Filing a critical motion in limine could be key to your trial.
What about 40 motions in limine?

Appellate attorney Frank Lowrey says he’s heard trial judges refer to these as "stupid motions in limine."

Watch the clip here.

You can listen to Jeff Lewis and Tim Kowal's entire interview with Frank Lowrey 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.

One reason I like to read unpublished opinions is they are a little bit less guarded in their analyses. Even if the outcomes would not be different had the opinion been published, the courts sometimes offer analyses that seem somewhat unusual, or incomplete, or even surprising, and these can give a glimpse into how the justices and their research attorneys are struggling through the issues in the case.

I got this impression reading San Felipe Farms L.P. v. LLY Ranch (D4d3 Jul. 8, 2021) no. G060126. It involves an appeal that seems clearly moot, and from an order that seems clearly nonappealable. But the court for some reason did not want to dismiss the appeal on either of those grounds – and in so doing suggests a possible loophole in the appealability doctrine that may be larger than typically advertised.

The court also noted the appellant had put its toes right on the line of its duty of candor.

The plaintiff is a farm operator who had a right of first refusal to purchase its farmland. The farm operator sued its landlord when it learned the landlord was planning to sell out from under the farmer to a secret buyer. Just before trial began, the secret buyer revealed itself and sought to intervene in the case via ex parte application. When that application was denied on grounds the buyer was really only the beneficiary of a land trust, the buyer got an assignment of rights, and filed a new application. That was denied too. The buyer appealed, but in the meantime the plaintiff farm operator obtained a judgment in its favor.

Did the Judgment Render the Intervention Appeal Moot?

The plaintiff, now the respondent on appeal, argued the judgment in its favor rendered the buyer's appeal moot. Now that the court had already decided the issues, there was nothing to be accomplished by reversing the order denying intervention. (No party had appealed the judgment.)

And there is case law to back up this mootness argument: “Where the judgment in a cause, rendered in the trial court, has become final, an appeal from an order denying intervention in such cause will be dismissed, as a reversal of such order would be of no avail. The appeal presents only a moot case.” (Hindman v. Owl Drug Co. (1935) 44 Cal.2d 451, 456.)

But appellate courts can be very slippery when it comes to mootness arguments. And so it proved here. The Fourth District Court of Appeal held that the intervention statute, Code of Civil Procedure section 387, was since amended to allow intervention "upon timely application," as opposed to "before trial" as it had been worded at the time of Hindman. This means intervention may be appropriate even after a judgment. (Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 267.)

(What relevance any of this has to the mootness of the appeal is not said. And in fact the court offers that "we make no holding regarding the range of actions or remedies available" at such a late stage in the proceedings. Which tends to underscore the plaintiff-respondent's point: given there was no appeal of the judgment and no other relief the court may provide, the appeal should be dismissed as moot.)

The Importance of Seeking Stays or Supersedeas:

The court also notes that there were several procedural remedies the appellant buyer should have considered to preserve its appellate rights. These remedies included:

seeking a stay of proceedings, either in the trial court or the Court of Appeal;
seeking a writ of supersedeas;
appealing the judgment;
filing a motion to vacate the judgment, and appealing from denial of such motion (Linder v. Vogue Investments, Inc. (1966) 239 Cal.App.2d 338).

Ultimately, the court concluded these were not strictly necessary to preserve the appellant's right to appeal. (But again, the court does not identify the salient issue on the mootness argument: whether there was any effective relief left for the court to grant.)

"Related" Appealable Orders May Be Reviewed on Appeal, Even If Not Appealed?

The most interesting part of the court's analysis relates to appealability. The analysis suggests a rather significant loophole in the otherwise narrow approach to determining appealability and timeliness of appeals.

First, recall that the appellant buyer filed not one but two applications to intervene. The first was denied on the grounds that the buyer was not actually a buyer but merely a beneficiary of the buyer. The buyer remedied that via assignment in the second application, which was also denied. The buyer only appealed from the second denial.

The respondent pounced on this fact. The appealable order, the respondent argued, was the first denial. The second application was really just a disguised motion for reconsideration under Code of Civil Procedure section 1008, and as we know, an order on a reconsideration motion is not independently appealable.

This seems a sound argument, and the court did not disagree. But the court still did not go for it. "Even if [respondent] is right, we nonetheless are permitted to construe an otherwise timely notice of appeal from a nonappealable order as being taken from the related appealable order, so long as the substance of the appeal is clear and no party is misled or prejudiced thereby."

The court cited two cases in support, In re Joshua S. (2007) 41 Cal.4th 261, 272, and Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 14, fn. 1. But the court seems to stretch both of these cases beyond their doctrinal limitations. Joshua S. involved the situation where an appellant includes language in a notice of appeal that arguably could be deemed to limit the scope of the appeal. The Joshua S. court simply exercised its discretion to construe any ambiguity in conformity with the policy of liberally construing notices of appeal.

And the Kasparian court simply held that an appeal from an order granting summary judgment may be deemed to be an appeal from the judgment.

The situation in this case was rather different, because it did not involve an ambiguous notice of appeal, and it did not involve an appeal from an earlier nonappealable that was later entered as an appealable judgment. Instead, there were two different motions here, based on different facts or law, and opposed on different grounds as well. If a Court of Appeal has "discretion" to sweep into its jurisdiction orders from which an appeal must be taken but wasn't, on the basis the court finds them sufficiently "related" to the appeal, this seems rather a departure from the normal rules of appellate jurisdiction.

A Note on Candor to the Court:

One last point of note. On appeal, the respondent argued that the buyer had failed to file the required proposed answer with its motion to intervene. Not so, argued the appellant-buyer, who filed a request for judicial notice in the Court of Appeal attaching the proposed answer that he had filed in the trial court. The court granted the RJN over the appellant's opposition.

The appellant's factual statement about the record having been proved incorrect, the court had this to say:

"We are troubled Dobler's brief contains factual assertions not only that the record does not contain the proposed answer, but that “ERSB did not attach any such answer,” and “ERSB ... did not provide the Court with any answer in intervention.” It is, of course, wholly permissible to assert and rely upon the failure of an appellant to supply a sufficient record, but it is another thing entirely to knowingly make an incorrect factual assertion about what happened in the trial court.

