Appellate attorney John Reeves joined TVA appellate attorney Tim Kowal and co-host Jeff Lewis to discuss incorporating amicus briefs into your appellate strategy. John discusses Marin Housing Authority v. Reilly, a California case pending possible review by the United States Supreme Court, and has already attracted the interest of amici. At issue is whether a public housing authority, in calculating a family’s annual income, is required to exclude Medicaid-funded payments made to a family by a state agency to allow the Section 8 tenant to provide personal caregiving services in order to keep a developmentally disabled family member at home.

John, Tim and Jeff also discuss amicus briefs, when you should consider soliciting amicus briefs in your appeals, what kinds of arguments are best suited to amicus briefs, and other aspects about practicing appellate law.

Listen below:

Transcript:

John Reeves: 0:02

There are few things in this world that annoy appellate judges more than repetitive, amicus briefs.

Announcer: 0:10

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: 0:24

Welcome, everyone. I am Jeff Lewis.

Tim Kowal: 0:26

And I'm Tim Kowal operating under an expired 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: 0:54

All right, and welcome to Episode 14 of the podcast.

Tim Kowal: 0:59

Right and today, we welcome John Reeves to the show. John is an appellate attorney whose practice focuses on federal appellate and Supreme Court litigation. His practice is based in St. Louis, Missouri, you can find John's numerous amicus briefs and any number of high profile constitutional litigation, including a recent petition for certiorari to the US Supreme Court from a decision in the California Supreme Court in Marin Housing Authority vs. Reilly, which we'll be talking about on the show today. So welcome to the podcast. John.

John Reeves: 1:28

Welcome. It's a pleasure to be here.

Tim Kowal: 1:31

So So as I mentioned, your practice is based in St. Louis, but you're obviously very engaged in a lot of national and federal litigation and appeals. How do you choose what what cases to get involved in?

John Reeves: 1:44

The most important thing I look at the day appellate practice at that level she'll look at to begin with is is there a clear split, either among the federal appellate courts or among and or among the state courts of last resort? If there is you've already satisfied the first difficult hurdle to clear, right? The vast majority, I don't have percentages or a statistics from me, but the vast majority of cases on which the US Supreme Court grant cert are those cases where there's a circuit split.

Tim Kowal: 2:15

Do you see that there has to be more than just, you know, one, two circuits, and then being split that to be, you know, more than more than two or three or four circuits?

John Reeves: 2:24

Yes or no? So it depends. It depends entirely. That's the big question. There really isn't a good answer to that. Sometimes. There can be maybe they've the courts grants cert, where there's just one split, where two courts disagree with each other other times they fail to grant cert until there's a split that develops more and more. Now, of course, then there's that Well, what do you mean by a split? Is it one court disagreeing with each other? Or is it where, you know, nine or 12 courts have always concluded this one thing? And then so you have this 15th case where this one courts called do the opposite? And then whoa, wait, yeah, that that's a big outlier there and whatnot. Yeah, that, that, again, I don't have a statistics. And it doesn't really matter what the subject matter is either the split, looking for split is the most important thing and get, you're in a much better position. If the court if the law opinion you're trying to get reviewed, explicitly acknowledges the split. I'm not saying it's not possible, otherwise to get served. But you're in a much easier position. If the lower court opinion explicitly acknowledges the existence of a split.

Tim Kowal: 3:38

As an appellate attorney, are you looking for opportunities in the as in the district court itself to to make the record that early in the case? Or are you mostly getting involved when it's already up on appeal?

Unknown: 3:49

Absolutely, absolutely. That is actually an aspect of the appellate practice that has really developed and, and sprung up in the last 15 years. There's two parts to that: one appeals themselves have become so more specialized, you have trial lawyer more and more going to appellate specialists, to handle the appeal, but even before that you now have this is relatively new, it's only been going on for about 15 years. You have Trial Lawyers seeking appellate specialists at the trial level to basically be in the background. And to serve as like the person who's looking at the case, from looking at from the long game, you'll while the while the trial attorney is doing the discovery is developing all the factual theories and whatnot, and looking at what what's the strategy for if this goes to trial or even summary judgment in terms of establishing the record, you've got the appellate specialist in the background, who is so like, doing the research, looking what the more broader issues are, making sure that it's clear what the what what your jurisdictions rules are regarding, as you said, preservation, they're at trial and even before they even start summary judgment making sure that whatever the staff review is for summary judgment in the event that, well, if you win, and then the other summary judgment, then the other side appeals, you want to make sure that the arguments you've made are, are clear cut and everything in an appellate specialist brings that kind of perspective. That's not, not the trial attorneys lack I mean, don't get me wrong. I'm not saying that. It's just it's it's just a different perspective. it's it's a it's a complimentary perspective that fits in with what the trial lawyers do. Yeah.

Tim Kowal: 5:33

Well, Jeff, see, I see my attempt at light banter has turned into a disquisition on advanced trial strategy. So maybe we should move on to the actual meat of our of our interview today and talk about Marin Housing Authority v. Riley. And I thought our listeners would be interested in hearing you talk about this case, John, because it illustrates how decisions made in our judicial system here in California can get the attention of appellate attorneys like yourself in other states. And yes, we could talk about maybe we talked about the Marin County Housing Authority case, we could talk about Amicus briefs more generally, and how to maybe how practitioners can can involve that as part of their appellate strategy. Let's set the table briefly to discuss Moran Housing v. Riley, the California Supreme Court just issued its opinion in that case. And now there's a petition for certiorari to the United States Supreme Court. And the case involves Section 8 rent subsidies, I understand and apparently, some Section 8 recipients also receive compensation for providing in home care for for disabled family members, for example. So the question that arises is what happens if that compensation takes them above the threshold for receiving Section 8 aid? Does that compensation count as "income" for determining need for Section 8 assistance? SoJohn, if you would set up the basic facts of the case and then how you came to be involved in it?

John Reeves: 7:00

Gladly, yes, thank you to himself. But to as a practical effect, this is going to make far more people eligible for HUD housing. And in the process, your HUD funding isn't unlimited. I mean, it's money doesn't grow on trees to use the old saying, right. And there are people literally backlogged waiting for to get HUD funding who are ineligible who don't have it yet,

Tim Kowal: 7:25

Right. Getting this increased income are arguably taking away money from people who have less income, yes, who equally need that housing? Or maybe maybe they have even a more dire need for that housing.

John Reeves: 7:37

Exactly. And again, I apologize. I can't remember what the what the amounts were that that, that that Miss Riley was receiving, in this case from the California from the Medicaid agency, but again, what you said that's just goes to prove the deeper issue of you know, under that rationale, if you accepting the California Supreme Court's rationale, her income would count towards being reduced, would be excluded for HUD purposes, but someone working somewhere else doing some, some other job making the exact same amount of dollars per year, that wouldn't be excluded. Yeah. So. So that's an issue. And so yeah, it's it's a very serious policy issue. Yeah,

Tim Kowal: 8:20

yeah. So yeah, we have a taste of the facts. You have a taste of the policies at stake. What let's talk about your interest as an amici. And the other ameche involved what who are the other amici? involved? builing, Amica, Amica. spruce, and what are their interests concerning this case? Sure.

John Reeves: 8:36

Okay. Well, so I'll start off with the, the, the amicus entity I filed on behalf of is the Scott County Community Development Agency. Now they're based in Minnesota. And that actually ties in with how there is a an explicit split in this case between the California Supreme Court and two other other jurisdictions. There's a split in this case, the California Supreme Court explicitly rejected two earlier cases, one by the Fifth Circuit and one by the Minnesota Supreme Court that concluded that this income, this income cannot be excluded. And Scott County, the party that I represented, as the amicus was actually the party in the Minnesota Supreme Court that ended up that ended up winning. So so that's so their interest. And so that's the that's the amicus party, I'm represented the other The only other there's only one other because party, the file day, an advocacy brief and supportive of the Supreme grand at this stage, and that's the county Excuse me, I apologize. This is the California Association of housing authorities. And they're they're like an umbrella group of various local housing authorities in the state of California. They're charged with administering the HUD regulations. And both their interest and the interests of my group, Scott County, they really allied we made sure that the briefing wasn't repetitive but but basically the California group, they focused primarily on the policy matters and how you as we were saying this, this is just going to further drain the the already limited funds, they're needed to provide assistance, these people, my brief and term amp amplified on what the circuit split or the nature of the circuit split between the California Supreme Court on one hand and the Minnesota Supreme Court and the Fifth Circuit. On the other hand, as I said, both the Fifth Circuit and the US Supreme Court they they came to the separate conclusion, then what the California Supreme Court did.

Tim Kowal: 10:35

Interesting. So what's the tactical advantage to splitting up the issues like that, rather than both of you covering both issues in your briefs? Or we're just one of you filing a brief or filing a joint brief? You talk about those kinds of considerations?

