Appellate attorney John Reeves offers his pithy summation of the difference between trial attorneys and appellate attorneys.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 14, 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.

Motions for new trial are seldom granted. So seldom, in fact, that many attorneys — and judges, too — don't even know what to do when it happens. For example, a plaintiff has a right to a jury trial, and that includes a right to have the jury determine the amount of damages. So what happens when the judge, in ruling on a new trial motions, decides the jury's award was way too high and a remittitur (reduction of the award) is appropriate? How may the judge reduce the jury's award consistent with the plaintiff's right to a jury trial?

That is the situation that arose in Duncan v. Kihagi (D1d1 Aug. 9, 2021) no. A153521 (nonpub. opn.). Following trial in a slumlord lawsuit, the tenant received a verdict of $3.5 million (after a statutory trebling of damages). On the landlord's new trial motion, the judge agreed the verdict should be reduced to $2.7 million. The Court of Appeal explained the procedure for reducing jury verdicts, and even though the judge failed to follow that procedure completely, the court affirmed anyway.

A court has the authority to reduce an award when it is unconstitutionally excessive. (Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204, 214. See also Hale v. Morgan (1978) 22 Cal.3d 388, 404.) But Code of Civil Procedure section 662.5(a)(2) provides that, when the trial judge contemplates reducing a jury's verdict, the proper procedure is to issue an order granting a new trial, but conditioned on the plaintiff's consent to the reduction of damages.

(Note that this remittitur procedure does not apply in bench trials, where the constitutional right to a jury trial is not implicated. See [Code Civ. Proc., § 662](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=662.).)

Here, the trial judge denied the motion but went ahead and reduced the damages in the judgment without giving the plaintiff an opportunity to accept the reduction.

The trial court did ask the plaintiff before the hearing if, hypothetically, the court wanted to reduce the judgment, would the plaintiff be ok with that? And at the hearing, the plaintiff said it would be ok with that.

The Court of Appeal apparently thought that was close enough. "[T]though the trial court should have followed the remittitur procedure set forth in section 662.5, we cannot conclude that its reduction of damages was improper."

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.

After discussing the significant increase of amicus briefs filed in the California Supreme Court (and other state high courts and federal courts,), appellate attorney John Reeves discusses with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast what kinds of arguments in an amicus brief appellate judges might be most interested to read. Legal arguments? Or policy arguments?

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 14, available here.

In a recent case involving more than one case number, the defendant got an early victory in one case, and got an award of attorney fees. The trial court, however, did not like the idea of rewarding one party partway through a complex litigation, so it imposed a sua sponte stay of enforcement of that fee award.

That stay was reversed on appeal in Specialty Baking, Inc. v. Kohanbash (LASC App. Div. May 24, 2021) no. BV033347 (nonpub. opn.). While such a stay may be permissible, the court in making the discretionary ruling failed to consider the factors required under the operative statute. Failure to exercise discretion is an abuse of discretion.

The dispute in Specialty Baking started when a bakery sued its landlord based on a purchase option in the lease. The landlord fired back with what proved to be a badly misguided unlawful detainer action. Following a jury trial, a judgment on a directed verdict was entered for defendants.

Defendants then got an award for their attorney fees. But only after appeal: The trial court originally denied the fees as premature, apparently preferring that the parties resolve the unlimited civil action first. On appeal, the appellate division directed the trial court to process the fee motion in due course, which, this time, it did.

But the trial judge still had other ideas. Why, the judge thought, should the defendants get their fees when there is still another action pending on the same dispute? So although the judge awarded (though gritted teeth, one guesses) fees to the defendants, the judge also imposed (unsolicited, it appears) a stay of enforcement of the fee award "pending resolution of all of the present matters between the parties."

Actually, the court may do impose a stay of enforcement in light of pending litigation between the parties. But in its zeal, the court went about it the wrong way.

Code of Civil Procedure section 918.5 provides that “[a] trial court may, in its discretion, stay the enforcement of a judgment or order if the judgment debtor has another action pending on a disputed claim against the judgment creditor.” (§ 918.5, subd. (a).) “In exercising its discretion under this section, the court shall consider all of the following: [¶] (1) The likelihood of the judgment debtor prevailing in the other action. [¶] (2) The amount of the judgment of the judgment creditor as compared to the amount of the probable recovery of the judgment debtor in the action on the disputed claim. [¶] (3) The financial ability of the judgment creditor to satisfy the judgment if a judgment is rendered against the judgment creditor in the action on the disputed claim.” (§ 918.5, subd. (b).)

