Are you using general verdict forms at your next trial? Or special? This can be a critical choice, as appellate attorney Frank Lowrey explains on the California Appellate Law Podcast.

A simple general verdict form cannot tell you whether a certain alleged error at trial influenced the verdict. On the other hand, a special verdict form with multiple interrogatories may lead to inconsistent verdicts. This balancing underscores the importance of having appellate counsel involved pretrial.

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.

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.

Appellate attorney Frank Lowrey exchanges perspectives with Jeff Lewis and Tim Kowal about the recent Mahoney case in which a California Court of Appeal held an attorney in contempt for impugning the court's integrity, and discusses whether the level of civility has declined in the legal profession, and whether perhaps the Court of Appeal overreached by suggesting the integrity of the courts may never be questioned.

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.

Did you know that, when you appeal a mandatory preliminary injunction, the injunction is automatically stayed? An appeal in that instance can be very powerful.

But when is an injunction truly mandatory? Whether an appeal is mandatory or prohibitory can be very tricky to determine. Getting it wrong can be devastating, as the appellant learned in Chanin v. Community Rebuild Partners (D2d5 Apr. 23, 2021) no. B299188 (nonpub. opn.).

The appellant entered into an unorthodox contract to purchase a home, kind of a rent-to-own agreement by which she lived the house while paying $18,000 in rent, a portion of that going toward the balance of the purchase price. At the end of the six-month lease period, the appellant was to deposit the $100,000 balance of the down payment into escrow. The appellant didn't pay the $100,000 and stopped paying rent. But she did not move out.

After some litigation, the court issued a preliminary injunction ordering the appellant to open escrow, deposit the unpaid rent, and continue paying rent through the litigation. The appellant appealed this order, and filed a notice of stay, contending the preliminary injunction was mandatory in nature and thus stayed on appeal.

Appeal Dismissed Under the Disentitlement Doctrine:

The Second District Court of Appeal dismissed the appeal under the disentitlement doctrine. The court held the preliminary injunction was not mandatory in nature because it merely preserved the status quo. Thus, the appellant's willful refusal to comply with the trial court's order was not justified and warranted dismissal of the appeal.

Here is the court's helpful statement of the disentitlement doctrine:

“ ‘An appellate court has the inherent power, under the “disentitlement doctrine,” to dismiss an appeal by a party that refuses to comply with a lower court order.’ (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229 ....) “ ‘Appellate disentitlement ‘is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction ....’ [Citation.]” [Citation.] No formal judgment of contempt is required; an appellate court “may dismiss an appeal where there has been willful disobedience or obstructive tactics. [Citation.]” [Citation.]The doctrine “is based upon fundamental equity and is not to be frustrated by technicalities.’ ” (Id. at p. 1230.) [¶] The ‘disentitlement doctrine “is particularly likely to be invoked where the appeal arises out of the very order (or orders) the party has disobeyed.’ ” (Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 265 ... [(Ironridge)].) ‘[T]he merits of the appeal are irrelevant to the application of the doctrine.’ (Ibid.)” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 166.)

When Is an Injunction "Mandatory" Rather Than Merely "Prohibitory"?

The analysis is a close call on this point. The appellant was correct that filing a notice of appeal automatically stays a preliminary injunction where the injunction is mandatory in nature, requiring affirmative conduct on the part of the appellant. (Kettenhofen v. Superior Court (1961) 55 Cal.2d 189 (Kettenhofen).)

But how do you know if the automatic stay applies? The “automatic stay pending appeal turns on whether [an] injunctive order to be reviewed alters the status quo”, and status quo for these purposes is defined as ““““the last actual peaceable, uncontested status which preceded the pending controversy.”””” (Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1184.)

Here, the injunction ordered the appellant to open an escrow and deposit certain sums in it. That is not an order to stop doing something; that is an order to take affirmative actions. So it sounds like a mandatory injunction. But that is not what the Second District held: "Although, as plaintiff notes, the order required her to take an affirmative act, it did not, under the facts of this case, alter the status quo. The last ““““actual peaceable, uncontested”””” status prior to the instant controversy found plaintiff and her family in possession of the residence paying $18,000 per month, at least $12,000 of which was attributable to rent."

So while the injunction mandated certain actions by the appellant, it did not mandate anything different than what she had been doing before the dispute arose.