John Reeves: 10:50

Absolutely. Well, the most important thing in amicus brief can do Why? Why do you want amicus brief, it's to bring the court's attention to something to some matter that the briefs on the merits weren't able to address, either for lack of time or maybe, or for some other reason. That's the first thing. The second thing tied into it. That is an amicus brief gives the court an opportunity to look at the case from a broader picture, that when you see apart, that it prevents the core for being so focused just on the two parties here and enables them to see what the broader consequences could be or are to this to this issue. That if they rule this way, what could be a amicus brief can can bring to the court, what are some of the other consequences of this issue? That may be the main briefs haven't haven't haven't been able to dress because of time constraints. And the related to that, and I always say this, any good health practitioner will tell you that the worst thing you can do in an amicus brief is just regurgitate what the briefs on the merits have said that, unfortunately, that happens more often than it should. It there are a few things in this world that annoy appellate judges more than repetitive amicus briefs. They don't have all the time of the world. They're they're busy. You know, they have other things to do. They don't want to sift through. You have a long, a long brief that just repeats what

Tim Kowal: 12:15

they're not reading brief for pleasure they're reading because...

John Reeves: 12:17

No.

Jeff Lewis: 12:19

yeah, yeah, that's great. But you know,

John Reeves: 12:21

yeah, hard to believe that the judges have I know, it's stunning to all of us. But

Jeff Lewis: 12:25

I was just gonna say every brief, you know, every appeal involves a mistake that was made by the trial court, and somebody argues it should be reversed. And somebody's arguing there was prejudicial error. And the real role of advocates briefs is to demonstrate the policy: "the why."

John Reeves: 12:39

Yes

Jeff Lewis: 12:39

The "why" the justices should care and why they should reverse and they should, in my opinion, amicus parties should spend 90% of their effort or word count on the "why" and the policy implications of granting or not granting relief.

John Reeves: 12:53

Yes, I fully agree. I fully agree. And on that note, just to add one more thing, just for to be clear what the status of the case is, right now, the cert stage briefings been completed. And the court actually about a month ago, after it was submitted issued an order or asking calling for the views of the United States Solicitor General, that's asked the Solicitor General's office to submit its own. Yep, at brief amicus brief to inform the court what it thinks that the case should be granted, should it not? So it'll be very interesting to see what happens with that.

Tim Kowal: 13:30

Are there any rules against amicus or different amici from coordinating their briefs with one another?

John Reeves: 13:36

That's a great question. No, there isn't. There's some some lawyers who are familiar with the process are... I've noticed they can be a bit reluctant to to try and coordinate by lawyers. I mean, the lawyers who for the parties on the merits, who they may all now that is this, they may think that well, is this is this wrong to collaborate, but there's nothing against it. I mean, as long as I mean, as long as you're not going to share any attorney client privilege, there, but no, there's there's absolutely nothing, nothing against that.

Tim Kowal: 14:09

Okay. Now, I noticed that Marin Housing Authority asked the court the California Supreme Court to stay the issuance of the remittitur. pending the filing and disposition of the of the petition for writ of certiorari in the Supreme Court. The California Supreme Court granted the stay. I wanted to ask you is that common in your experience from what you've seen, to do parties ask the the State High Court if the if the parties intend to take a petition for writ of certiorari to the US Supreme Court as a common to ask the State High Court to to stay issuance of the remittitur?

John Reeves: 14:43

I'll answer that question two parts one. It is it is common for the parties to ask a state stay at the issuance of the remittitur. If if the circumstances are such that it will harm the clock the party seeking review If it's not staged pending the time that they do start, and I'll get into that more in a second, the second quiet question, which is a subset of your first question, How common is it for the California Supreme Court or any other court to grant a stay of the issuance? That is a relatively rare thing for them to do. It's not unheard of. But it is relatively rare. And just just to give a broad perspective, what we call the what you call the remittitur in California is called the mandates in the federal appellate courts and several and most of the other state appellate courts effect as a side note as a Missouri practitioner one of the things I love about, about the California State courts, you guys still use all those old school common law terms and everything like you guys still have the demurrer and everything.

Tim Kowal: 15:44

And we're not very progressive in that way.

John Reeves: 15:46

irony of ironies, right. But but just and I don't want to, and again, feel free to stop me if I, if I go down a rabbit hole here, but just for your listeners to understand what we're talking about with the remittitur. What the remittitur is, on the appellate level or what like I said, it's the remittitur. In California, the mandate in the federal appellate courts is after the appellate decision is issued, the parties have a couple of have some time, typically 14 days or so. I apologize otherwise in California, to ask the court to their the case. You go rehearing if the federal federal appellate courts and back are just to rehear the case, if and when that's denied, the remittitur is issued or the mandate. what the remittitur does is that's the legal mechanism that actually sends the case back to the lower court for the lower courts to enforce whatever judgment it is that the higher court ordered it to do. So basically, now you get to the trial court can enforce the judgment. So in this case, what what's the what's the thing that the trial court has to enforce? Yes, to enforce the fact that that Ms. Riley, is that her income from that her I put not her income there her payments from the Medicaid do not count as income. And that's binding now? Well, the problem is you It takes a while to prepare a cert petition. And the SIR process is such that probably the de facto position is even while while you're writing a cert petition, and you file with the court, they're waiting to hear it. There's no legal mechanism allowing the trial court to not enforce its judgment during that time during this cause harm. irreparable harm. And that's the key there that even if cert is granted, and they that the court finds out that the petitioners show one, it's like, whoops, you just failed to collect all this money, or you just, you know, we really can't fix it. Sorry, really sour grapes.

Tim Kowal: 17:43

So does that lead to an issue of potential mootness for the petition for certiorari, if if this order that's requested to be reviewed by the US Supreme Court is already being enforced and causing harm? And as a Supreme Court look at that is making its ultimate remedy potentially moot?

John Reeves: 17:59

You know, that's a really good question. I'll admit, I never thought about that, that the standard that they use doesn't include the concept of, excuse me the concept of mootness. But I suppose it could I can't think of a circumstance under which you live. But I that's an interesting concept. I suppose it could. So mostly, what's animating is just just protecting the client from... Yes. Exactly. And so if the California Supreme Court stays the remitter, or federal appellate court stays its mandate, which which the California Supreme Court did here, that means that the lower court does not have the authority to proceed with executing what the California the California Supreme Court basically puts the effect of its ruling on hold. That's what happens. And it is a relatively rare thing to be done. It's not unheard of, but it's relatively rare.

Tim Kowal: 18:49

Yeah. So he said, it's, it's rare. Does that suggest that the California Supreme Court maybe anticipated this was likely to be taken up by the US Supreme Court?

John Reeves: 18:58

Absolutely. I think that especially because it was a four three decision in a matter that that where there was an expose, listen, acknowledged, split, where they basically acknowledged for all practical purposes, that they were really differently from the Fifth Circuit and the Minnesota Supreme Court. Yes, absolutely. Yeah. Where is it? Now, interestingly, go ahead.

Jeff Lewis: 19:17

Now this is a chicken or an egg situation is the fact that they stayed the remand make it more likely that cert would be granted?

John Reeves: 19:26

That that part? I don't I honestly don't know. Certainly, it means the California Supreme Court thinks it'll be granted. Now there. I'm not aware of any studies that look to see where when when the lower court be at the Court of Appeals or the state Supreme Court stays the remand or the mandate. How much that affects the likelihood of a supreme grad I I do know that the I can think of at least a couple of federal examples where the Court of Appeals has granted the motion to stay the mandate and then the Supreme Court denies it. cert. But on the other side of that, that sort of leads into another thing. There is a procedure that Walton happened here the question well, what if the California Supreme Court had denied the remittitur? Here? Would there be any other relief that the that Moran housing could have sought? Yo to stay or to, you know, to prevent this thing for God with their actual Yes, they could have applied to what's called one of the circuit Justices of the US Supreme Court. This is this is where we get into the the what what Supreme Court specialist called the shadow docket. You saw this a lot of with the our former President Trump getting all these nationwide injunctions, and they go to the court and before they have a grad cert, they'd, you know, shoot down a nationwide injunction or something like that. What how this is the size Supreme Court practice that a lot of outside lawyers, even a lot of appellate lawyers don't know about what what that is, is every justice is aside as the circuit justice to oversee a particular circuit. What that means is if there's like an A, and the rules provide, that if the lower court denies the state refused to say, the remitted or the mandate, you can apply file an application to whoever the circuit justice is who's assigned to that circuit. And I'm embarrassed to admit, I don't know who the Ninth Circuit justice is right now. I think that at the time of this, it was Kagan, but don't quote me on that. And the circuit justice by himself or herself has the authority to grant the state pending cert. And this leads to something that used to see more of called in chambers opinion, if the Justice most of the time the Justice will just deny it. flat out that I know that because that happened to me twice. That's happened to be twice in the last three years.

Tim Kowal: 21:43

Looks like Elena Kagan.

John Reeves: 21:45

It is justice Kagan. Okay,

Tim Kowal: 21:46

The 11th circuit's guardian angel.