Here, the trial court failed to consider the factors under section 918.5. Failure to consider and apply statutory factors can constitute an abuse of discretion. (See, e.g., In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 305 [failure to apply statutory factors re spousal support]; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242 [lack of meaningful consideration of all relevant factors to determining lodestar figure determined to be an abuse of discretion]; Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 502 [failure to determine good faith of a settlement on the basis of statutory criteria identified as appropriate held to be an abuse of discretion].)

And specifically for the factors under section 918.5, those factors "shall" be considered. (See Erlich v. Superior Court (1965) 63 Cal.2d 551 (Erlich).

The respondent valiantly argued that, although the trial court failed to make findings on the factors, the record supported the stay order. After all, a trial court's order is not in error, and may not be overturned, simply because it fails to state the court's reasoning, and it will be affirmed so long as the decision is correct on any ground. (See Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443 (Howard); David v. Hermann (2005) 129 Cal.App.4th 672, 685.)

The problem with that argument here was that the respondent failed to offer any other ground on which the court's order staying enforcement might be found correct, nor any other “reasonable justification” for the order. (Howard, supra, 10 Cal.4th at p. 443.)

"Without any basis for inferring the court considered the required factors or made any findings that would support a stay, we conclude the court's order of a stay was an abuse of discretion."

One other interesting note: A stay order under section 918.5 (presuming it is supported by findings under the required factors) does not require a bond. "By their own terms, however, neither section 918 nor section 918.5 requires a bond for stays issued under the latter section. Nor does section 917.1 ... impose a bond requirement on a stay issued under 918.5; section 917.1 has to do specifically with the stay of a money judgment or order issued pending appeal."

Whenever the topic of stays and bonds come up, that is a good time to consult an appellate attorney.

Policy groups are more prevalent in our court system than ever, filing amicus briefs in record numbers. In California, amicus briefs are filed in over 37% of Supreme Court cases.

Appellate attorney John Reeves tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that this is a good thing, ensuring court opinions are informed by a wide array of perspectives. Traditionally only constitutionally significant cases drew interest from policy groups, but now almost every type of case garners interest from these nonparties.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 14, available here.

Can parties settling a lawsuit agree to a stipulated judgment that is non-appealable? (Yes – that is rather an easy one.) What if there is a dispute whether the settlement has been performed: Is the order deciding that question appealable?

This latter question is taken up in Summit Bridge National Investments IV, LLC v. Meguerditch Panossian (D2d2 Aug. 4, 2021) no. B310067 (nonpub. opn.), and is answered in the negative. After discussing the case, I explain why I think the result is both unsupported and incorrect.

The parties to a loan dispute in Summit Bridge decided to settle their claims. Like in many such settlements, the parties agreed to a stipulated judgment in the event of nonperformance. As part of the agreement, the guarantor agreed to continue pursuing a cross-complaint against the borrower in hopes of squeezing out some payment for the lender.

The twist on the stipulated judgment: the parties agreed that "the judgment to be entered ... shall not be appealable."

The guarantor got almost a third of the repayment out of the borrower. The lender was unhappy, but the guarantor thought he had done enough and filed a motion to enforce the settlement for a finding he had satisfied his obligations under the settlement. The trial court disagreed and entered the stipulated judgment against the guarantor. (This seems a little strange procedurally, because it does not appear the lender filed its own motion to enforce the settlement.)

The guarantor appealed. Predictably, the lender argued the appeal should be dismissed because the guarantor-appellant had stipulated the judgment was nonappealable.

The guarantor-appellant, on the other hand, argued he was not appealing from the judgment, but rather from the order denying his motion to enforce the settlement agreement and the trial court's resulting finding the appellant had not complied with the settlement.

This was a subtle and shrewd argument. And it probably should have worked. “It is well established that an order denying a motion to enforce a settlement is appealable as a final judgment. (E.g., Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1251, 115 Cal.Rptr.3d 203; Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1183, 84 Cal.Rptr.3d 689.)” (Wanke, Indus., Commercial, Residential, Inc. v. Superior Court of San Diego Cnty. (2012) 209 Cal.App.4th 1151, 1172 n.23.) (These authorities were not citied in the opinion.)

Unfortunately for the appellant, he did not appeal from the order denying his motion to enforce the settlement. As the court pointed out, his notice of appeal only indicated that his appeal is from a judgment after a court trial, and not from the order denying his motion to enforce settlement.

