There are two noteworthy things about the published opinion in Strobel v. Johnson & Johnson (D1d4 Sept. 21, 2021) 2021 WL 4272711 no. A159609. First, it suggests how litigants might avoided the dreaded Sanchez rule that prevents experts from offering "case-specific hearsay" in their opinions. Second, it suggests some evidentiary rulings may be reviewed under the appellant-friendly de novo standard of review, rather than the deferential abuse of discretion standard.

In the Johnson & Johnson baby powder legal saga, a trial judge excluded plaintiff's expert witness opinion that J&J source of talcum powder had traces of asbestos. The judge pointed out, correctly, that the expert actually only looked at J&J's talcum sources outside the time period when the plaintiff, now having passed away from mesothelioma, had been exposed to J&J's product. Instead, the expert had relied on the work of another expert, but who was not part of this case.

Invoking the Supreme Court's holding in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), this "case-specific" hearsay was inadmissible. The court granted summary judgment for J&J.

The First District Court of Appeal in Strobel v. Johnson & Johnson (D1d4 Sept. 21, 2021) 2021 WL 4272711 no. A159609 agreed with the Sanchez analysis, to a point: "An absent witness's opinion may not be smuggled into evidence through an expert by dressing it up as background information."

But the court ultimately reversed because the case-specific hearsay was not the only basis for the plaintiff's experts' opinions. The experts also had drawn upon "various published materials from government agencies and professional standard-setting groups, published academic articles, published reports of “historical” testing, as well as testing data from their own labs." So even without the inadmissible case-specific hearsay, the court was "satisfied that Dr. Fitzgerald formulated his opinion based upon principles generally accepted in his area of expertise and that he applied those principles upon a proper evidentiary foundation."

The Court Reviewed the Evidentiary Ruling De Novo, Rather Than the More Lenient Abuse of Discretion:

Ordinarily, evidentiary rulings are only reversed on appeal if they abused the trial court's discretion. Even on summary judgment. “[T]he weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard.” (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)

But here, the First District Court of Appeal applied the de novo standard of review.

The court first noted that, before the Sixth District Court of Appeal's opinion had been superseded in Reid v. Google, Inc. (2010) 50 Cal.4th 512, it had expressed a strong view in favor of applying the de novo standard to evidentiary rulings in the summary judgment context: “ ‘Because summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors.’ ” But the First District correctly noted that the Supreme Court expressly declined to reach the issue of “whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo.” (Id. at p. 535.)

And the First District here likewise declined "to announce a generally applicable de novo standard of review for evidentiary rulings on summary judgment." Still, the court concluded "the procedural setting we have here justifies de novo review on this record."

The court did not further explain what in particular about the "procedural setting we have here" led to de novo review. The rule one draws from Strobel is that the exclusion of expert opinion in the summary judgment context will be reviewed de novo.

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.

Rarely does it give such satisfaction to report the dismissal of an appeal. A group of businesses who had benefited from local protectionism — which had prevented newer businesses from competing with the incumbents — were dismayed when the trial court struck down the protectionist scheme as unconstitutional. Though the incumbents were not parties to the lawsuit, they appealed the ruling anyway.

Held: The non-party incumbent businesses had no legal right to challenge the dismantling of the protectionist laws that had benefited them.

In Robert Taft Jr. v. Vargas (D4d2 Sept. 17, 2021) 2021 WL 4237140 no. E076173 (nonpub. opn.), the voters of the City of Jurupa passed an initiative in 2018 that allowed exemptions from the general prohibition on operating marijuana dispensaries. The exemptions were limited by population, so based on current population only six exemptions would be issued.

The appellants here were among the six incumbent businesses who received the exemptions.

The exemption procedure provided a "priority" track for applicants who had registered as a "commercial cannabis" dispensary with the Secretary of State by September 2016. That is, two years before the exemption procedure was even enacted. All others had to wait 100 days later to submit a "non-priority" application.

And would you believe it? By that time, there were no exemptions left.

The plaintiff, Robert Taft Jr., was one of the disappointed non-priority applicants, and smelled something amiss and so sued the city.