"We note the attorney who signed the brief, although from the same firm, is not the same attorney who appeared at the hearing. We therefore give counsel the benefit of the doubt and presume an error was made. Nevertheless, we remind counsel of the importance of the duty of candor toward the tribunal imposed by rule 3.3 of the Rules of Professional Conduct."

This commentator does not see what "doubt" was left after the respondent produced the supposedly nonexistent answer, and the appellant opposed its inclusion in the record.

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.

How do you use acronyms in your briefs?

Judge Robert Bacharach of the 10th Circuit told Jeff Lewis and me that he wishes that whoever invented acronyms hadn’t: "If you can avoid acronyms, do it." When you make the judge flip back in your brief to look up what an acronym means, or who a party is, you ruin the momentum of your argument.

Watch the clip here.

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

Starting the 60-day clock for your opponent to file a notice of appeal requires strict compliance with the California Rules of Court, including the service requirements. That means a proof of service. Even actual notice in court is no substitute.Also, if an unlawful detainer doesn't suit you, have you considered an elder abuse restraining order?

That is what happened in Smith v. Monk (D2d4 Jul. 6, 2021) no. B300975 (nonpub. opn.). Smith and Monk are an estranged mother and daughter. Mother rented the lower unit of her duplex to daughter, while mother inhabited the upper unit. Daughter stopped paying rent, so mother filed an unlawful detainer. But the parties settled that dispute.

A year later, mother sued daughter again, this time claiming daughter was physically abusing her. After a two-day evidentiary hearing, the trial court did not find physical abuse, but did find financial abuse. And on this basis, in February 2019 the court ordered daughter to move out of the property immediately.

(Daughter did not timely appeal this order. But this is not the first time I have seen an elder abuse restraining order serve as a substitute for an unlawful detainer.)

Daughter filed a motion to vacate the restraining order, which the court denied in a June 2019 order. In July 2019, the court granted mother's motion to declare daughter a vexatious litigant.

Daughter filed a second motion to vacate the restraining order, which the court denied in a January 2020 order. Daughter appealed.

Actual Notice of an Appealable Judgment or Order Does Not Trigger the 60-Day Deadline to Appeal Without a Proof of Service:

Daughter appealed from all four orders, the earliest being the February 2019 elder abuse restraining order. Ultimately, the Second District Court of Appeal held her appeal of that order was not timely within the outer 180-day limit, as it was not filed until 10 months later in December.

But the court did something noteworthy in rejecting mother's argument that the 60-day deadline applied to that order.

Under California Rules of Court rule 8.108(a)(1)(A), the deadline to appeal is 60 days where the "clerk serves on the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, showing the date either was served." Mother argued that this provision applied because daughter “was present in court and was handed a copy of the [EARO] by the Clerk of the Court.”

This won't work, the court held. "Even where the appellant has actual notice" of the appealable order, “the prevailing party still must comply with the service provisions in the court rules in order to shorten the appeals period from 180 days to 60 days. [Citations.]” (In re Marriage of Lin (2014) 225 Cal.App.4th 471, 476.)

To be effective, a Notice of Entry or file-endorsed copy of the appealable judgment or order must be accompanied by a proof of service. Even actual notice, or a waiver of notice, or a cover letter will not suffice. (Thiara v. Pacific Coast Khalsa Diwan Society (2010) 182 Cal.App.4th 51, 58; Marriage of Lin, supra, 225 Cal.App.4th at p. 476.)

Mother also failed to trigger the 60-day deadline as to the June 2019 order. Instead of serving the file-endorsed copy of that order directly, she attached it as an exhibit to an opposition to one of the daughter's other filings.

That does not work. Here is the analysis to clip-and-save:

"Construing the rule strictly, as we must (In re Marriage of Lin, supra, 225 Cal.App.4th at p. 474), the plain language of rule 8.104(a)(1)(B) appears to require parties to serve a copy of the order itself (or a document entitled “Notice of Entry” of the order), accompanied by proof of service of that specific document. (See Cal. Rules of Court, rule 8.104(a)(1)(B).) Further, acceptance of Smith's proposed application of the rule runs the risk of requiring litigants to “guess, at their peril, whether [certain] documents ... trigger the duty to file a notice of appeal.” (Alan v. America Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 905.) “ ‘Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.’ [Citation.]” (Ibid.)

Two Curious Items:

Before leaving this case, two quick observations:

First, recall I mentioned that the parties had settled their UD action. The daughter raised this issue in her motion to vacate, arguing that, as the issues had already been decided in that on-the-record settlement of the UD action pursuant to Code of Civil Procedure section 664.6, they could not be relitigated against her in the continuation of the dispute in the elder abuse restraining order. This would violate res judicata, and thus affects the court's fundamental jurisdiction.

That seems like a pretty good argument to me. But the court rejected it: "It is well-settled, however, that “res judicata is a defensive plea and does not affect the court's jurisdiction. [Citations.]” (Howard Greer Custom Originals v. Superior Court of Los Angeles County (1948) 87 Cal.App.2d 816, 817; David v. Hermann (2005) 129 Cal.App.4th 672, 683 [“Res judicata is not a jurisdictional defense .... [Citation.]”].)

While that may be true, the rule has an exception that seems to apply here: "However, an exception exists where both trials are related to the same case.... In such a case the trial court lacks jurisdiction to redetermine that part of the judgment which has become final and a writ of prohibition will properly lie. [Citations.] (Burgermeister Brewing Corp. v. Superior Court (1961) 195 Cal.App.2d 368, 370-71.)

The second additional curious item in this case is something the daughter noted about the vexatious-litigant declaration against, which already seemed a bit odd since the daughter was the defendant, not the plaintiff: "She also asserts that “off the record, as the parties packed up to leave [the evidentiary hearing on Smith's EARO in February 2019], Judge Gordon advised [Smith] to file a vexatious litigant action against [Monk].”" The daughter argued this showed the judge was biased against her, which the Court of Appeal rejected. And I agree this alone is not sufficient to establish bias. And the court noted the daughter failed to support the accusation with any citation to the record.

Still, one would expect at least a passing word that such a thing ought to be frowned upon.

