of motions would be seem to be a very good strategy to ask in the alternative to denial, the motion, that the ability to seek reinstatement. And if you're making the motion to dismiss based on this doctrine, to explain the moving papers, why allowing reinstatement or dismissing without prejudice would be itself prejudicial. But you pulled some other issues out of the case? What did you see?

Tim Kowal: 32:41

Well, I did see that issue that you had the you just covered, Jeff and I saw some other issues. It might be a little esoteric, to to ask even of our appellate podcast listeners, I put it in a write up for those who want to try to absorb it in writing, but it had to do with the collateral order doctrine. Well, yeah, I agree with you that the disentanglement doctrine is a powerful remedy. But I just thought that the Court of Appeal here took a lot of the zip out of it by by granting that motion to dismiss the appeal without prejudice and giving the in this wasn't a close call in terms of the dis entitlement doctrine. That was the other thing that caught my eye is that there was just a laundry list. There's at least half a dozen violations that I saw that any one of which would have been sufficient to grant a motion on the dis entitlement doctrine. And the court didn't seem to find it a close call and yet granted the motion with without prejudice.

Jeff Lewis: 33:30

Yeah, really surprising result there. A second thing that interests me about this decision is the commentary about the need for civility, you know, I'm always bringing to this show cases discussing civility. And this tribe was already in violation of several court orders and is facing dismissal under this entitlement doctrine. And the tribes lawyers made some personal attacks in the papers against the contractors lawyers, opposing the motion to dismiss in response to these personal attacks, the court said, We remind Council and the parties that zealous advocacy does not equate with attack dog or scorched earth. Nor does it mean lack of civility, zeal and vigor in the representation of clients are commendable, but so are civility, courtesy and cooperation, and they are not mutually exclusive.

Tim Kowal: 34:20

Yeah, yeah, I wonder if the appellate lawyers on this case were the same lawyers who handle the matter at the trial level, because sometimes Trial Lawyers bring to an appeal of personal history and emotional investment in the case of a fresh set of eyes and a cooler head from an appellate lawyer could be of benefit. When I thought about that,

Lee Goldberg: 34:38

I got it. I'd love to add on that. I will tell you that right now. I will never have my trial lawyers handle my appeals ever, ever. As a matter of fact, after seeing all your podcasts and Tim, frankly, reading all the complexities of your posts, I would absolutely if I have to go to trial. I am telling you and appellate lawyers sitting at that trial table throughout the entire trial. It you can't do it any other way. Not responsibly.

Tim Kowal: 35:11

Jeff, make sure Lee's check clears.

Jeff Lewis: 35:13

Yeah. music to my ears, you know, and look, sometimes Trial Lawyers bring to an appeal this this history is personal animistic animosity, you know, no trial lawyer I think intentionally makes personal attacks on opposing counsel when they're making these statements in a brief they think it's relevant and an outside appellate attorney can bring some fresh eyes and perhaps a cooler head and help that trial lawyer not step in it. So yeah, it's it is it is interesting

Tim Kowal: 35:40

back in Episode Three, we discussed some appellate strategies on summary judgment motions. And I think back then I had suggested the tip that when opposing a summary judgment motion, you should always consider raising the issue that there was more discovery that you need in order to oppose that summary judgment motion, because if the court denies you that relief, that could give you an additional additional ground to challenge a summary judgment on appeal, should you lose the motion? And I have I have to amend that advice. Now after reading the case, Begley versus Delta Dental of California, the plaintiff there had asked for more discovery, but did not use the magic words by identifying that particular particular essential facts may exist. The plaintiff didn't include those words in her affidavit. So discovery was denied. Some summary judgment was granted and the summary judgment was affirmed on appeal. I have a critical comment about the Begley case. And that is that is not the requirement that the opposing party has to identify particular facts that may exist, it's not in the statute, it's not in 437 c subdivision page, which authorizes the opposing party to seek more times more time to conduct discovery in order to oppose the motion. And I thought that imposing this non statutory requirement on the opposing party means that in the event, the moving party moves early for a summary judgment, before the opposing party has had time to conduct complete discovery. For their case, in their defense, the opposing party's right to discovery, now can be subject essentially to what amounts to a good a good cause requirement. Basically, to get the discovery extension provided under 437 c sub H, you have to already know what you're going to find. So I thought, how does this square with California is otherwise a liberal right to discovery?

Jeff Lewis: 37:21

It doesn't, it doesn't square with it, you know, the statute uses the mandatory word shall in terms of a continuance and Begley seems to infuse the trial court with quite a bit of discretion in terms of finding good cause. The mandatory portion of the statute, the statutory right to continuance is only as strong as the judges willingness, willingness to allow for discovery and allow for delay of the motion. It's I'm glad this case is not published.