The trial court agreed, and struck down the application procedure as unconstitutional on equal protection grounds. No party appealed.

The incumbents appealed, however. But the incumbents had a standing problem. “[N]otwithstanding an appealable judgment or order, ‘[a]n appeal may be taken only by a party who has standing to appeal.’ ” (Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62, 67; see also Estrada v. RPS, Inc. (2005) 125 Cal.App.4th 976, 985 [“[A] party cannot assert error that injuriously affected only nonappealing coparties”].) This standing requirement “is jurisdictional” and thus “cannot be waived.” (Conservatorship of Gregory D., supra, 214 Cal.App.4th at p. 67.)

Here, the incumbents were not harmed. The trial court merely struck down the exemption procedure. As the court noted: "Other relief sought by the plaintiffs that conceivably could have injuriously affected appellants was denied by the trial court. Thus, the judgment was, in effect, in appellants' favor...."

But the court's ruling did not affect any of the incumbent's exemptions, which remained in force. So the only "harm" the incumbents suffered was that they would no longer enjoy the same level of protectionism that had enjoyed before. Protectionism is not a legally cognizable interest.

"We rarely have cause to apply the principle that a party cannot appeal a favorable ruling. In this case, however, we do."

Orders entered prior to a judgment typically are not appealable unless they are separately listed in Code of Civil Procedure section 904.1, the statute defining what orders are appealable. One exception is for collateral orders. A collateral order an order that has nothing to do with the merits of the lawsuit. So when a collateral order is also a final order, it is really more like a final judgment on that particular tangent than it is an interlocutory order along the way to the judgment in the main case. In which case, there is no point in waiting until the end of the lawsuit before appealing that final order.

One example of a collateral order is in the relatively rare published order (in contrast to an opinion) dismissing the appeal in Dr. V Products v. Rey (D2d5 Sep. 8, 2021) 2021 WL 4129463 no. B312605. The collateral order there is an order denying a motion for attorney fees following dismissal of a misappropriation claim, which claim allegedly was filed in bad faith, thus entitling the prevailing defendant to fees under Civil Code 3426.4. The order denying fees was collateral to the merits. And it was final. But still, the Second District Court of Appeal held — and rather unequivocally — that the order was not appealable as a collateral order.

Why? Because the order, though final and collateral, did not order the payment of money or performance of an act. And that is a necessary element in making a collateral order appealable.

Except, that is, in courts subscribing to the minority view.

The Two Required Elements for Appealability of a Collateral Order, and the Controversial Third Element:

The court first set out the standard for what constitutes an appealable collateral order: “An appeal is allowed if the order is a final judgment against a party in a collateral proceeding growing out of the action.” (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119 (Sjoberg).) “To qualify as appealable, the interlocutory order must be a final determination of a matter that is collateral — i.e., distinct and severable — from the general subject of the litigation.” (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1545.)

The court then went on to note a third requirement: collateral orders in this context typically involve the direct payment of money or performance of an act. (See, e.g., Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010, 1016 (Apex); Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297-298.) The court noted "the present case involves neither — the court refused to order respondent to pay attorney fees; the court did not order the performance of any other act."

But the court also noted that this is merely the "majority view," and that there is another supported view that a final collateral order may be appealable even if it does not involve the payment of money or performance of an act. (See Muller v. Fresno Comm. Hosp. & Med. Ctr. (2009) 172 Cal.App.4th 887, 901-905 [order denying sanctions appealable because "there is no judgment and there may never be a judgment"].)

Dr. V made the point that appealability statutes are not always reciprocal, so neither need be the collateral order doctrine. For example, orders denying a motion to compel arbitration are appealable, but not orders granting a motion to compel arbitration.

Shaking its head at the minority view, Dr. V had this to say: "As for those courts that have not faithfully followed the Supreme Court's opinion in Sjoberg, the [Conservatorship of Rich (1996) 46 Cal.App.4th 1233] court had this to say: “We consider this line of cases aberrant. In the seminal case articulating the exception, Sjoberg [citation], Justice Traynor could not have been more clear that such an order must pass two tests to be appealable: ‘It is not sufficient that the order determine finally for the purposes of further proceedings in the trial court some distinct issue in the case; it must direct the payment of money by the appellant or the performance of an act by or against him.' ” (Rich, supra, at p. 1237.)"