Do you still have to object if you filed a motion in limine? While a denial of a MIL preserves your objections, a deferred ruling preserves nothing.

Counsel must be prepared to make contemporaneous objections at every instance to preserve the objection.

Watch the clip here.

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

"I have done a lot of appeals," a colleague told me recently discussing how important evidentiary objections were at trial, "and I have never seen a court reverse because of an evidentiary ruling."

It is true that a trial judge's rulings on evidence are rarely fertile grounds for reversal on appeal. That is because those rulings are reviewed under the deferential abuse-of-discretion standard. But does that mean evidentiary rulings are never cause for reversal?

Responding to that challenge is Nicholson v. Southern California Edison Co. (D2d7 Jun. 22, 2021) no. B302287 (nonpub. opn.). Electricians sued SoCal Edison for negligence after they were burned in an arc flash – an electrical discharge producing an explosion and extreme heat. Edison moved for summary judgment, arguing it was undisputed the arc flash was the result of the electrician contractors' conduct, and in any event nothing to do with a malfunction of any Edison equipment. In opposition, the injured plaintiffs offered testimony that Edison provided defective insulating caps for the electrical cables, and that those caps (called "dummy elbows") were still affixed to the electrical cables at the time of the incident, which caused the arc flash and the injuries.

The trial court granted Edison's motion, finding no triable fact disputed Edison's equipment did not cause the injuries. The trial court excluded the plaintiffs' testimony about Edison's defective dummy elbows being the cause, calling that testimony "speculative" and "conclusory."

Excluding Competent Evidence Tending to Establish a Triable Issue of Fact Was an Abuse of Discretion:

The Second District Court of Appeal reversed, finding the trial court abused its discretion excluding the plaintiff-electricians' testimony. The testimony of both witnesses was based on their personal observations. (See Evid. Code, § 702; People v. Lewis (2001) 26 Cal.4th 334, 356 [witnesses may testify where they have “personal knowledge of the subject of the testimony, i.e., ‘a present recollection of an impression derived from the exercise of the witness’ own senses’ ”].) And the testimony was obviously relevant to a material issue.

Given this was in the context of a summary judgment motion, the court noted that the California Supreme Court has not yet decided whether a trial court's evidentiary rulings on a motion for summary judgment are reviewed de novo or for an abuse of discretion. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [declining to decide the issue]; Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 368 [“[c]ourts are split regarding the proper standard of review for the trial court's evidentiary rulings in connection with motions for ... summary adjudication”].) But the court found that, even under the more deferential abuse of discretion standard, the trial court erred.

The court did not offer any additional analysis why the trial court's ruling exceeded its discretion other than the fact that it was erroneous. But as an incorrect evidentiary ruling on a material fact in the summary judgment context can easily change the outcome, this may not be surprising. As a practical matter, then, an erroneous evidentiary ruling on a summary judgment motion will very likely be an abuse of discretion.

The upshot: Do not try to win a summary judgment motion by excluding the opposing party's evidence. Any victory by such means will likely be short-lived.

Legal writing expert Laura Genovich wrote recently that writers should begin their sentences with real things rather than concepts – concretes over abstracts. Judge Robert Bacharach of the 10th Circuit said the same when he joined Jeff Lewis and me on the California Appellate Law Podcast in June 2021.

“Shareholders who are anxious,” not, “Anxiety among shareholders.”

That brought to mind Bryan Garner’s advice to avoid beginning sentences with “However,” which Garner thinks "too ponderous a word." Judge Bacharach agrees, preferring “But” over “However” to begin sentences.

Watch the clip here.

Listen to the full June 2021 interview from episode 12 of the California Appellate Law Podcast here.

One tactical benefit of filing an appeal is the potential to stay the underlying proceedings. The automatic stay rule observes that only one court at a time may have jurisdiction over an issue, and protects the appeal from becoming moot before the appellate court has an opportunity to reach the merits.

But the automatic stay has many exceptions and limitations, many of which are illustrated in Wong v. Lee (D2d1 Jun. 29, 2021) no. B293892 (nonpub. opn.).

In this divorce and proper division case, the wife moved to have the husband declared a vexatious litigant, and the husband, in turn moved to SLAPP the wife's motion. The family court declared the husband a vexatious litigant, and denied his anti-SLAPP motion. The husband appealed from both orders, and argued his appeals stayed the rest of the proceedings from going forward, depriving the family court of jurisdiction.

The Automatic Appellate Stay Rule:

Code of Civil Procedure section 916, subdivision (a) provides in pertinent part: “[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a).) “The purpose of the automatic stay provision of section 916, subdivision (a) ‘is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian Medical Systems, Inc.).) “Under section 916, ‘the trial court is divested of’ subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal.” (Varian Medical Systems, Inc., at pp. 196–197.)

The question in this case was: is the balance of trial proceedings "embraced in or affected by" the appeal of the denial of an anti-SLAPP motion? Or the appeal of a vexatious litigant finding? The husband also appealed an order denying his motion to disqualify the judge. Does that appeal stay the proceedings?

Answer: No to all three. For different reasons.

As for the denial of judicial disqualification, that order is not appealable in any event: it is reviewable exclusively by writ. So that appeal was defective. And a defective appeal cannot trigger a stay under Code of Civil Procedure section 916, subdivision (a). (See Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 146 [“The automatic stay, when it applies, arises upon a ‘duly perfected’ appeal. [Citations.] Since [the] appeal was invalid, it did not affect the trial court's jurisdiction to proceed.”].)

As for the appeal of the denial of the SLAPP motion, the appellant argued Varian Medical Systems, Inc. held that “the perfecting of an appeal from the denial of a special motion to strike automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion.” (Varian Medical Systems, Inc., supra, 35 Cal.4th at p. 186.) But the Supreme Court clarified that “[s]uch an appeal does not, however, stay proceedings relating to causes of action not affected by the motion.” (Id. at p. 195, fn. 8.)

And as for the vexatious litigant finding, that finding did not impact any of the other claims that went to trial. The trial had no “ ‘effect on the “effectiveness” of the [prior] appeal.’ ” (Varian Medical Systems, Inc., supra, 35 Cal.4th at p. 189.) So, no stay.