And as to the judgment, the appellant had expressly waived the right to appeal it. “‘It is well-settled that a party may expressly waive its right to appeal subject to only a few conditions: 1. The attorney must have the authority to waive a party's right to appeal. 2. The waiver must be express and not implied. 3. The waiver must not have been improperly coerced by the trial judge.’ ” (PG&E “San Bruno Fire” Cases (2019) 43 Cal.App.5th 596, 607.) The court noted that the appellant failed to demonstrate that any of these conditions preclude enforcement of his waiver of the right to appeal.

Appeal dismissed.

Interestingly, and contrary to the more recent authorities above holding that orders denying motions to enforce a settlement are appealable, the court cited a prior case holding orders denying motions to enforce a settlement are not appealable: "Panossian's purported challenge to the order denying his section 664.6 motion does not salvage his appeal. The trial court's order denying the motion to enforce the settlement is a nonappealable interlocutory order. (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292-1294 (Doran).) Panossian cites no statute that authorizes the appeal of interlocutory section 664.6 orders."

The Doran opinion indicates that court had found no other cases holding that denials of motions to enforce a settlement are independently appealable. Yet just 13 years later, the Wanke case mentioned above (but not mentioned in the Summit Bridge opinion) held that the same proposition had been "well established."

The result of Summit Bridge strikes me as incorrect. True, the underlying merits of the loan dispute were settled, and the parties' agreement to waive appellate challenges should be enforced. But what the parties had not agreed to was whether the material terms of the settlement had been substantially performed. And the parties had not waived their rights to adjudicate that question. The settlement was a separate and independent contract from the underlying loan. The parties were entitled to an adjudication on that independent contractual dispute, complete with the statutory right of appellate review.

In this commentator's respectful view, the Summit Bridge case was incorrectly decided.

Nine out of every ten appeals are pretty straightforward, simply appealing from a judgment after a trial. But every tenth appeal or so is a headscratcher. This happens a lot in the case of interlocutory orders – critical orders like demurrers and preliminary injunctions that occur before a final judgment. These can devastate the case, yet evade direct appellate review.

(Another place complications abound in post-order motions. Like the denial of a motion for reconsideration. (Do not appeal that order, appeal the underlying order.) Or the denial of a new trial motion. (Also not itself appealable, unless it is only partially denied, in which case, appeal the partial grant.)

There are strategies available to get direct appellate review of certain interlocutory orders. But they should be used with caution.

In the racial discrimination case of Brown v. Arizona Diamondbacks (D3 Aug. 9, 2021) no. C091629 (nonpub. opn.), the trial court sustained the Diamondbacks' demurrer to the plaintiff's claim for racial harassment. The court ruled the minor league clubhouse manager had failed to allege the Diamondbacks were his employer, but gave him leave to amend.

The plaintiff chose not to amend his complaint to allege an employment relationship. (Apparently he wanted to argue the statute, Government Code section 12940, did not limit liability to employers but also covered "any other person" who harasses on the basis of race.) So the plaintiff decided to stand on his pleading and appeal. To do that, he dismissed his racial harassment claim, and then when the other FEHA and UCL claims were dismissed on summary judgment, the plaintiff appealed.

While a Plaintiff Facing a Ruling Sustaining a Demurrer May Choose to Stand on the Complaint and Challenge the Demurrer Ruling on Appeal, the Plaintiff Must Dismiss With Prejudice:

The plaintiff's strategy almost worked. But only almost.

First, as he was aware, an order sustaining a demurrer is not an appealable order. (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1073, fn. 1.) The appeal must be taken from the ensuing judgment of dismissal. (Ibid.)

Second, as the plaintiff also was aware, faced with an order sustaining a demurrer, he was not forced to endure repeated cycles of amending and defending against more demurrers. If he was satisfied with his pleading, he was entitled to stand on the allegations and challenge the demurrer ruling on appeal. “When a demurrer is sustained with leave to amend, and the plaintiff chooses not to amend but to stand on the complaint, an appeal from the ensuing dismissal order may challenge the validity of the intermediate ruling sustaining the demurrer. [Citation.] On the other hand, where the plaintiff chooses to amend, any error in the sustaining of the demurrer is ordinarily waived.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312.)

But here is where the plaintiff made a critical miscalculation: When he chose to stand on his complaint and take the challenge to the Court of Appeal, he was required to dismiss his claims with prejudice.