The Appellant Failed to Seek a Stay in the Trial Court or Supersedeas in the Court of Appeal:

As mentioned above, whether the injunction was mandatory or prohibitory seems an arguable point. That is often the case. (Kettenhofen, supra, 55 Cal.2d at p. 191 [“[W]hether a decree is one or the other may be difficult to determine in some situations ....”].

Given the legal question was a close call, the court found it significant that the appellant did not seek a stay in the trial court, and did not seek supersedeas (stay) in the Court of Appeal. While normally this is not required (an automatic stay does not require any order), it is probably a good idea in close cases. Especially here, when there was a strong inference that the appellant was taking advantage of the automatic stay to "continu[e] to reside in the residence rent-free."

Trial Court's Failure to Require a Bond Did Not Make the Injunction Void:

The appellant raised a good argument that the preliminary injunction was void because it did not require the moving party to post a bond. This requirement is imposed by statute at Code of Civil Procedure section 529. The courts have upheld it in many cases, including in the Second District Court of Appeal: Oskner v. Superior Court (1964) 229 Cal.App.2d 672, 687 [a preliminary injunction without a bond is a nullity]; Miller v. Santa Margarita Land etc. Co. (1963) 217 Cal.App.2d 764, 766 [an injunction is “of no effect” when it does not require the mandatory undertaking]; Condor Enterprises, Ltd. v. Valley View State Bank (1994) 25 Cal.App.4th 734, 741 [the failure to comply with the statutory scheme requiring a bond is a jurisdictional defect which preclude holding noncompliant party subject to injunction in contempt].

The Chanin court here did not address any of these cases holding bondless preliminary injunctions to be a "nullity" and "of no effect." The court did acknowledge such orders are in excess of the trial court's jurisdiction. But that merely means the order is voidable, not void. An act that is in excess of jurisdiction, and merely voidable, is presumed valid until it is set aside, and a party may be precluded from setting it aside by waiver, estoppel, or the passage of time. [Citation.]” (Ironridge, supra, 238 Cal.App.4th at p. 267.)

(But again, this seems to undermine prior cases: ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10: “[An] undertaking is an indispensable prerequisite to the issuance of a preliminary injunction, regardless of whether the party to be restrained has reminded the court to require the applicant to post one, the restrained party does not waive its right to that statutorily-mandated protection by failing to affirmatively request it.”)

Thus, the court held a preliminary injunction that fails to comply with CCP § 529's bond requirement must still be complied with pending appeal and until it is formally declared void. Until then, it was a presumptively valid order, and failure to comply with it triggered the disentitlement doctrine.

Appeal dismissed.

This case is a surprising application of the disentitlement doctrine, because the appellant's conduct was supported by fairly strong legal propositions: (1) on its face, the injunction did appear to be mandatory and thus stayed; (2) the automatic stay does not require the appellant to seek court orders to effect the stay; and (3) the injunction failed a key statutory requirement that it require the moving party to post a bond, and was thus invalid as a matter of law. But the Court of Appeal dismissed the appeal anyway.

The lesson: If an automatic appellate stay seems too good to be true, it might be.

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 the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Judge Robert Bacharach of the 10th Circuit is not a fan pop-culture references in legal writing. Too much levity in judicial opinions, the judge says, may tend to relax the standards of professionalism among the bar.

The parties, particularly at the appellate level, are entitled to respect, and "artful" advocacy may be seen as disrespectful. Use with extreme caution!

Watch the clip here.

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

Filing a notice of appeal is deceptively simple. There is a Judicial Council form you can use. Everyone knows there is a 60-day deadline to file the notice of appeal (though when it starts running can be a little mysterious). There is no reason to consult an appellate attorney for something so simple as filing a notice of appeal.

Is there?

Think again. Here is just a sampling of the confounders in deciding when and what to appeal:

When does the time to appeal start running? From the minute order? From a later, more formal order? From the notice of ruling? From the notice of entry?
Does the 60-day deadline apply? Or is it the 180-day deadline? Was there a valid notice of entry? Did the clerk's service of the order start the 60-day deadline?
Will the appeal deprive the trial court of jurisdiction to hear post-order or post-judgment motions?
Will the appeal stay the proceedings?
Do I have to file post-order or post-judgment motions to preserve issues for appeal?
Do my post-order or post-judgment motions extend the time to appeal? What do I do if it is unclear? What if the court decides my motion is invalid? Should I appeal just to be safe?
There are multiple orders I want to appeal. Do I have to appeal all of them separately? Or can I list them all in one notice of appeal?
What if I only want to appeal part of the court's order or judgment?