Two Comments:

One important wrinkle that Dr. V did not address concerning the requirement that there be a payment of money or performance of an act is in the example of orders on motions to tax costs. Such orders do not literally direct payment of money, so they are not appealable as a collateral order, said the Second District in Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 685, fn. 4. Yet there is "no meaningful distinction between an order awarding costs and an order denying a motion to tax costs," so orders denying motions to tax are appealable collateral orders, said the Fourth District in Krikorian Premiere Theatres, LLC v. Westminster Central, LLC (2011) 193 Cal.App.4th 1075, 1083-1085.

Another concern is that any uncertainty in appealability doctrines can present big problems. If an order is collateral, and it is final, then that may mean the trial court has no jurisdiction to revisit it later. The finality of an order also means that the order may not be appealed from a subsequent judgment. Here, the court says that the order denying the defendant's motion for fees was not truly final or collateral, because only one of six causes of action had been adjudicated, so there was no need for piecemeal appeals: "Appellant has an adequate remedy on appeal, just not at this time." But can we be so sure?

In this, the court is referencing the general rule that "Intermediate rulings . . . are reviewable on an appeal of the final judgment." (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 531.) But not so fast. First, this rule only applies to prior orders that are nonappealable. So litigants must be certain about appealability before relying on this rule. And second, the rule is codified at Code of Civil Procedure section 906, which provides the rule only applies to orders that involve the merits or the rights of a party — i.e., specifically not collateral orders. Section 906 states, in part, that the appeal from the ultimate judgment subsumes "any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party...."

So if there is any doubt whether an order is a final collateral order, cautious litigants should assume the affirmative and proceed as if the order is appealable. Uncertainty in the law is deadly.

Have you ever read an unpublished opinion and thought the reasoning a little mischievous, a little outcome-driven? Long-time court-watcher Howard Bashman has reported appellate justices have admitted this may be the case sometimes. (See here: https://lnkd.in/gdB-arbK.) But Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and me on the California Appellate Law Podcast that it never happened that he saw during his three decades at the Court of Appeal at the Fourth District, Division Three (Santa Ana).

What do you think?

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 15, available here.

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

There are two important reminders about motions for summary judgment in Steger v. CSJ Providence St. Joseph Medical Center (D2d5 Aug. 16, 2021) 2021 WL 3615548 no. B304043 (nonpub. opn.). The first reminder is that the appellate court may affirm on any ground, even if the trial court never reached that ground. The second reminder is that, if you are opposing an MSJ and you have not had a chance to complete discovery on any of the grounds advanced in the motion, you must say so in a CCP § 437c(h) declaration: just arguing it in the opposition is not enough.

The plaintiff in Steger sued his doctors and the hospital for medical malpractice. The hospital moved for summary judgment on the ground it could not be liable for malpractice because it did not employ the doctors — they were independent contractors. In his opposition, the plaintiff backtracked slightly, conceding the hospital was not directly liable for malpractice, but that it was liable because the doctors were the ostensible agents for the hospital.

The trial court granted the hospital's motion on the ground that there were no triable issues the hospital's conduct fell below the standard of care. The plaintiff's counsel had asked in the opposition for a continuance to conduct additional discovery pursuant to Code of Civil Procedure section 437c(h), but that request was not supported by an affidavit so the trial court denied it.

The Court of Appeal May Affirm on a Different Ground Than Relied Upon by the Trial Court:

On appeal, the Second District Court of Appeal affirmed on the ground that no ostensible agency relationship existed. Although this alternative ground raised by the hospital was not the basis for the trial court's order, it may be a basis to affirm: “ ‘[a]s a corollary of the de novo review standard, the appellate court may affirm a summary judgment on any correct legal theory, as long as the parties had an adequate opportunity to address the theory in the trial court. [Citation.]’ [Citation.]” (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.)

The court reasoned that the parties had had an opportunity to argue the ostensible agency theory in the trial court, so it was empowered to rely on that ground to affirm.