The plaintiff urged that the cases allowed him to voluntarily dismiss to expedite his appeal. And that is correct: Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 793 [“many courts have allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial court, on the theory that the dismissals were not really voluntary, but only done to expedite an appeal”]; see also Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012 [“appellate courts treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling”].

But the voluntary dismissal to expedite the appeal must be with prejudice: Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975 [“Because Gutkin dismissed his remaining claims in this case without prejudice, the voluntary dismissal could not have the legal effect of a final judgment, and could not serve to expedite an appeal. By voluntarily dismissing the action without prejudice, Gutkin lost his ability to challenge the trial court's interim orders”].

(Gutkin was also discussed in this article about appealing an order denying a motion for leave to file a cross-complaint.)

Parties who are considering strategic maneuvers to expedite an appeal, or other less-than-straightforward paths to appeal, would do well to consult appellate counsel.

Amicus briefs filed in an appeal by nonparties can be influential in the outcome of a case, but appellate attorney John Reeves, who has authored a number of amicus briefs, tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that amicus briefs should not be saying the same things the parties have already said.

Offer a new perspective, or a policy argument, or even a "Brandeis brief" stocked with citations to social science papers. But whatever you do, do not be repetitive.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 14, available here.

Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and Tim Kowal that remote court proceedings using video technology may be a way to address an deficiency in access to justice in our judicial system.

Watch the clip here.

This clip is from a June 2021 interview in episode 12 of the California Appellate Law Podcast here.

Answer: Denials of new trial motions are not appealable.

But these things are never quite that simple, are they?

Here are a few buts:

1. Denials of new trial motions are reviewable on appeal. This is expressed in the recent opinion in Leinen v. Carlton (D6 Jul. 30, 2021) no. H047030 (nonpub. opn.). The Walker v. Los Angeles County Metro. Transp. Auth. (2005) 35 Cal.4th 15 citation is the case on point: **

"Carlton filed a timely notice of appeal from the judgment entered on April 8, 2019. Carlton's challenge to the order denying his motion to continue trial is not a subject for direct appeal but is reviewable on an appeal from the judgment. (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.) His challenge to the denial of his motion for new trial is cognizable on appeal; although an order denying new trial is not itself appealable, it is reviewable from an appeal upon the underlying judgment. (Walker v. Los Angeles County Metro. Transp. Auth. (2005) 35 Cal.4th 15, 18.)"

2. Orders that only partially deny a new trial motion are appealable. That is because orders granting new trial motions are appealable under Code of Civil Procedure section 904.1(a)(4). So if you are unhappy with the trial court's denying part of your new trial motion, you have to appeal the order partially granting it. (See here for further discussion.)

3. Orders denying statutory motions to vacate and set aside a judgment (e.g., Code Civ. Proc., §§ 473, 663) are appealable. See Ryan v. Rosenfeld (2017) 3 Cal.5th 124. (This rule might not apply to nonstatutory motions.) But the appellant in the recent case of Maiden v. United Healthcare Services, Inc. (D4d3 Aug. 3, 2021) no. G058401 (nonpub. opn.) flubbed her notice of appeal. The appellant had filed both a motion for new trial and a motion to vacate. They were both denied, and the appellant took appeals from both denials. As you now know in light of points (1) and (2) above, the appellant's appeal from the denial of the new trial motion was ineffective. But the Court of Appeal still reviewed the order denying the motion to vacate (which it affirmed).

4. Finally, one recent unpublished opinion says: “An order denying a new trial is appealable as a postjudgment order under Code of Civil Procedure section 904.1, subdivision (a)(2).” But that is wrong. Ignore this. (See here.)

As a final tip: When preparing a motion for new trial, give a thought to whether a motion to vacate and set aside the judgment might be a better fit. While a motion for new trial is required to preserve certain issues for appeal (most commonly, excessive or inadequate damages and new evidence), the trial court has discretion to modify its statement of decision to correct any defects in the judgment you point out in your motion. By contrast, when you file a motion to vacate under Code of Civil Procedure section 663, the court has no such discretion. A good case on point is Hole v. Takekawa (1913) 165 Cal. 372, 375-76:

"[The statutes] do not authorize any change in any finding of fact. 'Section 663 of the Code Civil Procedure authorizes simply the substitution of the judgment that should have been given as a matter of law upon the findings of fact in a case where the judgment already given is an incorrect conclusion from such findings. The court cannot on such a motion in any wav change any finding of fact."]. (See more here.)