(Comment: I wish this part of the opinion – regarding the SLAPP appeal – had been published, because in my recollection of researching this issue, the published cases are a little murky, and would give trial judges pause over whether the proceedings must be stayed pending appeal. This opinion would tend to buck them up a little.)

These examples are only the tip of the iceberg of stays pending appeal. Trial attorneys can bring a lot of value to their clients by consulting an appellate attorney on these issues.

Judge Robert Bacharach of the 10th Circuit says the science of linguistics demonstrates short sentences tend to be more effective. But take care not to cross the line into writing sentences that are strident or glib. Do not dare your reader to prove you wrong!

When Judge Bacharach visited Jeff Lewis and me on the California Appellate Law Podcast this month, I asked him about this setup: “The jury instructions are inconsistent. Literally.”

Question: Does this short sentence couplet fall on the side of persuasive, or glib?

Watch the video here.

Listen to the full June 2021 interview from episode 12 of the California Appellate Law Podcast here.

MS Word by default inserts "passim" in your Table of Authorities. The 9th Circuit discourages it -- the court wants to see every page where the authority is cited (unless the authority appears on nearly every page). See https://cdn.ca9.uscourts.gov/datastore/uploads/guides/Shell_Brief.pdf.

Bryan Garner's LawProse.org has this entry on passim, suggesting it may be rather archaic by now:

passim (lit., “throughout”) is used in citing an authority in a general way and indicates that the point at hand is treated throughout the work. It’s a fairly erudite citation signal—e.g.: “There is a curious reluctance on the author’s part to let go of linear frameworks—from ‘differentiation to integration’ (p. 13), ‘dependence to interdependence’ (p. 19), ‘childhood to maturity’ (p. 25), and on to ever-higher ‘states of consciousness’ (passim).” Michael Edwards, “Popular Development: Rethinking the Theory and Practice of Development,” J. Dev. Studies, Apr. 1997, at 581.

If you still use it, is there a reason? "MS Word put it there" might not be good enough anymore.

The Court of Appeal awarded over $25,000 in appellate attorney fees as sanctions against the unsuccessful appellants in Trumble v. Kerns (D4d1 Jun. 28, 2021) no. D076490 (nonpub. opn.), and an additional $8,500 in court costs as further sanctions.

The appellants are sisters, and one side of a "dysfunctional family" engaged in a ten-year dispute over their mother's estate. One of the sisters had been removed as successor trustee, surcharged $3.7 million, and, an attorney at the time, disbarred for her conduct. The other sister was surcharged $1.1 million. Both continued to challenge their brothers and the independent fiduciary appointed as successor trustee.

(Anyone bothering to put their assets in a trust ought to give a thought to appointing an independent fiduciary as successor trustee. Otherwise, the trust might as well name the attorneys as beneficiaries.)

Appellants' Arguments Were Forfeited on Appeal:

Despite multiple prior trips to the Court of Appeal, the sisters failed to master some of the basics of appellate procedure.

First, they had not appeared at the bench trials that produced the judgments on appeal. A party's failure to appear and register a proper and timely objection to a ruling or proceeding in the trial court forfeits the issue on appeal. (Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602 (Bell); Jordan v. County of Los Angeles (1968) 267 Cal.App.2d 794, 798 (Jordan) [party forfeited right to challenge action by trial court by failing to file briefs or appear for oral argument].) Stated differently, “[c]ontentions or theories raised for the first time on appeal are not entitled to consideration.” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685; In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1528 [argument not raised below is forfeited on appeal]; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 [“[i]t must appear from the record that the issue argued on appeal was raised in the trial court” and “[i]f not, the issue is waived [or forfeited]”].)

Second, they failed to provide a statement of facts in their opening brief that fairly summarized the factual and procedural history in a neutral manner, supported by citations to the record. (Cal. Rules of Court, rule 8.204(a)(2)(C); Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655.) “Because ‘[t]here is no duty on this court to search the record for evidence’ [citation], an appellate court may disregard any factual contention not supported by a proper citation to the record [citation].” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) The opening brief must set forth all material evidence in the factual summary. (See Nwosu, supra, 122 Cal.App.4th at p. 1246; see also Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 [requiring a party to include both favorable and unfavorable facts in the summary of facts].)

Here, the appellants' “Statement of Facts” was half-a-page in length, bereft of any citations to the record, and in no way summarized in a neutral manner the extensive factual and procedural history of the case. Thus, the court held the appellants forfeited their claims on appeal. (See Nwosu, at p. 1246.)

Third, the appellants raised their appellate arguments in improper "shotgun" fashion – that is, without reasoned argument or citation to legal authority. (See Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [parties forfeit issues or claims on appeal by failing to include in their briefs argument and citation to authority].)

Fourth, many of the arguments the appellants raised had been decided already in prior appeals in the litigation, and thus barred on preclusion grounds.

Sanctions:

Meeting the procedural requirement for imposing appellate sanctions, the respondents filed a separate motion for sanctions. The court also separately notified the appellants it was considering imposing sanctions, and invited briefing from the appellants. (Cal. Rules of Court, rule 8.276; Code Civ. Proc., § 907. See People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1318 (Brar); In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty).)

The standards for determining whether an appeal is frivolous are set forth in Flaherty. An appeal may be found frivolous and attorney fees awarded when the appeal (1) “is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment,” or (2) “indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.” (Flaherty, supra, 31 Cal.3d at p. 650.)

“In explaining these provisions, our Supreme Court has explained ‘an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.’ [Citation.]" (Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534 (Kleveland).)

Here, the court had no problem finding the appeals lacked objective merit due to forfeiture and preclusion. Subjectively, the appellants sealed the deal when, instead of opposing the motion for sanctions, they filed their own motion for $4 million in sanctions against the respondents. This motion was not only untimely, but sought to relitigate yet another precluded issue.

Upshot: The only thing more likely than money to make people crazy is control. Had an independent fiduciary been appointed in the first place, much of this litigation and waste could have been avoided. And one of the sisters might have avoided becoming a former attorney. Appellate attorneys commonly work with independent fiduciaries and would be happy to connect you.