John Reeves: 21:48

Exactly. And so you can have an instance. So sometimes you get justices issuing what's called an in chambers opinion, it's an opinion just have that justice, because it's in chambers explain why they're granted or denied the application. But you haven't seen that a lot in the last few years. Instead, what most what the courts are doing with most of these applications? Well, what the ones they think are worth further review is the Justice will refer to the whole court, and the whole court itself will then issue a decision. Now, of course, that didn't happen here. It wasn't necessary. But if you get this grant of a stay pending cert from a circuit justice or the court, that's a that's a darn good indication that your cert your cert petition is going to be granted it's not guaranteed, but it's it's far more far more likely than not.

Tim Kowal: 22:32

Yeah. Okay. That's, that's interesting. So let's discuss now amicus briefs more generally, or more broadly, some recent research has shown that the number of Amica briefs has grown over the past 20 years or so. And I'd like to share with our audience some stats that I found, startling, they come from the AMA 2021 posed by California appellate attorney Kirk Jenkins, at the California Supreme Court review. The post at that at that blog is titled California has more amicus briefs than adult than adult analytics researchers have realized, part one of a two part, I think it's a three part series. So here's the first data point that I found startling, and I'll post the link to that article in the show notes. So here's the first data point, researchers looked at two cohort cohorts of states and they looked at the number of amaka sprees filed in all the High Court decisions in those states. So in the first cohort, totally 19 states amicus briefs were filed in less than 5% of the cases. So a fairly modest amount of amicus briefs. But in the second cohort of states in which California is a member, amicus briefs were filed in over 25% of the cases. And in California, that figure was over 37%. And then here's the second data point that I found startling from that same Kurt Jenkins post, researcher, researchers looked at the abacus heavy cohort in which California is included for the years 1990 through 2004. And interestingly, although the percentage of cases with at least one Abacus edged up during those years, the average number of briefs per appellant didn't. This suggests that the increase was not so much in the number of briefs being filed in the same sorts of cases, as it was briefs filed in a wider cross section of cases. So I thought I shared that with you, john. And I wondered if you can comment on that. Because it seems like we I think in in a previous podcast, we talked about the number of amicus briefs kind of surging, and this kind of drills down a little bit and shows that it's not just the same kinds of you know, constitutional policy heavy cases that are just attracting more and more advocates for us. It seems like those submitting amicusabacus briefs are kind of spreading their efforts out and do a wider range of cases.

John Reeves: 24:44

Yes, I and I fully agree with you on that. And I think that that reflects well, among other things, how the appellate profession has gotten more and more specialized. And the and I and to be clear, I think this is a good thing. That more ambiguous briefs are being While in different types of cases across the board, I think it's good to have as long as the the issue itself within that subset, the type of case is your major issue. That's, that's worth the court's time. It reflects a growing concern on the appellate level of lawyers in general, to to make sure that the appellate courts are making the right decisions based on all as many good viable arguments they have before them. I can tell you right now, I mean, my like you say, I'm here in St. Louis, Missouri. And I've been filing quite a few ambiguous briefs on behalf of the Missouri organization of defense lawyers. But that's on the defense side in the Missouri Supreme Court. In in, in the insurance defense context, the which is another issue. I'll be obviously, you know, that that that's the thing, that's definitely more of a state court oriented thing. you'll ever see a US Supreme Court case on interpreting an insurance policy, it may be in federal court, but that's just because of diversity jurisdiction. But my point is, those kinds of cases can have just as major consequences for the average person, as a constitutional obligation be how do you interpret insurance policy? How do you you'll what is coverage? What is not? We all have insurance? And it's just that's just as input. That's it? And that's just one example?

Tim Kowal: 26:17

Yeah. Now, do you think if you're if you're an appellate jurist, and you've got a menu of different briefs that you can read for for any particular argument, are you going to tend to reach for, you know, for an amicus brief versus a party brief, depending on the kind of argument being made, like if it's a set statutory interpretation? I don't know, maybe the party's analysis will be will be just as good as any amaka spree. But if it's if it's a policy argument, you know, that the parties are going to argue, you know, for for the position of whoever's paying them, right, and advocates brief might have something more authentic to say about the policy analysis?

John Reeves: 26:49

That, you know, that's a good question. I, my initial answer is I'm not sure if I mean, I'm in terms of what the actual appellate judges and justices around this country do. I'm actually not sure what I've never seen any of any studies showing what what their preferences for what to read first. So in terms of what they actually do in their, their ivory towers and the hidden chambers, you I, your guest is just as good as mine. But having said that, one thing I can tell you is that at the US Supreme Court level, again, I can't guarantee this. I mean, I never had the privilege of working on the United States Supreme Court. But I mean, my I would strongly guess that in any case, the first if there's a brief by the US Solicitor General's office, that's the first brief that they're going to read, regardless of a thing, because they've got they've got some of the best appellate attorney attorneys out there. They give huge deference, not deference, but they give a huge consideration to the Solicitor General, they don't always agree with the Solicitor General, but they they usually have the best quality briefing and the best written arguments. So they're the most forthright with the court about what the case is actually about. So so that that that much I can I can tell you,

Tim Kowal: 28:00

yeah, yeah. So what what are you seeing in in the submissions of amicus briefs or the or their effectiveness, that maybe practitioners like Jeff and me who I haven't, I haven't, you know, sought out an amicus on any of my cases. And maybe you're seeing something that I should learn to see in some of my cases that have maybe if they if they have policy implications, or if they have, if it's even just a statutory analysis that could have broader relevance and maybe reaching out. So what sort of things are you seeing that that that I should train myself to look out for, in maybe soliciting advocates for some of my cases?

John Reeves: 28:34

Well, you're right. I mean, I mean, it is, excuse me, I apologize. I think if you're if you have an appeal, and you think it's it's a good issue, I mean, it it is worthwhile to solicit. Amica has briefs the I know that a lot of firms in DC at the US Supreme Court level are doing that they have they'll send out like an anarchist memo to different organizations, different nonprofits, asking, you're soliciting their requests, like here in Missouri, the Missouri organization, defense lawyers, we actually on our homepage have a submission panel you could do where you can submit a submit a request. And it's worth it. The bigger if, and obviously a lot of this depends on the size of the team. You have. I mean, if you have a huge team, I just filed a dynamic us brief on the merits. The US Supreme Court case said that the party I filed for is a very large, very well known dc, dc Supreme Court practice. I mean, they had this group had one lawyer designated as just as the person to coordinate the filing of all the advocacy groups to reach out to the reach out to the to the potential ameche and make sure everyone was on the same page and whatnot. And yeah, and that goes to beforehand to soliciting potential briefs and whatnot. So yes, it is worth it. The the now Now I will say one other thing, the one context in which I would strongly advise against filing and because briefs Unless there you have a really good reason for it is if you're asking, you know, if you're seeking certain the Supreme Court of the United States or you're, you're asking the California Supreme Court to grant or I apologize, if you're opposing the granting of search in the Supreme Court of the United States, or if you're posing the California Supreme Court, accepting discretionary review. It's typically not considered good to file an amicus brief IT support the argument that the court shouldn't grant review. And the reason for that is you don't want to draw more attention to the case than then it should like if you're so if you're opposing review, you want to you want to minimize say what they made the right decision below. It's no big deal. And filing an amicus briefs in that context, unless you have a really good reason for it is just going to bring more attention to the case for the court. And the court could very well be like, well, wow, look, all these parties opposing the granting of, you know, saying we should we shouldn't grant this will affect the way people are concerned. There's clearly something there we better grants. That's

Tim Kowal: 31:07

Yeah, yeah. A lot of subtle analysis going on here. Yeah. All right, Jeff, I think it's that time in the show where we get to the lightning round.

Jeff Lewis: 31:15

Okay. Hey, john, Have you listened to this show before?

John Reeves: 31:19

I'm embarrassed to say no, I haven't. What is the lightning round. I'm, I'm super excited to hear.

Jeff Lewis: 31:23

Fantastic than you'll be surprised each of these important questions that vex appellate nerds around the globe. We're looking for a short response one sentence, perhaps these very vital important questions. Here we go.

Font preference: 31:41

century schoolbook, garamond or something else?

John Reeves: 31:45

Century schoolbook without question.

Jeff Lewis: 31:48

That's the right answer.

John Reeves: 31:50

Good. I'm on the right show. Good. Yeah.

Tim Kowal: 31:53

And we appreciate your emphasis as well. Lack of equivocation.

Jeff Lewis: 31:56

Yes. two spaces or one after a period

John Reeves: 32:00

one without question once again.

Tim Kowal: 32:03

Oh, you're making friends with Jeff today.

Jeff Lewis: 32:06

pled or pleaded

John Reeves: 32:08

Yes. A lot my appellate Twitter but I'm sorry, say one more time. What was it? What was the question? I'm sorry. Or pleaded pled

Jeff Lewis: 32:18

All right. Very good. You're three for three.

Tim Kowal: 32:21

Yeah, no, I'm gonna have to count you down on on pled. You're just realize that you're regularizing verbs willy nilly. But But that means nothing but don't just I thought you were a strict constructionist john.