A few of these issues arose in CL Brookshire v. Albers YZI LLC (D2d5 Jul. 14) no. B306001 (nonpub. opn.). Specifically, the case reminds litigants that:

No, a defective post-order or post-judgment motion is "invalid" and so will not extend the time to appeal.
Yes, even if you have blown the time to appeal, you might still move to vacate the judgment or order. And yes, you might be able to appeal the denial of the motion to vacate. But no, you cannot challenge the merits of the underlying order or judgment. Instead, you have to establish the trial court abused its discretion in denying your motion.

The CL Brookshire case arose from a June 27, 2018 order sustaining the defendant's demurrer. Although the demurrer only challenged two of plaintiff's eight claims, the court dismissed the entire case with prejudice. So that seemed like a pretty good issue to raise on an appeal.

Instead, the plaintiff decided to try a motion for reconsideration. These are a favorite of trial counsel, because it is often believed that the trial court might still see the errors of its ways and correct course. And it is much faster and less expensive than an appeal.

Motions for Reconsideration and Motions to Vacate May Pose Risks to an Appeal:

But: a motion for reconsideration presents risks to a potential appeal. And so it proved here.

The plaintiff timely filed the motion for reconsideration. But the court denied that motion because the declaration was not signed. On appeal, the Court of Appeal held this amounted to a ruling the motion for reconsideration was invalid. Thus, it could not extend the deadline to appeal the underlying order of dismissal.

(Note: If there had been any factual issues the plaintiff had wanted to challenge, this would have been fatal to the plaintiff's ability to do so on appeal. As the normal time to appeal had expired, an appeal was only timely within 30 days of the denial of a valid motion for reconsideration. (Cal. Rules of Ct., rule 8.108.) No valid reconsideration motion, no extension of the time to appeal. Here, however, the plaintiff's challenge of the demurrer ruling raised questions of law, so those challenges could have been raised in a motion to vacate.)

Four months later, the plaintiff filed a motion to vacate the dismissal pursuant to Code of Civil Procedure section 473(d). That was denied, too. This time, the appellant did file a notice of appeal.

But then the plaintiff thought he'd take another stab at it with the trial court. So he dismissed that appeal so he could file another motion to vacate.

This was a fatal move. The second motion to vacate apparently was not decided by the trial court before the plaintiff filed a third motion to vacate. That motion was denied.

Now finally on appeal, the Court of Appeal held the plaintiff had waited too long.

“The rule allowing an aggrieved party to challenge an order void on its face at any time does not mean a party may perpetually move to vacate the order until he or she receives a favorable ruling.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021, fn. 13.) “ ‘Somewhere along the line, litigation must cease.’ ” (Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914.) The first motion to vacate (filed in January 2019) was the only motion that extended plaintiff's time to file a notice of appeal and the timeliness of his appeal evaporated with plaintiff's dismissal of that appeal.

Besides, the plaintiff failed to appeal within the 30-day period after the denial of the motion to vacate. Instead, the plaintiff waited until 49 days afterward.

The Upshot: Originally, the plaintiff had a very sound appellate challenge: the trial court had dismissed all eight claims in the complaint, but on the basis of challenges to only two of them. And orders sustaining an initial demurrer without leave to amend are among the most likely to be reversed on appeal (perhaps the most likely). But instead of just getting on with the appeal, the plaintiff lost by making post-order motions in the trial court.

If you are considering pursuing post-order or post-judgment motions, this is an excellent time to consult appellate counsel.

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.

A recent case shows how recovery of costs can involve large dollar amounts – over $1.5 million – and the application of subtle legal principles and appellate procedure.

In City of Los Angeles v. Pricewaterhousecoopers, LLP (D2d5 Jul. 8, 2021) no. B305583 (nonpub. opn.), a contractor agreed to modernize the billing system for the water and power department. The contractor allegedly bungled the job (the new system failed to reliably produce accurate bills), and over four years of litigation ensued.

For reasons not discussed in the opinion, the city dismissed its claims with prejudice. The contractor then sought $379,000 in deposition costs, $67,000 in travel costs, and nearly $1.1 million for electronic discovery costs. (A dismissal with prejudice usually suggests a settlement was reached. A $1.5 million costs claim tends to suggests otherwise.)