Georgia appellate attorney Frank Lowrey joins Tim and Jeff to discuss Williams v. Harvey, a recent decision by the Georgia Supreme Court concerning preservation of error and motions in limine, in a June 2021 interview in episode 13 of the California Appellate Law Podcast.

Frank notes the important nuances in rulings on motions in limine: a denial preserves the evidentiary objections raised in the motion, while a deferred ruling (neither granting nor denying the motion) preserves nothing – meaning the trial attorney still needs to object to every instance of the offending matter.

Frank also notes that, in some jurisdictions, a curative instruction is presumes to cure any prejudice. This is the case in California, absent exceptional circumstances. (People v. Navarrete (2010) 181 Cal.App.4th 828, 834 ["Ordinarily, a curative instruction to disregard improper testimony is sufficient to protect a defendant from the injury of such testimony, and, ordinarily, we presume a jury is capable of following such an instruction."].) (One is reminded of the reaction of Dickens’s Mr. Bumble upon being informed the law presumed his wife acted under his direction: “If the law supposes that, the law is an ass — an idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”)

Frank, Tim and Jeff also discussed the recent California Court of Appeal opinion previously discussed on this blog finding an attorney in contempt for accusations made in an appellate brief, and discuss whether the court’s admonition against challenging the courts might be somewhat overstated.

Listen below:

Appellate Specialist Jeff Lewis' biography and Twitter Account
Appellate Specialist Tim Kowal's biography and Twitter Account
Sign up for Tim Kowal’s Weekly Legal Update
Frank Lowrey's bio

Cases mentioned in this episode
Williams v. Harvey (Ga., May 17, 2021, S20G1121)
Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285
Salsbury Eng'g, Inc. v. Consol. Contracting Servs. (In re Mahoney) (June 10, 2021, G057832) ___ Cal.App.4th ___

Transcript:

Jeff Lewis: 0:02

We are professionals, like clergy, like doctors like scientists. We are members of a profession. And we have to conduct ourselves according

Announcer: 0:10

Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news cutting 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 co all operating under an expired license from the California Department of podcasting. And 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: 0:56

Alright, everyone, welcome to Episode 13 of the podcast. Today, we are pleased to welcome to our podcast appellate attorney Frank Lowrey. Frank is a 1992 graduate of Emory law school and after clerking for the honorable Stanley birch of the United States Court of Appeals for the 11th circuit, he joined bondra, Mixon and Elmore LLP where he has spent his entire career. He specializes in high stake appeals and the federal circuit courts as well as the appellate courts of Georgia. He represents both plaintiffs and defendants. And he's one of only eight Georgia members of the American Academy of appellate lawyers.

Tim Kowal: 1:34

Welcome to the podcast. Frank. Thank you. So tell us a little bit about the I'm frankly curious about the American Academy of appellate lawyers how long you've been a member of that.

Frank Lowrey: 1:45

That's a new honor for me, and one that I am extremely proud of is the appellate cousin of the American College of trial lawyers admission is solely by peer review. And it's a pretty exhaustive process. I have learned that they go behind the scenes and they talk to judges before whom you've argued opponents co counsel, they read written opinions in cases that you've argued and they restrict their membership. And I'm proud to say that of the of the eight members of that society, in Georgia, three are from my firm.

Tim Kowal: 2:22

Let's terrific until it tell us a little bit more about your practice in terms of how much of your work is in the trial court how much is in the appellate court.

Frank Lowrey: 2:30

I could have described my practice using the same words that you use to describe your practice. And Jeff's. Mine is about 50/50. Over over the years. I mean, he given year, it could be tilted pretty heavily one way or the other. And it on the appellate side, it is mostly taking cases where we didn't handle the trial, or or even where we didn't handle the intermediate appellate argument but takeover to seek cert to our supreme court. And it is plaintiffs and defense work. And and then the other 50% of my practice is trial practice. And again, that's plaintiffs and defendants. And it tends to focus on business disputes class actions, a lot of antitrust Rico cases, which is not necessarily the subject matter of our appellate practice at all.

Tim Kowal: 3:20

And you practice out of Georgia, how much of your work is in the Georgia State courts? And how much is it in the federal courts?

Frank Lowrey: 3:27

Let's say it's about 75%. And the Georgia appellate courts, both about the other 25%, the the Federal Circuit courts, and that piece is is heavily tilted to the 11th circuit. But it is a nationwide practice. We've been in the Ninth Circuit, for example, were used to the Eighth Circuit, the Second Circuit, Sixth Circuit, various different places, though, but in any given year can be different. I might be federal heavy one year, which is what it looks like this year.

Tim Kowal: 3:57

Was there a point in your career when you decided that now is the time to transition from being kind of a trial and litigation attorney to being an appellate attorney?

Frank Lowrey: 4:05

Yeah, I can put my finger on the start point, even though that's been a gradual process, I had not given any thought to doing appellate work. But one of our senior partners had a friend, lawyer and a friend who had obtained a terrible result in the trial court. And the case was small, they could not remotely afford even our 1990 rates. And and so the proposal was that I as a third year associate would handle the appeal soup to nuts, it would cost the client a lot less. And I still remember my senior partner describing in the meeting I was sitting in, we can't give you a Cadillac, Gary, we can give you a Buick, and I was I was the Buick. That's awesome. But I am highly competitive. I really, really hate to lose. And so I took my role as a Buick seriously and I managed to win the K The Court of Appeals and then took the one issue I lost to the Georgia Supreme Court on search Rory, and argued, and it occurred to me, I really like this. This is fun. And so it took a while to figure out the best way to grow the practice. We don't have an appellate specialty in the Georgia bar, as they do in some bars, perhaps even the California bar. But But I sort of then cut my teeth working for insurance companies handling appeals for their insurance. And now it's heavily tilted towards plaintiffs work.

Jeff Lewis: 5:34

Hey, Frank, how do you deal with the fact at least in California, appeals are affirmed or cases are affirmed anywhere between 70 and 90% of the time the appellants get to lose? How do you reconcile a personality where you always want to win with a practice area you've chosen where statistically every case is a big hill to climb?