John Reeves: 32:36

No, I am an originalist. originalist is not the same thing as a strict constructionist. But that's that's a debate for another time.

Tim Kowal: 32:43

Fair enough.

Jeff Lewis: 32:44

All right, fantastic. 3 for 3 you're welcome to come back any any time any parting thoughts you want to impart upon our California listeners to our audience?

John Reeves: 32:53

Appellate? If you if for those who are well, what what's the difference between an appellate practice and a trial practice after the trial practitioner can be likened to the high school quarterback on a Friday night who gets all the all the glory he gets the job done and everything. The appellate practitioner is the nerd that does the high school quarterbacks homework for him to make sure that everything's in line. And unlike High School nerds, the appellant nerds love doing that and staying out of the limelight. That's the difference.

Tim Kowal: 33:22

Well, it's very inglorious and self deprecating to us. But I think it's fairly accurate. Yep. Yep. All right, john, we appreciate you coming on the show and taking some time with us.

John Reeves: 33:34

My pleasure. My pleasure. Thanks, Jim. Thanks, Joe.

Tim Kowal: 33:37

All right, Jeff. Well, let's get to some get to some recent appellate news and tidbits out of the California Court of Appeal. And john agreed to stick around with us and listen in and if he has any pot shots, he'll he'll chime in with them.

Jeff Lewis: 33:49

Okay, great. So one case that caught my eye. It's from March of this year, but it caught my eye because I was recently recently lecturing to some CPAs. About best tips for testifying as a forensic expert. And a case caught my eye involving Jillian Michaels, one of the trainers from the biggest loser, that weight loss show.

Tim Kowal: 34:07

No, yeah, I usually hear on the radio all the time.

Jeff Lewis: 34:09

Yeah. So she had a case. It's Michaels versus Greenberg Traurig. 2021 62 Cal.App.5th 512. I'll put in the show notes. The thing that caught my eye about this case is first of all, it's a legal malpractice case. Sargon was used to try to exclude expert testimony.

Tim Kowal: 34:29

Yeah, Sargon is the big, recent California Supreme Court case that that says that speculative expert opinions will be excluded.

Jeff Lewis: 34:38

Yeah, and more specifically, before a jury hears testimony that judge is supposed to act as gatekeeper and keep away from the jury any speculative opinions. The interesting thing about this Michaels case is it's an MSJ case. And on summary judgment, Jillian Michaels offered up an expert opinion regarding millions of dollars in damages that she's suffered as a result of malpractice. And at the trial level at MSJ the court applied Sargon and excluded it. And that result was reversed on appeal in the second district case that came out in March. What I found interesting is that the second district found that at the MSJ stage, unlike right before trial, right before a jury is going to hear evidence at the MSJ stage, opposing declarations are to be construed liberally. And experts don't necessarily need to lay the foundation for their opinions and explain their methodologies to the same degree and with the same specificity as is required at the time of trial. So it gives those opposing an MSJ (most often plaintiffs) a little more wiggle room and a little more vagueness in terms of offering up expert testimony. It is interesting decision. But I highly encourage trial lawyers to read it.

Tim Kowal: 35:55

That is interesting. Is that a second district case, Jeff,

Jeff Lewis: 35:58

Second district division eight,

Tim Kowal: 36:00

Because it reminds me of a case I was reading I believe out of the fourth district that came to the opposite conclusion. I don't believe it. It was on an on a motion for summary judgment and it was a it was a personal injury case against the against Caltrans for a design defect of a highway interchange off ramp. And the plaintiff experts submitted declaration stating that there was a design defect and the government Caltrans asserted the defense of design immunity. and and the the court granted the Caltrans summary judgment. And even though plaintiff expert declaration seemed to create a triable issue of fact, that was disregarded. I think this case seems like it cuts the other way on that.

Jeff Lewis: 36:44

Yeah, yeah, I recall us discussing that case in one of our shows. And

Tim Kowal: 36:48

yeah, I'll see if I can take that up and put it in the show notes. Okay, great. Great. And, and also, when you mentioned this, this Jillian Michaels case, to me, it reminded me a few episodes back, you had told me that you had never seen a court reverse Court of Appeal reverse because of an incorrect evidentiary ruling made by the trial court. So after you mentioned that I set out to find a case like and rub your nose in it and prove you wrong. And it took me a while but our listeners might want to take a look at the second district case from June 2021. Nicholson versus Southern California Edison company. It's an unpublished opinion, but the case involved an injured electrician who sued as Edison for negligence. But the trial court granted summary judgment for Edison by excluding the plaintiffs testimony. And the Court of Appeal held that this was an abuse of discretion. The evidence was based on personal knowledge. So the ruling was incorrect as a matter of evidence, and the evidence was relevant to the material facts. So it was prejudicial.

Jeff Lewis: 37:45

All right, well consider my nose rubbed. But to clarify, what I was saying is I've never had one of my appeals reversed on one of those grounds. But point taken,

Tim Kowal: 37:53

alright, but I'll be watching your cases, then Jeff.

Jeff Lewis: 37:58

And then I also want to point out the you know, California every year puts out statistics regarding the number of cases that are filed in the Superior Court and the Court of Appeal and how they're disposed of and how long it takes for each court or each district to resolve cases I always find reading this report. Interesting. A new report was just issued, and we'll link to it in our show notes. But the thing that I found most interesting is always the number one question I get from Trial Lawyers is: how long is this appeal going to take? And this report shows that 90% of all appeals, from the moment the notice of appeal is filed to opinion, the shortest disposition for 90% of appeals is in the second district division 6 at 687 days. That's from the filing the notice appeal to opinion. And the longest is the second district division 1 at 798 days. I always find that interesting to see the trends in terms of how long it's taking for opinions to come out on cases.

Tim Kowal: 38:58

Is that the longest side, I thought about the longest head had been coming out of the sixth district if I wasn't mistaken. I wonder if they dropped out of the running, maybe transferred a lot of cases

Jeff Lewis: 39:09

now. Maybe we could do a deep dive. Now keep in mind, this is for 90% of the cases. And I wonder if that 10% contains some outlier cases. The other interesting fact is this tracks the statistics report tracks criminal, civil and total rates of affirmative and in this latest report 78% of civil matters result in a being affirmed by the Courts of Appeal. And that's slightly lower the prior year was 79%. So I don't know if there's a trend there, but that's interesting. Yeah. Okay. All right. Well, that wraps up this episode.

Tim Kowal: 39:46

If you have suggestions for future episodes, please email us at Cal podcast@gmail.com. That's c a l podcast@gmail.com. In our in our upcoming episodes, look for tips on how to lay the groundwork for appeal when preparing for trial.

Announcer: 40:01

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 o podcast.com. That's cal podcast.com. Thanks to Jonathan Caro for Intro music. Thank you for listening and please join us again

I was just wondering this myself: What happens to your arguments – your sound, cogent, and trenchant arguments – in a motion to dismiss an appeal, after the Court of Appeal summarily dismisses your motion? Are your arguments dead and gone? Or may you raise them again in your respondent's brief?

The answer is: You may re-argue your motion to dismiss in your respondent's brief. And, as was the case in Casey v. Sacramento Public Law Library (D3 Jul. 12, 2021) no. C089936 (nonpub. opn.), the court may re-deny your motion.

In Casey, the library barred the plaintiff from using the self-help center. (Sounds like a story there, but the reader is not let in on it.) The plaintiff sued. Mysteriously, a voluntary dismissal is filed, and the complaint is dismissed. The plaintiff appealed from the dismissal.

Too late, the respondent library argued. The appeal was not filed until more than 180 days after the voluntary dismissal, beyond the outer limit under California Rules of Court rule 8.108. The respondent moved to dismiss, but the Court of Appeal summarily denied that motion.

So the respondent tried again in its respondent's brief. The court said this was permissible:

"Before the record was filed, defendants moved to dismiss the appeal as untimely, and plaintiff opposed the motion. Although we denied the motion, our order does not preclude a later assertion of the issue. (Chernett v. Jacques (1988) 202 Cal.App.3d 69, 71 [initial denial of motion to dismiss “does not evidence this court was able to consider and decide the merits of the dismissability issue in the context of an adequate record and full briefing of the issue”].)"

So this time, the Court of Appeal explained its rationale. But it still refused to dismiss:

"A voluntary dismissal under [Code of Civil Procedure section] 581, subdivision (b)(1) by written request to the clerk is not a final judgment, as no judgment, final or otherwise, is necessary to the dismissal. [Citation.] A voluntary dismissal is a ministerial act, not a judicial act, and not appealable. [Citation.]” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1358, 1364-1365; see also Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 974-975.)"

Thus, even if the plaintiff-appellant had filed the request for dismissal, he would not have been required to file an appeal within 180 days from that date.

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.

Do appellate judges want to hear from you at oral argument? Contrary to many appellate practitioners' perspective in California state courts, Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that the unwritten rule among federal appellate judges is to come to conference with a tentative vote, otherwise they won't get assigned authorship.