The trial court struck the travel costs and about half the deposition costs, finding it was not reasonable for a multi-national firm with a large Los Angeles presence to fly in out-of-town attorneys for depositions and hearings.

But the city took a different route in opposing the electronic discovery costs. Instead of asking the trial court to reduce those costs in its discretion ($1.1 million leave a lot of room for discretion), the city argued the court lacked discretion to grant any portion of those costs. Electronic discovery costs are not mentioned one way or the other in Code of Civil Procedure section 1033.5, so ordinarily that means it is left to the sound discretion of the court. But the city argued that a 1995 case had disallowed such costs, and that that case had not been overruled. Thus, the city argued, the trial court was bound to deny all those costs as beyond its discretion.

The court agreed. The contractor appealed.

A Voluntary Dismissal Is Not an Appealable Order, but a Costs Order May Be Appealable as a Judgment:

In the Court of Appeal, the city tried out another technical argument. Costs awards typically are appealable as an order after a judgment. (Code Civ. Proc., § 904.1(a)(2).) But there was no appealable judgment here. There was just a voluntary dismissal. (See here for more on the appealability of voluntary dismissals. I have seen courts play fast and loose with these rules if they are minded to dismiss an appeal. So your mileage may vary.)

The court here agreed the voluntary dismissal – even with prejudice – was not an appealable order. (Mesa Shopping Center-East, LLC v. O Hill (2014) 232 Cal.App.4th 890, 897.) But: “ ‘A judgment is the final determination of the rights of the parties in an action or proceeding.’ (Code Civ. Proc., § 577.) ‘[I]t is the substance and effect of an adjudication that is determinative, not the form of the decree. [Citation.] As a general test, an order constitutes the final determination of a case “where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree.’ ” (Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796, 801.)”

Here, the court concluded the order taxing costs was a final determination in itself and not interlocutory. (See Mesa, supra, 232 Cal.App.4th at p. 898.)

And even if the cost order isn't directly appealable under section 904.1(a)(1), it is appealable as a collateral order. (Krikorian Premiere Theatres, LLC v. Westminster Central, LLC (2011) 193 Cal.App.4th 1075, 1083 [order taxing costs on appeal is independent of any determination of the merits, effectively final and immediately enforceable as to the ancillary issue of costs on appeal, and could otherwise escape review entirely].)

And even if the cost order isn't appealable as a direct appeal or a collateral appeal, the court is going to exercise its discretion to review it as a petition for a writ of mandate. (Mesa, supra, 232 Cal.App.4th at p. 899; Mon Chong Loong, supra, 218 Cal.App.4th at p. 92.)

Failure to Exercise Discretion Is an Abuse of Discretion:

The Court of Appeal agreed with the contractor that the trial court misapprehended the scope of its authority. The city-respondent had urged an incorrect proposition of law when it argued the trial court lacked discretion to award any electronic discovery costs. When it agreed with the respondent's incorrect legal contention, the trial court failed to exercise its discretion to determine the reasonableness of the cost request. As a result, that factual determination was never performed. So back down the case goes.

The Court of Appeal starts from the premise that the trial court does properly understand its discretion. “Normally, we must presume the trial court was aware of and understood the scope of its authority and discretion under the applicable law." (Barriga v. 99 Cents Only Stores (2020) 51 Cal.App.5th 299, 333–334 (Barriga).)

But if the record shows the trial court misunderstood its authority, the error is per se reversible. Here is the authority to clip-and-save:

“If the record demonstrates the trial court was unaware of its discretion or that it misunderstood the scope of its discretion under the applicable law, the presumption has been rebutted, and the order must be reversed. ... Alternatively stated, if a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law. [Citations.] Therefore, a discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order." (Barriga, supra, 51 Cal.App.5th at p. 334.)

Here, the trial court's statements on the record were ambiguous whether it misunderstood the scope of its authority, or whether it was exercising discretion. There were statements suggesting either. And the ultimate ruling was a bit of word salad: "the court is going to exercise the discretion and high costs associated with electronic discovery in this case [sic]. And the court will grant the motion to strike costs related to electronic discovery.”