Posttrial motions are an excellent time to consult 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.

Getting writ review in the Court of Appeal is rare – even when writ review is the only appropriate means of review. In a recent opinion in LSG Las Tunas, LP v. A & R Corporation, Inc. (D2d2 Jul. 29, 2021) no. B307534 (nonpub. opn.), the appellant filed a writ petition along with its appeal, but the court summarily denied the writ petition. Later, the court realized writ review was appropriate, and so treated the appeal as a writ.

The procedural curiosity probably came to nothing – the appeal-turned-writ was unsuccessful anyway – but it underscores how difficult it can be to get a writ petition off on the right foot.

LSG Las Tunas, LP v. A & R Corporation, Inc. (D2d2 Jul. 29, 2021) no. B307534 (nonpub. opn.) involved appellant's fairly serious million mechanic's lien on real property, clocking in at over $3.1 million. But the trial court reduced appellant's $3.1 million lien to a paltry $55,000.

The appellant thought this a rather terminal blow to its lien, so it appealed. To be safe, it also filed a petition for a writ of mandate. But the Court of Appeal summarily denied that writ petition, without an opinion.

Orders Reducing a Mechanic's Lien Are Not Appealable:

The order reducing the mechanic's lien was an interlocutory order. The general rule is that only final orders are appealable. One corollary of the “one final judgment” rule is that ““ ‘interlocutory or interim orders are not appealable.’ ”” (Howeth v. Coffelt (2017) 18 Cal.App.5th 126, 133.) An order is interlocutory—and hence generally not appealable—if, notwithstanding the order, “issue[s are] left for future consideration” by the trial court. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698.)

Here, the validity and amount of the debt that appellant claimed are still “left for future consideration.”

The appellant cited a good case, (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 318 (Howard S. Wright Construction)), that held that removing a mechanic's lien is an appealable order. But the court distinguished that case here because the trial court here did not "remove" the lien, it just reduced it – albeit by 98%.

(Tip: If you are seeking to remove a mechanic's lien, consider reducing it to a fractional amount instead. This could stave off an immediate appeal.)

The appellant also argued the order reducing the mechanic's lien was a final appealable order, even though it was interlocutory, because the order directed the appellant to record the order in the public records. This made the order a mandatory injunction, the appellant argued, and injunctions are appealable. (Code Civ. Proc., § 904.1(a)(6).) The court did not buy this: the direction to record the order was merely a ministerial act, and nearly every order involves some ministerial act. Treating such ministerial acts as injunctions would turn every order into an injunction.

The appellant also raised a much stronger argument for the validity of the order reducing the lien: the appealability statute at Code of Civil Procedure section 904.1(a)(8) makes appealable all orders "to redeem real ... property from ... a lien thereon, determining the right to redeem and directing an accounting." That seemed to fit closely.

The court rejected this too. The court noted this was not an action to "determine the right to redeem," and the order did not "direct an accounting." So section 904.1(a)(8) did not fit.

The Court Reviewed the Nonappealable Order as a Petition for Writ of Mandate:

But wait: Is that really the right way to render section 904.1(a)(8)? The court did not cite any other authority. And the court offered no further textual analysis.

Rather than take up further analysis, the court took up review on a writ basis instead:

"We need not linger on this question of appellate jurisdiction, because we retain the discretion to construe A&R's appeal as a petition for a writ of mandate (Olson v. Cory (1983) 35 Cal.3d 390, 400-401), and elect to exercise that discretion in this case."

In a footnote, the court noted:

"We acknowledge that this court has already rejected a writ from A&R in this case which presented the same arguments asserted here. However, as that writ was summarily denied, we find it appropriate to issue this opinion and explicitly address the merits of A&R's arguments."

Interestingly, the court did not analyze the factors normally applicable before courts will review a direct appeal on a writ basis. (See the discussion in Freeman v. Channels.)

The court denied the writ.

The case prompts one to ask: How many other writ petitions that are legitimately worthy of writ review are getting waste-binned during the court's rushed initial review?

What makes appellate judges change their minds at oral argument? Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that judges can hear the same arguments with fresh ears.

For example, arguments may have been unclear, and oral argument is an opportunity to make it clearer.

Or your brief raised too many arguments and confused the reader, and oral argument may allow you to focus on your best argument.

Watch the clip here.

This clip is from a June 2021 interview in episode 12 of the California Appellate Law Podcast here.