Despite this, however, Judge Bacharach has changed his mind many times based on oral argument, and once even wrote two separate opinions, one to affirm, and the other to reverse!

Watch the clip here.

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

You are wasting your best opportunity to persuade if you are not prepare complete tables of contents in your briefs, Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me.

The table of contents shows your reader the gist and structure of your brief. Yet probably half of litigants are leaving this rich vein unmined.

Watch the clip here.

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

One of the first questions an appellate attorney tries to answer is whether there is an appealable order. It is pretty obvious why this is important: if the order is not appealable, your appeal will lose.

But have you also considered: if you appeal from a nonappealable order, your entire case might lose?

That is what happened in Villegas v. Six Flags Entertainment Corporation (D2d4 Jun. 29, 2021) no. B295352 (nonpub. opn.). The appellants appealed from the denial of their class certification motion. These normally are appealable under the "death knell" doctrine, because it effectively kills the class action.

But it was not appealable here, and the appeal was dismissed. By the time it was dismissed, the five-year statute had run and the plaintiff-appellants had not brought their case to trial. Case dismissed.

The Death Knell Doctrine Does Not Apply When PAGA Claims Are Also Asserted:

Unfortunately for the appellants, the death-knell doctrine does not apply – and the denial of class cert is not appealable – when the plaintiff-appellants also have PAGA claims. (Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 311 (Munoz) [“Given the potential for recovery of significant civil penalties if the PAGA claims are successful, as well as attorney fees and costs, plaintiffs have ample financial incentive to pursue the remaining representative claims under the PAGA and, thereafter, pursue their appeal from the trial court's order denying class certification. Denial of class certification where the PAGA claims remain in the trial court would not have the ‘legal effect’ of a final judgment ....”].)

Plaintiffs’ appeal, therefore, was from an interlocutory, nonappealable order.

A Defective Notice of Appeal – Including Appealing from a Nonappealable Order – Does Not Toll the Five-Year Statute to Bring a Case to Trial:

Normally, taking an appeal stays the trial court proceedings. Code of Civil Procedure section 916, subdivision (a) provides that “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...."

The automatic appellate stay tolls the five-year statute under Code of Civil Procedure section 583.310. The three statutory exceptions that toll the five-year limit are periods when: “(a) [t]he jurisdiction of the court to try the action was suspended[;] [¶] (b) [p]rosecution or trial of the action was stayed or enjoined[;][and] [¶] (c) [b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile.” (§ 583.340, subds. (a)-(c).)

But the automatic appellate stay under section 916 only applies "upon a 'duly perfected' appeal." (Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 146 (Hearn Pacific).) It therefore follows that an “invalid” appeal does “not affect the trial court's jurisdiction to proceed. [Citations.]” (Id. at pp. 146-147; see also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666 (Pazderka) [If an “order is nonappealable, the appeal was never perfected and the trial court retained jurisdiction ....”].)

At this point, however, it is fair to ask: Who gets to decide if the appeal is defective? If the notice of appeal is defective on its face, then the rule makes sense. But what if the question of appealability or nonappealability turn on factors extrinsic to the notice of appeal?

Under Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401 (Hopkins), for example, there is support for the argument that where the appealability or nonappealability "depends on facts that are at least theoretically disputable," then "[a]rguably the appellate court acquires exclusive jurisdiction in such a case to determine whether the appeal is in fact untimely, and until it has made that determination the trial court is without power in the matter.”

Here, the appellants noted the trial court itself said, "I think I've lost jurisdiction," and "I don't have jurisdiction. I can't do nothing [sic]." So how can the appellants be charged with the time consumed by the appeal when the trial court acquiesced in the putative stay?

But the Second District Court of Appeal here was not persuaded. The existence of the appellants' PAGA claims were not disputable. The appeal was not perfected. Thus, the appellants did not get the benefit of the extra 118 days consumed by the dismissed appeal, and five-year period expired.

Takeaway: Appellants ultimately lost their entire case simply by taking an appeal from a nonappealable order. Almost certainly no one imagined the potential for such an outcome. It can be difficult to predict the problems that can arise from appealing a nonappealable order. In this case, at least, it certainly would have been worth consulting an appellate attorney before filing the notice of appeal.

Avoid "throat-clearing" in your writing, but have a care for when "softening" may be needed.

Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that meaningless expressions, like, "It should be noted that," are largely overused. But they can serve a useful purpose.

I recalled this anecdote about novelist James Thurber, who was once asked: “Why did you have a comma in the sentence, ‘After dinner, the men went into the living-room’?” His answer: “This particular comma was Ross’s way of giving the men time to push back their chairs and stand up.”

Watch the clip here.

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

Did you request a statement of decision?

Did you object to the proposed statement of decision?

These are among the first questions I ask after there has been a bench trial. Three recent appellate decisions demonstrate how easy it can be to forfeit strong issues on appeal by failing to request a statement of decision, or even when a statement of decision has been issued, by failing to object to omissions or defects to give the trial court the opportunity to correct them.

By failing any of the procedural steps in perfecting the record on the statement of decision, the deadline "implied findings" doctrine will be invoked, by which the Court of Appeal will simply infer that the trial court quietly implied any and all findings needed to affirm the judgment. That doctrine almost guarantees affirmance.

Failure to Request a Statement of Decision Waives Any Error of Omitted Findings:

Even when no party requests a statement of decision, the trial court typically issues a reasoned decision following a bench trial. What is the significance of the trial court's reasoning?

The answer: Not much.

This is what happened in Ko v. Ly (Jul. 26, 2021 D2d8) no. B303438 (nonpub. opn.), involving a series of business and real estate investment transactions that went sour. After a bench trial, the trial court issued a "partial tentative statement of decision" in favor of the plaintiff. While a tentative decision “may be valuable in illustrating the trial judge's theory,” it will not “be used to impeach the order or judgment on appeal. ... In the absence of a statement of decision, a reviewing court looks only to the judgment to determine error.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268 (Shaw).)

The defendant-appellant argued that the trial court failed to make any findings concerning one of the breach of contract claims at issue, and thus the judgment against the defendant on that claim could not stand. But the appellant could not establish this omission because it had failed to request a statement of decision. In the absence of a formal statement of decision duly demand by the appellant pursuant to Code of Civil Procedure section 632, the reviewing court will “presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record. In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence.” (Shaw, supra, 170 Cal.App.4th at p. 267.)

Failure to Object to Missing Finding Creates Implied Finding Against Appellant:

So the appellant has to request a statement of decision. But what happens if the appellant has requested the statement of decision, but on one critical issue, the trial court doesn't make a finding one way or the other? The lesson in Odell v. Salvation Army (Jul. 23, 2021 D2d4) no. B306219 (nonpub. opn.) is that failing to alert the trial court to the omission is probably fatal.

In Odell, the appellant sought to invoke contractual arbitration. There was a dispute whether the plaintiff had signed the contract with the arbitration clause. The appellant argued both that the plaintiff had signed the contract, and that, even if the plaintiff had not signed it, an implied-in-fact contract was created because the plaintiff received the contract document and remaining employed.

The Salvation Army requested a statement of decision (though it neglected to specify the controverted issues on which findings were requested). (Code Civ. Proc., §§ 632, 1291.) But in its statement of decision the trial court stated: "The sole issue" is whether the contract was signed. The court omitted any findings about the appellant's implied-in-fact contract theory. The appellant raised this defect on appeal.

But the challenge did not succeed. Unless an appellant alerts the trial court of an omission in a statement of decision, the Court of Appeal will invoke the implied findings doctrine and infer the trial court intended to make the omitted finding against the appellant:

"Although the statement of decision did not expressly address the Salvation Army's argument that Odell had entered into an implied-in-fact arbitration agreement, the Salvation Army did not object to this omission. Thus, we presume the trial court impliedly found that the Salvation Army failed to prove the existence of an implied-in-fact agreement. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2020) Ch. 8-B ¶ 8:23 [“Appellate courts ... invoke the doctrine of ‘implied findings’ where the parties failed to timely bring alleged deficiencies in a requested statement of decision to the trial court's attention”].)"

To Preserve a Challenge to a Finding, the Appellant Must Request a Statement of Decision Making the Finding, and Object to the Omission:

The appellant gets the statement-of-decision procedure right in Bernstein v. Box-N-Go, LLC (Jul. 27, 2021 D2d3) no. B297863 (nonpub. opn.). But as the lengthy analysis indicates, it is not always easy.

Bernstein dealt with a dispute over company management, with the plaintiff having been ousted from the defendant company by the individual defendants. But in finding for the plaintiff, the trial court found that all defendants were liable for breach of a purchase obligation to the plaintiff, which the operating agreement rather plainly made the obligation of the company alone.

The individual defendant-appellants challenged this finding by requesting a statement of decision, and objecting to the finding in the proposed statement of decision. But the trial court overruled the objection.