Frank Lowrey: 5:53

Sure, well forgotten who said "Death is the Mother of Beauty." But But what I get from that is if the possibility of losing weren't very real, I don't think winning would be very sweet. And so I tend to think of a good appellate record as being more like, you know, a good batting average in the major leagues. But we also look we endeavor to beat those odds, those, those high performance rates bake in a lot of Criminal Appeals, a lot of small dollar appeals. And we like to thank and I think our record proves that we bring a value and odds beat in value to the appeals that we take on. certainly hope so.

Tim Kowal: 6:31

Yeah, that's right. Don't look at the 500 strikeouts, you look at the 50 homers,

Frank Lowrey: 6:36

what you said,

Tim Kowal: 6:37

Right. Well, you know, one of the reasons we wanted to bring you on the podcast, Frank was to talk about the recent case of Williams versus Harvey, issued by the Georgia Supreme Court. And I understand you argued that case and the Williams versus Harvey case, should be interesting to trial attorneys everywhere because it involves one of those dicey situations where counsel for the other side arguably violates an eliminated instruction. And the trial attorney then has to decide do I object and draw even more attention to this inflammatory comment? Or do I let it slide and hope that somehow I can still preserve this argument for appeal? So I wonder if maybe you can give our listeners just a brief rundown of the of the facts of the case and and your role in it? Sure, well, the the facts are simple to have given rise to such an interesting appellate issue. This is rural South Georgia, I don't know how it works in California, but in rural South Georgia, it is not uncommon to have a tractor running sort of half in and half out of the road as it moves from one field to the next. And that was the case the plaintiff was driving his tractor and the defendants fully loaded dump truck, Rams him from behind sending him flying about 100 feet into a drainage ditch, where in addition to almost drowning, he suffers terror. injuries that by everyone's count are terrible. And so is no defense to liability question I was gonna ask Was there any defense given on liability?

Frank Lowrey: 8:02

No, as it turns out, not not there was there is no good excuse for running into the back of a tractor with a dump truck. And the damages again, we're going to be considerable and the dispute was over how much and a particular dispute was over whether the plaintiff should recover the cost of in home care with his family, or the cost of nursing home care, which is cheaper. And so in closing argument, the plaintiff's lawyer said something along the lines of I hope you're not going to award nursing home care, I hope you're not going to consign my client to a nursing home, you would be citing his death warrant. We all know what happens in nursing homes. And there was no objection.

Tim Kowal: 8:43

I take it there was no evidence given on what happens in nursing homes, essentially, just the counsel was basically asking the court to take judicial notice of it or the the juror to take juror notice of it.

Frank Lowrey: 8:54

I think it would be fair to say that that argument was not supported by the evidence. And, and there was no objection, but our intermediate Court of Appeals decided that that didn't matter. And in doing so it drew on a line of cases that may have been unique to Georgia. I don't know. I think it's the law everywhere. Certainly, it's the federal rule. And I presumed the California rule that if you move to exclude something, and laminae just take a simple example, you know, evidence about the defendants insurance coverage, and that motion is denied. The Trial Court says No, Mr. Lewis, I'm going to allow that evidence at trial. You've perfected the record and you don't need to do anything else. You've made your objection. It was squarely overruled. And you're set for appeal.

Tim Kowal: 9:40

Yeah, you don't have to keep burdening the record and and annoying the judge by continuing to assert that objection over and over again.

Frank Lowrey: 9:47

That's right. And and in addition to doing those two things that you mentioned, highlighting evidence that is going to be admitted and heard by the jury for the jury.

Tim Kowal: 9:56

Yeah, so what happened with that motion eliminate was that it was made What was the ruling on that motion to eliminate?

Frank Lowrey: 10:03

There was a motion in limine. And it was essentially, don't let the plaintiff talk about anything prejudicial, or unduly sympathetic. And the trial judge said,

Tim Kowal: 10:15

was it really that vague?

Frank Lowrey: 10:17

It was absolutely that big. And the trial judge said, That's too vague to grant, but ended with language to the effect of notwithstanding, you know, any evidence or argument offered solely for the purpose of generating undue prejudice, or or overt, you know, sympathy, you know, essentially threw some adjectives in there instead of anything really, really prejudicial or really, really sympathy inducing. You can't do that that's prohibited.

Tim Kowal: 10:45

And what is that different from the state of law in Georgia? Just as a baseline?

Frank Lowrey: 10:50

No, I don't know if California is a federal rule state. But But I know that you also practice on federal court, that motion and limit eight is not really any more different than saying don't violate federal rule 403. It is not. And in as far as I know, in every state, but Georgia, a an objection to the death warrant argument would have been required, even even if the theory is the death warrant argument was unduly inflammatory and unduly prejudicial. And even if the trial court said we aren't going to be allowing that, I don't think there was a jurisdiction other than Georgia, where a contemporaneous objection to closing argument would have been excused.

Tim Kowal: 11:31

Yeah, maybe it actually would have been better for the judge simply to deny the motion eliminate and say, Look, defendant, you got you have to just raise your objections at the time that the the evidence is or arguments made.

Frank Lowrey: 11:44

So there's a subtlety there. And I'm glad you asked the question that way, had the ruling simply been motion in limine, he denied that, arguably, arguably would have preserved any objection to anything that would have been encompassed in that denied motion and limiting. Now the the gloss you put on it, essentially, essentially, the way you described the trial court's hypothetical ruling is a deferred ruling. And a deferred ruling in Georgia preserves nothing. So had the trial judge simply said, This is too generic, renew your objection at trial and stop there, we wouldn't have had this appeal. But because the trial court went on to provide what I'm sure the trial judge thought of as helpful, common sense direction that launched and appealed. And our intermediate Court of Appeals actually reversed, despite the lack of objection, relying on a line of Georgia Supreme Court cases that said that if you bring a motion in lemony, and it's granted, you need not object to a violation of that motion in lemonade during trial. And that was that was what the Georgia Supreme Court we entered the case after the Georgia Court of Appeals, our intermediate Court of Appeals ruled, we entered it for the purpose of seeking cert and and challenging this rule the Georgia supreme court level, and that is what the Supreme Court accepted cert on.