What convinced the Court of Appeal the trial court had not exercised its discretion? "Although it is a close question in this case, given the City's primary argument that the costs associated with electronic discovery are never recoverable under Science Applications and the lack of clarity in the transcript of the hearing, we cannot presume the trial court understood the extent of its discretion to award costs related to electronic discovery."

Reversed and remanded.

Takeaway: If you manage to persuade the trial court of your legal proposition, why not ask the trial court to exercise its discretion in your favor as well, just to be safe? Had the trial court also based its ruling on its discretion, the outcome likely would have been much different.

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.

Why aren’t the judges asking me any questions? Is it because I am winning? Or because I am losing? Or because the judges have gone to their happy place?

Appellate attorney Frank Lowrey exchanges experiences with Jeff Lewis and me about cold benches.

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.

Family court appeals are difficult because they delay an already bitter experience. The Court of Appeal is aware of this when it admonishes the family court that a recent appeal "might never have arisen had the trial court exercised its authority to make a capacity determination."

Despite repeated objections by the wife that the husband's recent life-threatening injuries had caused a behavioral change and mental disturbance affecting his capacity, the family judge in In re Marriage of Hermes (D4d3 Jun. 16, 2021) no. G058623 (nonpub. opn.) had credited the husband's attorney's improvident view that the family court does not need to determine capacity issues.

In fact, yes, the family court does need to adjudicate claims of mental capacity. Mental capacity is required to enter into a valid marriage (Dunphy v. Dunphy (1911) 161 Cal. 380, 383-384) and likewise is required to end one (In re Marriage of Greenway (2013) 217 Cal.App.4th 628, 639, 643 (Greenway)). Lack of capacity therefore can be raised as a defense to a petition for dissolution of marriage. (See Fam. Code, § 2122, subd. (d) [judgment of dissolution of marriage may be set aside on the ground of mental incapacity]; Greenway, supra, at p. 639.) The requisite mental capacity must be maintained throughout the dissolution action. (In re Marriage of Straczynski (2010) 189 Cal.App.4th 531, 540.)

The wife timely and repeatedly raised the defense of mental incapacity. She offered a letter from a psychiatrist. She offered evidence of her husband's three recent life-threatening bicycling injuries and behavioral changes that followed. But the husband's attorney insisted the family court had no discretion to decide that issue, which must be raised in a conservatorship petition in the probate court, and the family judge agreed.

In this, the family court abused its discretion. “[I]f a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law.” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15; see People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [“discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action”].) “ ‘[A] discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. [Citations.] If the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit that court to exercise informed discretion with awareness of the full scope of its discretion and applicable law.’ ” (Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 334, quoting F.T. v. L.J., supra, 194 Cal.App.4th at p. 16.)

Also the mental capacity for a conservatorship is not the same as that for marriage, such that a person may be subject to a conservatorship and still have capacity to enter into or dissolve a marriage. So it was no answer for the family judge to shuffle the case off to probate court.

What is more, the failure to exercise discretion in this case was per se reversible error. (A "per se" error means a legal error that is reversible on appeal without the need to establish the error resulted in prejudice to the appellant.) (F.T. v. L.J., supra, 194 Cal.App.4th at p. 16 [if court misunderstood the scope of its duty, “remand to the trial court is required to permit that court to exercise informed discretion”].)

The court summed up: "Lack of capacity is a defense to marital dissolution, and the trial court had the authority, indeed an obligation, to address the issue of Wayne's capacity and make a finding on the subject. The trial court erred by failing to do so."

To the husband-respondent's frustrations about the delays caused by the appeal, the court had this to say:

"In his respondent's brief, Wayne states he is “just trying to be divorced from Julie” and the appeal has “waste[d] assets from our estate.” His concerns might never have arisen had the trial court exercised its authority to make a capacity determination. As a panel of this court stated in a somewhat different context: “We recognize one result of reversal is to perpetuate an unstable [marital] relationship: all the more reason why it is important to adhere to the correct procedures and provide a fair hearing in the first instance.” (In re Marriage of Seagondollar (2006) 139 Cal.App.4th 116, 1120.)"

In the trial court, there is much to be said for the Al Davis rule: "Just win, baby." But leading the trial court to misunderstand its legal obligations should be regarded an exception to that rule.

Here is one reason why trials are so stressful:

What do you do after the jury hears something improper? Object and draw attention to it? Or do nothing and waive?