When the appellant raised the challenge again on appeal, the plaintiff-respondent argued the appellant still had not done enough to preserve the challenge. The respondent argued the appellant's objection to the proposed statement of decision had focused on the lack of evidence, rather than the finding itself.

The Court of Appeal held the appellants had sufficiently objected to the proposed. While generalized disagreements with a proposed statement of decision are insufficient, the appellants' objections were specific enough because they identified the specific issue that "judgment should only be awarded against [the company] and not the individual defendants."

As a result, the court held that "we cannot infer that the trial court intended to make an alter ego finding when the record shows the court declined to do so after defendants objected to the proposed statement of decision on that specific ground." (Code Civ. Proc., § 634; Culbertson v. Cizek (1964) 225 Cal.App.2d 451, 465–466 (Culbertson); In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133–1134 (Marriage of Arceneaux).)

Although unpublished, the opinion provides a good summary of the applicable published authorities on the procedures for requesting and objecting to statements of decision. These authorities are pasted below for you to clip-and-save:

Code of Civil Procedure section 632 directs the trial court, upon the trial of a question of fact, to “ ‘issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. ’ ” This requirement “ ‘is for the benefit of the court and the parties.’ ” (Whittington v. McKinney (1991) 234 Cal.App.3d 123, 126.) “ ‘To the court it gives an opportunity to place upon [the] record, in definite written form, its view of the facts and the law of the case, and to make the case easily reviewable on appeal by exhibiting the exact grounds upon which judgment rests. To the parties, it furnishes the means, in many instances, of having their cause reviewed without great expense.’ ” (Id. at pp. 126–127.)

Because the statement of decision reflects the trial court's resolution of disputed factual issues, it necessarily affects the scope of appellate review. (See Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2020) ¶¶ 16:197 to 16:216.5.) “Where [the] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.” (Marriage of Hoffmeister, supra, 191 Cal.App.3d at p. 358.) But “[w]hen a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court ..., it shall not be inferred on appeal ... that the trial court decided in favor of the prevailing party as to those facts or on that issue.” (Code Civ. Proc., § 634.) Under this mandate, a proper objection to a proposed statement of decision avoids the doctrine of implied findings, and we will not presume that the trial court made a factual finding necessary to sustain the judgment unless the finding was explicitly stated. (See Culbertson v. Cizek (1964) 225 Cal.App.2d 451, 465–466 (Culbertson); see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Marriage of Arceneaux) [“if omissions or ambiguities in the statement are timely brought to the trial court's attention, the appellate court will not imply findings in favor of the prevailing party”].)

Thus, “[w]ritten findings are required on all material issues raised by the pleadings and evidence, unless they are waived, and if the trial court renders judgment without making findings on all material issues, the case must be reversed on appeal. [Citations.] Reversal is compelled if there was evidence introduced on such issues and this evidence was sufficient to have sustained [a] finding in favor of the party complaining.” (Duff v. Duff (1967) 256 Cal.App.2d 781, 785 (Duff).)

A party is not required to object to legal errors appearing on the face of the statement of decision, as such errors are not waived. (United Services Auto. Assn. v. Dalrymple (1991) 232 Cal.App.3d 182, 186.) And, where a statement of decision clearly expresses the legal and factual basis for the trial court's resolution of controverted issues, we will not imply findings that the trial court did not make. (See Paterno v. State of California (2003) 113 Cal.App.4th 998, 1015 [“ ‘When the record clearly demonstrates what the trial court did, we will not presume it did something different’ ”].)

And on the subject of properly preserving objections to the statement of decision:

Code of Civil Procedure section 634 “does not specify the particular means that the party may use to direct the court's attention to the claimed defects in the statement [of decision].” (Marriage of Arceneaux, supra, 51 Cal.3d at p. 1134.) Nonetheless, when read together with rule 3.1590 of the California Rules of Court, the statute “clearly contemplate[s] any defects in the trial court's statement of decision must be brought to the court's attention through specific objections to the statement itself, not through a proposed alternative statement of decision served prior to the court's issuance of its own statement.”2 (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380 (Golden Eagle); see also Marriage of Arceneaux, at p. 1138 [a party may not “avoid the presumption [of correctness] merely by asking for findings on an issue without challenging the findings when actually made”].) Beyond this directive, the objecting party needs only to identify the alleged omission or ambiguity “with sufficient particularity to allow the trial court to correct the defect.” (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 498 (Ermoian); Golden Eagle, at p. 1380 [an objection is sufficient if it “allows the court to focus on the facts or issues the party contends were not resolved or whose resolution is ambiguous”]; cf. Marriage of Arceneaux, at p. 1138 [“it would be unfair to allow counsel to lull the trial court and opposing counsel into believing the statement of decision was acceptable, and thereafter to take advantage of an error on appeal although it could have been corrected at trial”].)

Finally, I note that one of my most satisfying appellate wins came almost entirely as a result of perfecting the record on a statement of decision, which crystallized the fact that the trial court had indeed omitted findings on essential issues.

As the legal community tests the waters with in-person trials after the Covid lockdowns, pro tem judges may continue to be an attractive option. Like private arbitration, pro tem judges offer more flexibility and availability than Superior Court judges. And contrary to arbitration, parties electing to use a pro tem judge preserve their right to appeal.

Angelina Jolie and Brad Pitt went the route of hiring a pro tem judge for their family law case. After years of litigating child custody issues (one child is now 18), Jolie discovered their pro tem judge was working on more cases with Pitt's attorneys than previously disclosed. Getting the feeling she was the third wheel in the courtroom, Jolie filed a statement of disqualification.

Although the Superior Court rejected Jolie's objection, in a published opinion in Jolie v. Superior Court of Los Angeles (D2d7 Jul. 23, 2021) no. B308958, the Court of Appeal granted Jolie's writ petition. The pro tem judge had failed to disclose all of his appointments on Pitt's lawyers' cases, and the judge's work on those cases, in context with his failure to timely disclose it, created the appearance of impropriety requiring disqualification.

Justice Segal wrote a concurring opinion forcefully calling the Judicial Council to end the practice of allowing pro tem judges to accept private payment, noting that, until 30 years ago, it was not only disallowed, it was criminal: "But just because it is no longer criminal for a temporary judge to receive compensation from private parties doesn't mean it's a good idea."

Jolie OKs the Pro Tem Judge's Original Disclosures, But Subsequent Belated Disclosures Prompt Jolie to Object:

Jolie and Pitt selected Judge John W. Ouderkirk (Ret.) for their case. (Judge Ouderkirk presided over the Reginald Denny trial in 1993.) Judge Ouderkirk disclosed his involvement on some other cases that also happened to involve Pitt's attorneys. Jolie did not object. In fact, the parties both agreed to extend Judge Ouderkirk's appointment. Judge Ouderkirk made disclosures of other cases he was working, including where Pitt's attorneys were involved as counsel, and even noting the possibility he may take future cases that "might involve a party, lawyer, law firm and/or witnesses involved in the Jolie/Pitt matter." This apparently was ok by Jolie in 2018, who agreed to extend Judge Ouderkirk's appointment again in both 2018 and 2019.

Apparently unhappy with Judge Ouderkirk's 2019 custody ruling, Jolie requested additional disclosures. It turned out that Judge Ouderkirk had taken two new matters in which Pitt's attorneys were counsel of record. Worse, Judge Ouderkirk apparently had overlooked a 2017 case in his prior disclosures that also involved Pitt's counsel.

Jolie filed a statement of disqualification, and the Judicial Council appointed Orange County Superior Court Judge Larsh to the matter. Judge Larsh denied disqualification, finding Jolie's statement untimely, as the recent disclosures "did not substantially change from the 2018 disclosures."

Jolie filed her petition for a writ of mandate in the Court of Appeal four days later. Under Code of Civil Procedure section 170.3(d), review of an order denying disqualification of a judge “may be reviewed only by a writ of mandate from the appropriate court of appeal.”

About three weeks later, the Court of Appeal issued an order to show cause why Jolie's relief should not be granted. (But curiously, the court denied Jolie's request for a stay of further proceedings before Judge Ouderkirk in the meantime. The opinion notes "an extended evidentiary hearing" proceeded before Judge Ouderkirk after the OSC issued. Apparently this was wasted effort that would have been avoided by the issuance of a stay.)

Legal Standard for Judicial Disqualification:

Pro tem judges are authorized under article VI, section 21 of the California Constitution. But pursuant to judicial canon 6(D)(3)(a)(vii)(C), a temporary judge must “from the time of notice and acceptance of appointment until termination of the appointment,” disqualify himself or herself if, for any reason, “a person aware of the facts might reasonably entertain a doubt that the temporary judge would be able to be impartial.” Likewise, canon 6(D)(5)(a) requires the temporary judge to disclose in writing any information relevant to canon 6(D)(5)(a), including "personal or professional relationships known to the temporary judge...with the party, lawyer, or law firm in the current proceeding."