The court also held the trial court did not abuse its discretion in denying the plaintiff's request for a continuance to conduct additional discovery because the plaintiff had not supported that request with a declaration as CCP § 437c(h) requires.

The Importance of Properly Raising the Issue that Additional Discovery Is Needed in MSJ Practice and Appeal:

In an abundance of caution, however, the appellate court invited supplemental briefing on the issue. Code of Civil Procedure section 437c(m)(2) requires the appellate court to invite supplemental briefing if the court intends to rely on a ground not relied upon by the trial court.

At this point, the plaintiff-appellant seized on section 437c(m)(2), which provides that, in those supplemental briefs, a party "may include an argument that additional evidence relating to that ground exists, but the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue." Unlike section 437c(h), this request is not required to be supported by a declaration.

But the court still rejected it. The court said that the appellant "misrepresent[ed] the record" to support the request for additional discovery. In light of this "false representation," the appellant's "last minute request" was "not well taken."

The Upshot: When opposing a MSJ, support any request for a continuance based on inadequate discovery by affidavit in the trial court, and if the appellate court invites briefing on it on appeal, but scrupulously faithful to the record in making your request there. (Being scrupulously faithful to the record is a good practice in all other regards, too.)

You probably have heard of appeals being dismissed on procedural grounds, or as frivolous. But you could practice law rather a long time and never hear of an order being summarily reversed on appeal. But that is what happened in the improbably titled case IAHLDHFAPIMP_PAP, LLC v. Noll (D4d1 Aug. 11, 2021) no. D077727 (nonpub. opn.)

But don't get too excited. The appeal was from an award of attorneys' fees following a judgment. The underlying judgment recently got reversed in a separate appeal. No judgment, no right to fees. There was no point in going forward with the appeal.

Here is the standard for summary reversal:

The court may summarily reverse a trial court order where (1) “the proper resolution of the appeal is so obvious and without dispute that briefing would not serve any useful purpose” (Weinstat v. Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1224), and (2) the parties have waived oral argument (see Moles v. Regents of University of California (1982) 32 Cal.3d 867, 870).

This scenario is one of the more common applications of the rarely-used summary reversal procedure. (E.g., Merced County Taxpayers' Assn. v. Cardella (1990) 218 Cal.App.3d 396, 402 ["An order awarding costs falls with a reversal of the judgment on which it is based."].)

Another scenario when summary reversal may be appropriate is when an intervening Supreme Court opinion clearly renders erroneous the order on appeal. (E.g., Weinstat v. Dentsply International, Inc., 180 Cal.App.4th 1213, 1218 (2010) ["Recent Supreme Court opinion in In re Tobacco II Cases (2009) 46 Cal.4th 298] rejects the legal premises underpinning the decertification order as to the UCL claim and mandates reversal.”].)

Still, the concept of a summary reversal is a curious one. Parties to an appeal are entitled as of right to present oral argument and to a written opinion. (Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1255.) The right to oral argument on appeal traces "to several sources, including the Constitution, the California Rules of Court, prior case law, and [in criminal cases] the Penal Code." (Moles, supra, 32 Cal.3d at p. 871, quoting People v. Brigham (1979) 25 Cal.3d 283.) And section 14 of article VI of the California Constitution requires the appellate court to decide all causes "in writing with reasons stated." This requires the court to state "the 'grounds' or 'principles' upon which the justices concur in the judgment." (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1262.)

The summary reversal procedure represents a non-statutory, judge-made exception to these fundamental requirements on appellate courts.

Which is probably why it is invoked so rarely that you likely had never heard of it. While summary reversal sounds intriguing if you are an appellant, remember this: were the courts to begin liberally invoking summary procedures, it would produce far more unhappy appellants than anything.

Did you know that California appellate justices are elevated from the trial courts more often than are federal appellate judges? Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and me on the California Appellate Law Podcast that this may be why our state appellate courts tend to be more deferential than is the 9th Circuit.

What do you think?

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 15, available here.