Tim Kowal: 13:03

Well, that's interesting now that with with your setup, then, when I read the the opinion, I didn't see anywhere, maybe I missed it, where the Georgia Supreme Court said one way or the other, that the trial court granted the motion eliminate or denied the motion eliminate, but that seems like a very critical part of the analysis.

Frank Lowrey: 13:21

So it is the the Court of Appeals treated that that prohibit that prohibiting language that I paraphrased earlier against essentially unduly or overly inflammatory arguments, treated that as a partial grant, and then treated the death warrant remark as as a violation of that partial grant. And the Supreme Court really said two things. One, they said we are overruling the line of cases under which a granted motion and limiting obviates the need for objection. And secondly, and this was our backup argument that this language wouldn't have preserved anything even under our existing law. It is hopelessly vague, too vague to preserve any specific objection. And so they essentially bit on both lines that we tossed on the water.

Jeff Lewis: 14:14

One of my favorite parts about the opinion of this case is not the opinion but the concurrence. Talking about generic boilerplate motions eliminate, I can't tell you how many cases I've been involved in where defense firm moves to exclude evidence of any and all settlement communications, insurance, etc. without identifying specific evidence. And without any particular analysis. It's a cut and paste from some forms file from some senior partner drives me crazy. I would hope that the caution in this concurrence would would help with this problem in Georgia, but I've seen similar concurrent cert concurrences in California and hasn't helped here.

Frank Lowrey: 14:53

Well, Jeff, I'm glad you brought that up. Because one of the questions I was going to ask you guys is is whether the practicing California is as prevalent in Georgia. The motion lemony that gave rise to the controversy In our case was the 33rd. Motion and limiting. And it was not the last, though there were 40 something motions in limonade, ranging from, you know, exclude exclude any evidence of this prior settlement proper to the ones we've just been talking about. Don't let the plaintiff do anything prejudicial. Right. And and I do know that that that has been a source of real frustration for Georgia trial judges. I've heard some of them speak on it publicly, essentially, under the heading of stupid motions, and lemony that have been in front of me, and I do, I do hope that practitioners will take justice baffles special concurrence to heart, although I hope that they don't hope that the trial judges don't read his concurrence as saying they should deny all these motions, because they may create a preservation that they don't mean to they need to be clear and using the language that Tim suggested earlier that I'm deferring ruling or I'm denying this as too vague, you're going to have to renew this at trial.

Tim Kowal: 16:08

Yeah, that's a very important distinction. And just to clarify, for our listeners, the contemporaneous objection requirement is the rule in California, the the case the California Supreme Court cases Warner construction Corporation versus city of Los Angeles, where it says that the in the absence of a timely objection, the offended, the offended party is deemed to have waived the claim of error through his participation in the atmosphere, which produced the claim of prejudice, that there was a interesting and artful way of putting it. I also noted, and I wanted to ask you this, Frank, because I had a question about potentially raising a motion for mistrial. The motion, the Warner construction case goes on to say the motion for a mistrial in the instant case can hardly be deemed a timely objection, as the claimed damage could not then be forestalled. And so when I was reading, reading your case, I thought, well, so so defense counsel is faced with the choice of bringing this this salacious comment up in an objection and further underscoring it to the jury, or at a minimum, even if the if counsel asked for a sidebar, that blast phrase is still hanging in the air as a cloud above the jury, just saturating their minds, while you talk about this in a sidebar with the judge, and you want to avoid that at all costs. So I wonder if maybe you could wait until the conclusion of the argument and then ask for a mistrial. But in the California rule, is that no, you have to ask for some kind of mitigating curative instructions. And I wondered if you could comment on that. And maybe your comment on how effective you think curative instructions are.

Frank Lowrey: 17:46

sure there's a lot there. And so I'll unpack it a little bit by little bit. Let's suppose for a moment that there were no emotion and lemony and and and the question you posed to me was, would emotion for mistrial at the end of closing argument be sufficient? Or do you have to do something at the time the offending remark is uttered? And the answer is you have to do something at the time the offending remark is uttered. And there are Georgia cases that have held that allowing even this isn't closing argument. This is this is cross examination, but that allowing even a few questions and answers to pass can be too much. We had the plaintiff side of an appeal at one time, where the trial judge got very frustrated with the witness, and with no solicitation by us a broken and said I want you to give plain and simple answers that a simple country boy like me can understand. That would have been okay. I wish I'm instructing the jury to take notice that this witness is being evasive aren't so that cross is a pretty clear statutory line in Georgia law. And one of the things that we had to work with we have two things to work with. One is that there was no objection immediately, it went a few more questions and answers. The other thing we had to work with is that we because we were also trying that case, not simply appellate counsel, our lawyer stood up and said, Your Honor, we are requesting that you give a curative instruction, that you didn't mean to be commenting on the credibility of the witness that the credibility of the witnesses entirely for the jury to assess, and, and if anything, the Court has said that suggests that the court found this witness incredible. That's certainly not what was intended. And and they didn't want to ask for that because they didn't want the problem cured. We wanted the problem cured because the trial was going splendidly. And so curative instructions to answer another part of your question are broadly presumed in Georgia to be effective. And when we argued the Williams case when I argued that one of the things I pointed out is, if you don't require a contemporaneous objection, there is no opportunity to cure it. This court has four times in the last 12 months in felony criminal cases, said that curative instructions are presumed to remedy any prejudice in serious misstatements of the law by prosecutors, you know, things a lot more serious than a civil case over damages. That's interesting, Jeff,

Tim Kowal: 20:19

I don't know the rule on that. Is there a similar presumption in California?

Jeff Lewis: 20:23

I've never come across it. But I've never actually litigated the the issue of curative instructions or admonitions before.

Tim Kowal: 20:31

Yeah. My own hunch is that the curative instructions probably don't do a heck of a lot. But on the other hand, I have I have interviewed jurors who who have mentioned that Well, yeah, such and such was said, but the court, the judge told us not to consider that. And so they do at least make an effort, at least some of them do. But you know, there is the toothpaste out of the tube factor. So that the persuasive, persuasive effect has already been made. How do you, you know, how do you talk yourself out of being persuaded by something?