Tim Kowal: 37:48

I am too although it cites its published authority on it. So this is this is the law in California, I think the upshot is that do not delay in conducting your discovery as soon as you can start conducting discovery on your defenses and claims and the case. do so. And then if if you haven't finished by the time the other party files a summary judgment motion, finish your discovery, get it on and because you're not going to be able to get that discovery continuance, you know, you don't necessarily have a right to it even though the statute says you do. Unless you essentially know the facts that are out there in discovery that's still yet on done.

Jeff Lewis: 38:22

And be sure to use the magic words in your request for continuance. All right, well,

Tim Kowal: 38:28

you got it. You got the last word.

Jeff Lewis: 38:30

Almost. That wraps up this episode.

Tim Kowal: 38:33

If you have suggestions for future episodes, please email us at cow podcast@gmail.com. That's ca l podcast@gmail.com. And our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis: 38:48

See you next time.

Lee Goldberg: 38:49

Thanks for having me, guys.

Jeff Lewis: 38:51

Thanks, Lee. I love getting the last word and thanks, Tim.

Announcer: 38:54

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

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.Cases and other resources mentioned in this episode:Begley v. Delta Dental of Cal. (D1d3 Aug. 31, 2021) 2021 WL 3878844 no. A159983 (nonpub. opn.).Findleton v. Coyote Valley Band of Pomo Indians, (Sep. 29, 2021, A158172) and Tim's write up of Findleton.

Press release for LA Superior Court re Dress Code

I have written before that checking the wrong box on the Judicial Council form notice of appeal likely will not doom your appeal. But I have also written that, if you continue using the Judicial Council form, you are likely to continue giving your adversary — and the courts — cause to question the sufficiency of your notice of appeal. (This is something attorneys do not like having to explain to their clients.) Both of these points are confirmed in *Fang v. Shao* (D4d2 Oct. 8, 2021) 2021 WL 4704892 (no. E073065) (nonpub. opn.). The appellant appealed from a judgment, but checked the box saying she was appealing from an order after a judgment, rather than the judgment itself. The respondent pounced on the technical defect.

When it comes to appellate jurisdiction, technical defects can be the best kind of defects. At a minimum, the Fourth District Court of Appeal here acknowledged it was "dutybound" to take it seriously, whether addressed by the parties or not. (Olson v. Cory (1983) 35 Cal.3d 390, 398 [“[S]ince the question of appealability goes to our jurisdiction, we are dutybound to consider it on our own motion.”].) ‘ “Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.” [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal.’ ” (In re J.F. (2019) 39 Cal.App.5th 70, 75.)

Fortunately for the appellant, however, the court concluded the respondent could not reasonably have been confused by the technical defect in the notice of appeal. The appellant did check the wrong box on the form notice of appeal, stating she was appealing from “An order after judgment under Code of Civil Procedure section 904.1(a)(2).” But she did identify the correct date of the judgment, and there was no other docket entry on that date. The respondent could not possibly have been misled. So the notice of appeal was sufficient. A notice of appeal shall be ‘ “liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.” ’ ” (In re J.F., at pp. 75-76.)

Bookmark this authority in case you run up against a wrong-box-checked problem in one of your appeals:

“Consequently, the notice of appeal was sufficient even if the wrong box was checked to identify the particular subdivision of Code of Civil Procedure section 904.1 that authorizes this appeal.” (Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 251 [notice of appeal adequate to appeal order awarding attorney fees, despite appellant's error in checking box for other types of postjudgment orders because “the notice of appeal clearly indicated the subject of the appeal was the order entered on September 10, 2012, which can only refer to the order granting attorney fees”].)

Comment: Consider discontinue using the Judicial Council form Notice of Appeal. Yes, the rule of liberality requires the courts to construe your notice of appeal broadly. But the Judicial Council form invites you to give the courts reason to construe it narrowly. (The rule of liberality does not apply if there is evidence of a different intent on the part of the appellant.) The additional information the form calls for is entirely unnecessary, as I have explained previously here and here. It is an optional form, not a mandatory form. And I am aware of no upside in the option.

Would a defendant rather be sued by one District Attorney, or 58 of them? Orange County Deputy District Attorney Kelly Ernby sued pharmaceutical company Abbott Laboratories for improperly delaying the release of the generic version of a drug. Surprisingly, the defendant argued the claim could not be brought by a single DA. (The Supreme Court disagreed.) Kelly tells Jeff Lewis and me that, had the defendant gotten its way, it might have led to a more complex and costly multi-district litigation. This downside to the strategy perhaps was not fully considered by the defense in this case.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 16, available here.