Attorney business coach Alay Yajnik was kind enough to invite me onto his podcast, the Lawyer Business Advantage, to discuss how an appellate attorney can help trial attorneys win and add value to the services they provide clients, telling clients appreciate hearing why the attorney cares about the case rather than just how much the attorney will cost, and then moving on to a discussion about publishing legal content.

Listen online at Alay Yajnik's podcast website, Lawyer Business Advantage, which also has a nice summary of the conversation.

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

In appeals from mixed discretionary and factual findings, it can be tempting to fault the trial court for failing to consider all the great evidence in the appellant's favor. But be careful not to ignore the "heavy burden" required to get review of factual questions. Failing to comprehensively evaluate the evidence against the appellant resulted in a forfeiture of the issues on the appeal in *Ashby v. Ashby* (D4d3 Aug. 5, 2021) 2021 WL 3413092 no. G058474 (nonpub. opn.).

The appellant challenged an order renewing a domestic violence restraining order (DVRO) in favor of his wife, from whom he has been separated for several years. These are tough to challenge because they are reviewed for abuse of discretion, and related factual findings are reviewed for substantial evidence. But the appellant thought he had a good idea to challenge it. Unfortunately, it was only half a good idea.

The appellant did have a valid reason to believe the DVRO should not have been ordered renewed for another five years, which represents a serious limitation of the appellant's rights, including his right to the firearms he and his wife both owned and used and of which he had already been deprived for five years. Besides, the appellant already lives 1,000 miles away from wife.

At the hearing, the wife spent most of her testimony explaining why she and the appellant couldn't get along, citing events leading up to the first DVRO, and seemed to struggle to provide any basis why the appellant still posed a risk of abuse today. The court seemed to rely on the wife's testimony that the appellant was withholding money, and that the wife felt the appellant still held a lot of hostility against her.

In fairness to the appellant, this does seem a rather paltry showing. But it was enough for the judge, who renewed the DVRO for another five years.

The appellant challenged the order as lacking evidence after the issuance of the original DVRO supporting its renewal.

Legal Standard on Renewal of DVROs:

Family Code section 6345, governing renewals of DVROs, provides at subdivision (a) that a DVRO “may be renewed upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order ....” (Italics added.) The Second District in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1283 (Ritchie), explained that this means the renewal of the DVRO requires a reasonable apprehension of future abuse if the initial order expires. “[S]ection 6345 makes it unnecessary for the protected party to introduce or the court to consider actual acts of abuse the restrained party committed after the original order went into effect."

The Ritchie factors the trial court must consider in renewing a DVRO are:

The evidence and findings supporting the initial order — and particularly significant in this case, the facts supporting issuance of the DVRO “often will be enough in themselves to provide the necessary proof to satisfy [the] test” (Ritchie, supra, 115 Cal.App.4th at p. 1291);
Any significant changes since the initial order making the likelihood of abuse more or less likely; and
The burdens the DVRO imposes on the restrained party.

Appellant Forfeited His Challenge by Failing to Exhaustively Describe and Cite to All Evidence Supporting Renewal of the DVRO:

As commented above, the wife's showing of new circumstances — the second Ritchie factor — was rather scant. So the appellant challenged this and argued the trial court abused its discretion in failing to consider this factor. (After all, failing to consider a required factor may itself be an abuse of discretion.)

But in this, the appellant overlooked the first Ritchie factor: the evidence supporting the initial DVRO. And this failure resulted in a forfeiture. That is because the appellant's challenge to sufficiency of evidence supporting the renewed DVRO is reviewed for substantial evidence, which imposes on the appellant the burden to demonstrate the record lacks evidence to support a finding of fact. Here is a good statement of the standard to clip-and-save:

“That burden is a heavy one: ‘ “A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]” [Citation.] “[W]hen an appellant urges the insufficiency of the evidence to support the findings it is his duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.” ’ [Citation.]” (In re Marriage of Marshall (2018) 23 Cal.App.5th 477, 487.)

Here, the appellant "improperly refutes the factual basis" for the original DVRO, gives short shrift to the factual history, "ignores significant events" in the case, "omits the reasons why" the trial judge denied the appellant's request to modify or terminate the DVRO, and generally provided a "one-sided narrative of events."