When do the disclosures have to be made? California Rules of Court rule 2.831(d) requires that matters subject to disclosure to the parties under the Code of Judicial Ethics must be disclosed no later than five days after designation as a temporary judge or, as to matters not known at the time of designation, “as soon as practicable thereafter.”

But the failure to timely disclose does not create an automatic disqualification. Instead, under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) (and for pro tem judges, canon 6D(3)(a)(vii)(C)), the judge must be disqualified if “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”

Standard of Review for Judicial Disqualification Is De Novo:

Rejecting Pitt's argument that disqualification is reviewed for abuse of discretion, the Second District Court of Appeal noted that the Supreme Court in Haworth v. Superior Court (2010) 50 Cal.4th 372, 389 (Haworth) had not decided that question, but that in the context of private contractual arbitration involving failure to disclose, the standard was de novo. (Haworth, supra, 50 Cal.4th at p. 383. See Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 391-392 [“[t]he weight of authority supports that where, as here, the relevant facts are undisputed, a de novo review standard applies to a section 170.1(a)(6)(A)(iii) challenge to a claimed appearance of partiality”].)

The Temporary Judge's Untimely Disclosures Mandated Disqualification:

The court held that Jolie's statement of disqualification was not untimely. Delay in seeking to disqualify a judge “constitutes forfeiture or an implied waiver of the disqualification.” (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337.) But “[a] party cannot waive a right she does not know she has.” (Honeycutt v. JPMorgan Chase Bank, N.A. (2018) 25 Cal.App.5th 909, 931 (Honeycutt).)

The Superior Court had noted Jolie was on notice of Judge Ouderkirk's "significant history" of serving on cases in which Pitt's attorneys were counsel of record. "True," the Court of Appeal notes, "but history is different from current events." Only recently had Jolie learned that Judge Ouderkirk had been engaged for two new matters, and Jolie only learned it because she asked – Judge Ouderkirk had failed to comply with his automatic disclosure duty.

Judge Ouderkirk blamed his assistants for failing to disclose. But that excuse doesn't work for attorneys, and it doesn't work for judges, either. "No more than an attorney can excuse his or her misconduct by blaming an assistant, Judge Ouderkirk must accept responsibility for the ethical violation that occurred here. (See canon 6D(2)(a) [a temporary judge must comply with canon 3C(1) requiring the discharge of administrative responsibilities without bias and with competence]; cf. Layton v. State Bar (1990) 50 Cal.3d 889, 900 [an attorney cannot escape responsibility for his breach of ethics by blaming his secretary]; Honeycutt, supra, 25 Cal.App.5th at p. 929, fn. 12.)"

As to disqualification, the court held that disqualification was required under section 170.1(a)(6)(A)(iii) and canon 6D(3)(a)(vii)(C). The circumstances relevant here were: (1) the temporary judge failed to voluntarily disclose new professional relationships; (2) those professional relationships "renew[ed] and expand[ed] the prior relationships; and (3) Jolie had a new attorney, who had no other professional relationships with the temporary judge. "When coupled with Judge Ouderkirk's breach of his ethical obligation to timely disclose the new professional relationships in 2019 and 2020, the broad standard of those provisions—“might reasonably entertain a doubt”—has certainly been satisfied."

Of significance was the fact that Jolie had a new attorney: "we do not believe it is irrelevant that Jolie is now represented by someone who is not a repeat-player in Judge Ouderkirk's court....That only one side in a case is represented by counsel who regularly uses the services of a privately compensated judge is one of the facts of which the hypothetical reasonable person would be aware in assessing whether that judge appears to be biased."

Concurring, Justice Segal Calls to End Privately-Paid Judging:

Justice Segal begins his pointed concurrence this way:

"I agree entirely with the opinion of the court. I write separately to express my concern that the following three propositions are currently the law in California: (1) Temporary judges are judges; (2) Judges cannot be privately compensated; (3) Temporary judges can be privately compensated. One of these statements must be wrong. I believe it is (3)."

Justice Segal goes on to remind the reader that, until just 1992, privately paid judging was not only not permitted, it was criminal. Some excerpts:

"when the Judicial Council proposed rules that recognized such a thing as a “privately compensated temporary judge,” several sitting judges responded with comments. Judge Robert H. O'Brien of the Los Angeles County Superior Court wrote that “joint operation” of the court “with private enterprise is an improper commingling of the [judicial] branch of government with private judging associations or individual private judges.”"

"Judge James T. Ford of the Sacramento County Superior Court wrote that privately compensating temporary judging was probably criminal."

"Judge Ford wrote: “While clearly not adopted with this recent phenomenon in mind, the Code stands for an important principle: justice and money do not mix. Judging is not in any way a private function; it is a quintessential public function, and should be administered without regard to compensation of the judge.”... “I urge the judiciary to recognize that privately compensating judges pro tempore is illegal and pernicious. We are not for sale, nor is the product of our labor.” (1992 Judicial Council Report, pp. 4, 25, 27, letter from Judge James T. Ford, Aug. 20, 1992.)"

"But just because it is no longer criminal for a temporary judge to receive compensation from private parties doesn't mean it's a good idea. The Legislature directed the Judicial Council to prescribe rules governing compensation of temporary judges. I believe the Judicial Council should adopt the rule its ad hoc committee recommended in 1993: Temporary judges may be paid by the court, but may not be privately compensated except when serving as court-appointed referees. The Judicial Council created the term “privately compensated temporary judge,” or at least approved the concept. In my view, it is time for the Judicial Council to reconsider that decision."

Watch this space.

Are the briefing limits in your court based on page count? Or word count?
If page count, you still may be better off using Times New Roman, says appellate attorney Frank Lowrey in this edition of the world famous CAL Podcast's Lightning Round.

Other vexing questions discussed: One space after a comma, or two? Pled, or pleaded? And where do you stand on the use of the citation parenthetical "(cleaned up)"?

Watch the clip here.

Appellate attorneys Jeff Lewis and Tim Kowal's entire interview with Frank Lowrey can be found at episode 13 of the California Appellate Law Podcast here.

In the ongoing probate litigation over the Disney estate in Lund v. Cowan, No. 20-55764 (9th Cir. 2021), the 9th Circuit recently called probate court "the Unhappiest Place on Earth" in response to Los Angeles Superior Court Judge David Cowan's actions against Walt Disney's grandson, Bradford Lund. Lund had already waited 15 years for his inheritance and won a court declaration of his mental competence. He entered into a settlement agreement to pay his trustees $14.5 million to step down.

But Judge Cowan refused to approve the settlement. Judge Cowan stated: "Do I want to give 200 million dollars, effectively, to someone who may suffer, on some level, from Down syndrome? The answer is no.”

Lund's attorney immediately informed Judge Cowan that Lund did not have Down syndrome (a 10-day trial in Arizona state court already adjudicated this). Judge Cowan refused to retract the statement. He approved the trustees' payment, but refused to allow Lund to replace them, Lund's attorneys said. Judge Cowan then appointed a temporary guardian ad litem over Lund, without holding a hearing.

Lund filed a statement of objection to Judge Cowan for judicial bias under Code of Civil Procedure section 170.1 because of the Down syndrome comment. Judge Cowan struck the statement under section 170.4(b) for setting forth "no legal grounds for disqualification."

Lund responded by suing Judge Cowan in district court, asserting due process claims under 42 U.S.C. § 1983, a Americans with Disabilities Act claim, and declaratory relief claims. The district court dismissed the claims with prejudice.

Claims Held Moot After Judge Cowan Reversed Himself:

Before briefing in the 9th Circuit was completed, Judge Cowan discharged the guardian ad litem and reassigned the case to a new judge. The 9th Circuit held this mooted most of Lund's claims.

“A party must maintain a live controversy through all stages of the litigation process.” Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 797 (9th Cir. 1999) (cleaned up). “If an action or a claim loses its character as a live controversy, then the action or claim becomes moot.” Id. at 797–98 (cleaned up).

The court held that Lund "no longer faces any harm from the appointment of the guardian ad litem because Judge Cowan has lifted the order appointing her. And any possibility of future harm sounds only in speculation, especially because Judge Cowan has transferred this case to another judge...."

ADA Claim Barred by Absolute Judicial Immunity:

The 9th Circuit also rejected Lund's ADA claim for money damages, invoking the doctrine of judicial immunity. “It is well settled that judges are generally immune from suit for money damages.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001).

Lund argued that Judge Cowan's derogatory and baseless comment was not specifically made in the context of ruling on a motion. Rather, Judge Cowan uttered it during a settlement hearing. The 9th Circuit rejected this distinction: "We reject a cramped and illogical reading of a judicial act that would include only instances when a judge expressly decides a formal motion or request. Indeed, the Supreme Court has remarked that even when a proceeding is “informal and ex parte,” that does not necessarily deprive “an act otherwise within a judge's lawful jurisdiction ... of its judicial character.”" Forrester v. White, 484 U.S. 219, 227 (1988).

The court describes the origin and purpose of judicial immunity:

"“Judicial immunity apparently originated, in medieval times, as a device for discouraging collateral attacks and thereby helping to establish appellate procedures as the standard system for correcting judicial error.” Id. at 225.