Appellate attorney Frank Lowrey discusses the options with Jeff Lewis and me. The law presumes that curative instructions purge any prejudice by the offending statements. But one is reminded of the retort Dickens put in the mouth of Mr. Bumble in Oliver Twist upon being informed the law would presume his wife acted at his instruction: "If the law supposes that, the law is an ass — an idiot."

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.

The first question any trial attorney must be able to answer is: What is the theory of my case at trial? Once you've answered that, the next question to consider is: What is the theory of my case on appeal? The attorneys in Mahanuntawong v. Kittithanyaphak (D1d1 Jul. 9, 2021) no. A158610 (nonpub. opn.) had a pretty good answer to that question, but it came too late, and so the court held it was waived.

The case was about "a restaurant deal that went bad." Although the restaurant was a success, the partnership was not, with the defendant allegedly intermingling business and personal expenses, and shutting off the plaintiff's access. After a bench trial, the court issued a tentative decision followed by a judgment rescinding the agreement and awarding restitution to the plaintiff based on the defendant's fraud and breaches of fiduciary duty.

Appellant Forfeited His Argument That the Damages Were Excessive by Failing to Raise It in a Timely Motion for New Trial:

The judgment appeared to reflect an excessive award in the plaintiff's favor because it included money that the plaintiff had admitted having already received. The award also overstated an amount the plaintiff had paid, and double-counted other amounts plaintiff had paid.

The problem with all these arguments is that the appellant was required to raise them in a motion for new trial to preserve them for appeal. “[A] failure to move for a new trial ordinarily precludes a party from complaining on appeal that the damages awarded were either excessive or inadequate, whether the case was tried by a jury or a court without a jury.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 122.)

(Note that the requirement that excessive damages be raised in a new trial motion does not apply where the error is legal rather than factual, e.g., an improper legal measure of damages, or erroneous evidentiary rulings, or improper jury instructions. It only applies where "the amount of damage requires resolution of conflicts in the evidence or depends on the credibility of witnesses." (Glendal Fed., supra, 66 Cal.App.3d at p. 122.) The point is to alleviate the appellate court's burden where the issues can better be resolved by the trial judge. Still, I would not chance it: I would raise any issue involving excessive or inadequate damages in a new trial motion so there is no question it is preserved for appeal.)

Here, the appellant did not file a motion for new trial. The appellant did file a motion to vacate or amend the judgment. But there were two problems with that motion. First, it was untimely, filed more than 15 days after service of the judgment. (Code Civ. Proc., § 659(a)(2).) Second, the appellant apparently withdrew the motion when, after filing it, the appellant filed a notice of appeal and then notified the trial court that it no longer had jurisdiction to consider the motion.

Appellant Forfeited All Arguments Based on the Tentative Statement of Decision by Failing to Object to It:

The defendant-appellant's other argument on appeal was that the trial court had failed to make any finding that it had actually committed any fraud. The tentative decision had identified the other defendant as having perpetrated the fraudulent inducement. The decision apparently did not identify the appellant as having done anything fraudulent.

While this kind of "gotcha" argument against the trial court may work in some cases (see our case study involving reversal of a $15 million judgment), it requires strict compliance with procedural rules. Here, the trial court issued a tentative decision under California Rules of Court rule 3.1590. But a tentative decision is not a final statement of decision. To obtain a final statement of decision, a party must timely request one. And even when the court then issues a final statement of decision, the appellant must object to any deficiencies in it. If a party does not bring “omissions or ambiguities in the statement” of decision to the trial court's attention, “that party waives the right to claim on appeal that the statement was deficient in these regards, and hence the appellate court will imply findings to support the judgment.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133–1134, citing Code of Civ. Proc., § 634.)

That is because under the doctrine of implied findings, the Court of Appeal will always infer that any necessary findings were "implied" by the trial court. The only way to overcome that presumption is to expressly request the finding be made in a timely request for a statement of decision under Code of Civil Procedure section 634. And even when the trial court fails to make such a finding, the appellant must object to the statement of decision, reminding the court again that the finding was requested.

Practically speaking, then, it is the rare case where a judgment is reversed because the trial court failed to make a required finding.

The Upshot: The moment a verdict or tentative decision is released is when an appellate strategy can take shape. But appellate issues may be waived beginning just days later, such as failing to cultivate the statement of decision, or failing to raise key issues in a new trial motion. This is a crucial time to consult appellate counsel.