Specifically as to the appellant's focus on the lack of recent events to support renewal of the DVRO, the court said this emphasis "turns our standard of review on its head." That is because, on review for substantial evidence, the court does not review the evidence to see if there is substantial evidence to support the losing party's version of events. Rather, the court looks solely to whether there was substantial evidence in the winning party's favor. That is why the appellant is required to set forth, discuss, and analyze both the favorable and unfavorable evidence. “ ‘ “Unless this is done the error is deemed to be waived.” ’ [Citation.]” (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246.)

Would Having Requested a Statement of Decision Changed the Outcome?

Apparently anticipating the appellate presumptions against him, the appellant made an interesting evasive maneuver. He argued that the trial court's minute order granting the renewed DVRO should be construed as a statement of decision. And if there was a statement of decision, then the appellate court should not infer the trial court made any other findings against the appellant — including a finding that the evidence supporting the original DVRO supported the renewal.

Even in the best case there is reason to doubt this approach would work. But the court offered three procedural reasons for rejecting this gambit: (1) it is a new argument raised for the first time in the reply brief, (2) the record reflects the trial court did not intend for its minute order or statements on the record to be a statement of decision, and (3) the appellant did not request a statement of decision.

But had the appellant timely requested a statement of decision, requested a finding on each of the Ritchie factors, and then objected if any findings were missing, then this likely would have changed the appellate analysis. Whether it would change the result, however, is another question.

Just because I get this question a lot from clients and other trial attorneys, I put it to Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), who sat down to talk with Jeff Lewis and me on the California Appellate Law Podcast. Does the court give any consideration to the number and length of extensions the parties request?

Answer: an emphatic No. Nope. Never. Not even a little.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 15, available here.

Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), talks to Jeff Lewis and me about the cultural differences among some of the districts. Do the research attorneys talk amongst themselves about the case they are working up? What about the justices? The answer may depend not only on policy but on the architecture of the courthouse: are all the justices and staff attorneys on the same floor, or scattered about?

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 15, available here.

You may think this is obvious, but I continue to see attorneys get tripped up by this question: When an appeal from a judgment is taken, which generally stays matters in the trial court (matters that are are "embraced therein or affected thereby" (CCP § 916)), does the appeal prevent the trial court from awarding the prevailing party's attorneys' fees?

Answer: No. In fact, the First District Court of Appeal recently called this a frivolous argument in Korchemny v. Piterman (D1d2 Aug. 27, 2021) 2021 WL 3828228, no. A155483 (nonpub. opn.).

The court first faults the appellant for "cit[ing] nothing in support" of the argument that the appellate stay prevents the court from awarding fees and costs. The court then explains that, to the contrary, the proposition is refuted definitively in Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368–369, superseded by statute on other grounds as stated in Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197. Bankes rejected the identical argument the appellant makes here. Bankes held:

“Contrary to Bankes's argument, the filing of a notice of appeal does not deprive the trial court of jurisdiction to award attorney fees and costs post trial.... [I]t has been held that a motion for attorney fees is not premature despite the filing of a notice of appeal. [Citations.] [¶] In any event, an award of attorney fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken. (Code Civ. Proc., § 916, subd. (a); In re Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1140.) Consequently, filing a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs.”

A quick search indicates the argument is raised not infrequently in the appellate courts, which suggests it is raised still more often in the trial courts. I have seen it prompt a further round of briefing in the trial court, as trial judges tend to take seriously any argument that they lack jurisdiction. So clip-and-save the quote from the Banke opinion.

Although the court called the argument frivolous, it did not impose sanctions. Remember that appellate courts are authorized to impose sanctions on their own motion. (In re Marriage of Flaherty (1982) 31 Cal.3d 637; see also Dana Commercial Credit v. Ferns Ferns (2001) 90 Cal.App.4th 142, 146 [authority to impose sanctions for filing frivolous appellate motions].)

If the court does not impose sanctions on its own motion, you have to file a separate motion. You cannot just ask for sanctions in a brief. (Cal. Rules of Court, rule 8.276, (a)(1); Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 919 ["Sanctions cannot be sought [only] in the respondent's brief."].)