"Judicial immunity also serves the goal of judicial independence. As the Supreme Court has noted, “it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” Bradley v. Fisher, 80 U.S. 335, 347 (1871). Subjecting judges to liability for the grievances of litigants “would destroy that independence without which no judiciary can be either respectable or useful.” Id. In some cases, this commitment to judicial independence might result in unfairness to individual litigants. See Stump v. Sparkman, 435 U.S. 349, 363 (1978). But it is precisely in those types of unfair or controversial situations that judicial immunity may be more necessary to preserve judicial independence. Id. at 364."

Indeed, in the example of Mireles v. Waco (1991) 502 U.S. 9, after a defense lawyer failed to appear for a scheduled hearing, the judge instructed the police sent to arrest him to "rough him up a little" to teach him not to skip court dates. Despite the judge's possibly criminal actions that resulted in a police beating, the Supreme Court afforded absolute immunity because the misbehavior occurred while presiding over a court.

(Comment: Samuel Johnson, the famous British man of letters, had this to say about the doctrine that "the king can do no wrong": "'Sir, you are to consider, that in our constitution, according to its true principles, the King is the head; he is supreme; he is above every thing, and there is no power by which he can be tried. Therefore, it is, Sir, that we hold the King can do no wrong; that whatever may happen to be wrong in government may not be above our reach, by being ascribed to Majesty. Redress is always to be had against oppression, by punishing the immediate agents. The King, though he should command, cannot force a Judge to condemn a man unjustly; therefore it is the Judge whom we prosecute and punish.'" The extent to which modern Americans have expanded the privileges of the "sovereign" to nearly every agent of the state may have struck the 18th century monarchist as rather disturbing.)

Thus, the 9th Circuit held Judge Cowan's baseless accusation that Lund had Down syndrome, and his baseless assumption that this rendered him incompetent, "easily falls within the purview of a judicial act" because it was made "from the bench during an official settlement approval hearing" and "directly related to" the decision "whether to approve a proposed settlement agreement," and because "Lund's competency was central to the litigation."

The court did state it found Judge Cowan's comment "troubling." "But judicial immunity shields even incorrect or inappropriate statements if they were made during the performance of a judge's official duties." This includes even actions made with “malice or corruption of motive.” Forrester, 484 U.S. at 227.

Final Note:

The OC Register quotes Rick Black, a director at the Center for Estate Administration Reform in North Carolina, who said about this case: “The system is broken. This is purely an estate-trafficking case and it is being managed by predatory attorneys.” The 9th Circuit, on the other hand, suggests Lund's remedy is through the appellate courts, not federal lawsuits. But I have seen probate and conservatorship cases just get even further mired in the Court of Appeal.

In this commentator's view, what is needed is legislative reform. When basic civil liberties and bodily autonomy are concerned, the needful thing is to have lawyerly standards. The probate system has too few of these. Elastic discretionary standards, which are more typical of the probate system, afford no safeguards to a person's basic rights. They also neuter the right to meaningful appellate review.

The current system also tends to elevate dubious medical guesswork to the status of hard evidence. In the 1800s some doctors insisted that slaves ran away because of a medical condition, dubbed drapetomania. The basis problem persists today. Some years ago the American Psychoanalytic Association's public information committee wrote in its newsletter: "Indeed, there is indication of increasing derogation of analysis in the past few years." To address the problem, the Association hired a public relations consultant. To which a critic responded: "more might be accomplished if psychoanalysis were to undertake to rehabilitate its theory rather than its public image."

In the same way, our system of justice in probate court is not meant to proceed by diagnosing the opposition. We would do well to reform that system, rather than to simply continue pressing the various guilds at play into service.

When I wrote about Wong v. Lee (D2d1 Jul. 15, 201) no. B293892 (nonpub. opn.) last month, I noted its analysis and holding of the limits of the appellate stay doctrine. But after the opinion was modified (nonsubstantively) after petitions for rehearing, I noticed the case raises several other common appellate missteps that trial attorneys may find instructive.

Specifically, most of the appellants' arguments here were rejected as forfeited. The court also disregarded challenges because the appellants' briefing improperly cited to postjudgment matter in the appellate record in their challenge of the judgment.

In this divorce and proper division case, the family court issued a number of orders concerning the marital estate, including declaring rights to the family home, invalidating a loan and deed of trust on a rental property and ordering that property sold.

On appeal, the husband raised misjoinder because the owner of the rental property, a company owned by the couple, was not made a party to the proceedings. The husband's sister also had some involvement in the parties' real property, and also appealed.

The Appellant Forfeited Most of Her Claims:

On appeal, the sister argued she should have been given full title to one of the properties because the couple had "abandoned" it by failing to make mortgage payments.

The court held the sister forfeited this argument. At trial, the court concluded that the sister had not rebutted the presumption of legal title established by Evidence Code section 662. The sister did not argue her "abandonment" theory at trial. So she cannot raise it on appeal.

Attempting to salvage her argument, the sister argued she was not really raising a new legal challenge on appeal. Instead, she was just challenging the "sufficiency of the evidence" supporting the judgment. That is, the sister tried to argue this was not a new theory, but just a new gloss on the same theory argued at trial.

The Court of Appeal did not buy it. The court concluded the "abandonment" theory was "a new legal theory that we have the discretion to decline to address."

Here are some of the cited authorities on the forfeiture issue to clip-and-save:

Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767 [“[W]e are not required to consider [a] new theory, even if it raised a pure question of law.”].
Simplon Ballpark, LLC v. Scull (2015) 235 Cal.App.4th 660, 668 [holding that to avoid forfeiture of an appellate claim, the appellant must provide the trial court with “sufficient notice of the issue presented or the relief requested”].
Nelson v. Dept. Alcoholic Bev. Control (1959) 166 Cal.App.2d 783, 788 [“When a case is tried on the ‘assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, ... neither party can change this theory for purposes of review on appeal.’ [Citation.]”].)

Challenges to the Judgment May Not Be Supported by Citations to Post-Judgment Filings:

Appellants filed a post-judgment motion to vacate, and on appeal, they cited to matters in that motion. This would be fine – if they were challenging the order denying the motion to vacate. But the appellants cited to this post-judgment matter in their challenges to the underlying judgment.

This is improper. "We disregard these materials in the course of reviewing the family court's judgment because, with the exception of appellants’ notices of their intent to move to vacate the judgment, these documents were submitted to the family court after it had entered its judgment. Although we may examine these materials when reviewing an order denying a motion to vacate the judgment, we cannot consider them in assessing the correctness of the judgment itself. (See In re Marriage of Brewster & Clevenger, supra, 45 Cal.App.5th at p. 498 [“When reviewing the correctness of a trial court's judgment, we only consider matters that were part of the record at the time the court entered the judgment; ‘ “[t]his rule preserves an orderly system of [litigation] by preventing litigants from circumventing the normal sequence of litigation.” [Citation.]’ [Citation.]”].)"

A "substantial evidence" appeal is among the toughest to reverse. That is when the challenge to the judgment is based on one of the trial court's factual findings. An appellate court will almost never disturb a trial court's finding on a factual question. To get a reversal, you have to show there is literally no evidence, or the functional equivalent.

But the appellant managed it in Mulberg v. Amster (D1 Jul. 14, 2021) no. A158954 (nonpub. opn.).

The appellant, an attorney, was hired by Amster to help her collect her anticipated inheritance from a trust. The appellant went on to serve as trustee for the trust. The appellant dipped too freely in the trust corpus for his trustee fees, for which he was surcharged.

While he was helping himself, the appellant also took trust money to pay his attorney fees owed by Amster personally. He got surcharged for that, too. All the was raised in a prior appeal and affirmed.

But wait, the attorney-appellant argued: Even if I can't make the trust pay the fees my client owes me, my client still owes the fees. So the appellant sued his client for the $62,000 she owed him. The trial court disagreed, ruling the debt was not "somehow resurrected" by the surcharge order.

Besides, the invoices showed the fees had been paid in full. That ought to be enough to withstand a substantial-evidence challenge, right?

Wrong, held the First District Court of Appeal. Whether "resurrected" was the right word for what had happened to the fee obligation after the surcharge order, the fee obligation owed by the client clearly were no longer satisfied.

But what about the invoices showing the fees had been paid in full? Meh, the court held: "[A]s we have determined, no substantial evidence supports the finding that Amster satisfied her contractual obligation to pay Mulberg for the $62,820 in attorney fees she incurred in her individual capacity."

Normally, substantial-evidence review is not as glib as this. But the court thought it was a close question whether the appropriate standard of review was substantial evidence or de novo, given the operative facts were undisputed. The court concluded the ruling could not be sustained under either standard. But the short shrift given the trial court's order is more indicative of de novo review than substantial evidence.

The upshot: If you can frame your appeal of factual findings as arising from undisputed facts, this may improve your chances of success. (Of course, if there are disputed facts that support the judgment, you still must deal with those.)