Legal Writing Tip for the Day: Your readers pay most attention to the end of a sentence. Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that, according to many psycholinguists, readers' comprehension and focus is at its height at the end of a sentence. Craft your sentences accordingly!

Watch the clip here.

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

Awards for emotional distress can add tens or hundreds of thousands of dollars to a workplace-retaliation claim. But there are limits. And in this recent case, the court pointed to counsel's personal attack during closing argument as evidence the verdict was based on improper factors.

In Briley v. City of West Covina (D2d4 Jul. 1, 2021) no. B295666, 2021 WL 2708945, the employee, a deputy fire marshal, raised several issues concerning compliance with fire safety. He also accused his direct superior of failing to perform his duties, who then allegedly canceled his overtime, moved him to a smaller office, changed his take-home vehicle, and gave him a poor review. Their relationship became strained, and the supervisor ultimately terminated the plaintiff.

The jury returned a verdict for a former deputy fire marshal of $500,000 in economic damages, plus $3.5 million in noneconomic damages, mostly for emotional distress.

Plaintiff Is Not Required to Pursue Administrative Remedies Where No Impartial Review Is Available:

On appeal, the city argued the plaintiff failed to exhaust his remedies by pursuing an administrative appeal. The court rejected this because one of the decisionmakers in the administrative appeal was the supervisor against whom plaintiff's claims were made.

The exhaustion requirement is excused if the relevant administrative remedy fails to satisfy the standards of due process. (E.g., Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 591; Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 620.)

Here, the plaintiff's series of attacks against his supervisor's integrity would have been enough to raise concerns about the supervisor's ability to be impartial in reviewing any claim by the plaintiff. (See Kloepfer v. Comm. on Judicial Performance (1989) 49 Cal.3d 826, 834.) The supervisor could hardly be seen as a reasonably impartial decisionmaker in the plaintiff's appeal. (See Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 223 [“ ‘ “[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity” ’ ”].)

The court held that "as a matter of due process, an official whose prior dealings with the employee have created substantial animosity and whose own conduct and character are central to the proceeding may not serve as a decisionmaker."

$3.5 Million in Emotional Distress Damages Held Excessive:

An award of noneconomic damages normally is left to the jury, and ‘[t]here are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant.’ ” (Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525, 547-548.) But on review, the court should look to the amount of the award and its relation to the evidence. And the court may consider indications in the record that the factfinder was influenced by improper considerations, such as inflammatory evidence, misleading jury instructions, or improper argument by counsel. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 299.)

Here, there was "little detail" regarding the distress the plaintiff suffered as a result of the termination. He had no physical symptoms, no sleep-related issues. He had seen a counselor once or twice but had no mental health issues.

"[W]ithout evidence of significant, concrete harm, the typical post-termination difficulties described by Briley cannot support an award of $2 million for past noneconomic damages covering a period of about three years, amounting to more than $1,700 per day...."

Uncivil Closing Argument Grounds for Reducing Award:

Similarly, the $1.5 million in future emotional distress damages was "no less than shocking." And here is where counsel's improper closing argument came in. "Briley's counsel's attack on the integrity of opposing counsel during his rebuttal argument further suggests that the jury's noneconomic damages award rested on improper factors."

Here is what happened. Someone apparently had mentioned the word "incredulity," and during closing argument the city's counsel said he had had to look up the word in the dictionary. The plaintiff's attorney sneered back during his closing argument, stating: "He knows exactly what it meant, but he told you he had to look it up in the dictionary. [¶] This is part of the game, part of the smoke and mirrors. Hey, I'm a normal guy, I had to look it up in the dictionary.... He's probably used it 20 times and he knew exactly what it meant.... That's all part of the smoke and mirrors of this case.”

The court concluded this contributed to the exorbitant award of future noneconomic damages: "This personal attack on the City's counsel, shortly before the jury began its deliberations, may have prejudiced the jury against the City and contributed to its excessive award, which went beyond even Briley's counsel's exorbitant request."

The court vacated both past and future awards for noneconomic damages, giving the plaintiff the choice to either accept reduced awards of $1 million and $100,000, respectively, or a new trial on those issues.

(When the city's counsel objected to the attack after closing argument, the trial court denied it as untimely. The Court of Appeal did not further comment on this.)