Jeff Lewis: 20:59

Hey, Frank, let's shift gears here for a second, let's talk about a different subject matter. A big part of my practice in California is anti slap law cases, both the trial and appellate level. And I don't really practice outside of California. I was wondering, does Georgia have an anti slap law? Do you practice in that area?

Frank Lowrey: 21:18

Yes, Georgia has an anti slap law. It does not, it does not come into our practice commonly. In fact, I'm trying to think whether there would be any Georgia law you're likely to specialize in that maybe someone who defends a lot of media institutions for a living. But yes, we've got a law. And I presume it's fairly similar to California's but I can think offhand of one, one appeal that our firm was involved in in recent history involving that statute.

Jeff Lewis: 21:51

We do a lot of work here with it. Because in California, you have a right to an interlocutory appeal, the loser of the anti slap can immediately go up on appeal. And I did read in preparing for another podcast that the 11th circuit doesn't necessarily recognize anti slap or Georgia's anti slap law. So at least at the federal level, you might not see much slaps, that's kind of interesting thing, whereas in the Ninth Circuit, they do recognize the

Frank Lowrey: 22:16

the slap law. That's that's interesting, Jeff. So in one respect, our our law was similar, you can take a direct appeal as of right and interlocutory appeal as of right to an order granting or denying a motion to dismiss or strike under our slap statute. But that's in the Georgia appellate system. I guess I'm not surprised. I was unaware until you just told me that the 11th circuit doesn't enforce Georgia's anti slap statute. But I suppose that I am not surprised. I suppose that the right to file suit in federal court, yet be constrained by by state statute. I guess that's

Jeff Lewis: 22:59

the big controversy is whether or not under the Erie doctrine, it's procedural. Sure. But matto had a lawsuit and the question was whether the federal court would apply slop laws or not. And it's a huge split that at some point, maybe the Supreme Court will take up on whether or not slaps are procedural or substantive under Erie?

Tim Kowal: 23:20

Yeah, they will. I've seen ninth Ninth Circuit cases that will decide them under either a motion for summary judgment rubric under Rule 56, or under a motion to dismiss rubric under 12 be invoking their own, you know, the federal system zones procedural remedies. But then I've also seen Ninth Circuit cases, not talk about that at all, and just just treat them like a California appellate court would.

Frank Lowrey: 23:45

Yeah, the parties sometimes don't make the right arguments. And I wonder whether it's really an Erie problem, or the really reach back into the geek files a Hana versus plumber problem. A Hana vs. plumber problem arises when there's a federal rule on point to the issue. And so there is a federal rule 12 that specifies exactly when a complaint may be dismissed. And it does not impose a probability of success requirement as our Georgia slap statute does, and does not provide for the grounds for dismissal that are in the Georgia slap statute. You know, I haven't spent all of about 90 seconds thinking about it. If I had to take aside on that. If I had to take aside that debate, I would say that the Federal Court should not be applying anti slap statutes, although I'm happy to be hired on either side of that dispute.

Jeff Lewis: 24:36

What's interesting, you know, a lot of recent cases in our state system, opinions have expressed real concern about an abuse of that right of intermediate interlocutory appeal with a Court of Appeal recognizes that, you know, Justice delayed is justice denied and defense firms are using it just to slow things down. It's interesting.

Frank Lowrey: 24:58

I guess if you can, if you can, maybe To the thinking of the federal courts on section 1983, qualified immunity defenses and how qualified immunity, denial of a motion dismiss under that basis is immediately appealable. The theory being even allowing the lawsuit to proceed to final judgment is a violation. You know, in this case, it would be a violation of the First Amendment rights of the of the slapped plaintiff. But yes,

Tim Kowal: 25:25

break I had a question about comparing the California Supreme Court and the Georgia Supreme Court and the way they approach review of the cases in California, our supreme court exercises a lot of discretion over what kinds of cases that wants to take. You could have a case that is that was completely sideways on the law. But if it's not a sufficiently important policy objective, that's that's implicated, it probably won't get the the our supreme court's attention. I wonder if if the Georgia Supreme Court is similar in the way it approaches cases. So

Frank Lowrey: 25:58

I think probably so the majority of our current under our current configuration of our appellate courts, the majority of our supreme court's jurisdiction is sorority. It actually does have direct jurisdiction in some cases. But but leaving that aside, I think our courts approach to search arare has become increasingly like that of the US Supreme Court over recent years. Over the course of my practice, I've seen the court go from granting cert when it thinks the Court of Appeals got it wrong to granting cert only when it thinks that there is a critical issue of law. And so the operative language in our cert rule is issues of great gravity of importance, not only to the case of hand, but also to the state in general. And I think our our Georgia Supreme Court has increasingly focused very heavily on using insert docket that way

Tim Kowal: 26:55

to the litigants have much of much of a chance of getting review in the Georgia Supreme Court.

Frank Lowrey: 27:00

So we talked, we talked earlier about the odds of reversal. And certainly the odds of getting served, if you just look across the range of cases in which it's sought, easily under 10%, probably somewhere around 8%. Having said that, if you focus on cases that raise interesting unsettled issues, and you steer the cases towards developing those issues, you know, in any given practice, you can have a higher probability of review. So we do a fair amount of business on cert review in the Georgia Supreme Court.

Jeff Lewis: 27:39

And the California is intermediate court, the California Court of Appeal, everybody's got a right to argument unless both sides waive it. And that never happens. And my experience, especially representing appellants, as I walk up to the podium, the justices have clearly already made up their mind. And they looked at me, not terribly interested to see me. And I was wondering, in Georgia, first of all, is there a right to oral argument and their intermediate Court of Appeal at the state level? And what's your experience the oral argument there in Georgia?

Frank Lowrey: 28:09

So let's talk about our our intermediate court first, and we have only one intermediate court a staff by I think it's 15. Judges now that sit in three judge panels. So oral argument is not automatic. You have to request oral argument, you have to explain why you ought to get it. I have heard Georgia Court of Appeals judges, and clerks say that about 80% of the cases are resolved without oral argument. But that 80% comprises a lot of small Criminal Appeals, small value appeals. If you are before the Georgia Court of Appeals with a reasonably high stakes civil case. Well argued on both sides. I think your odds of getting oral argument granted are pretty high. You know, 50 60%.

Jeff Lewis: 29:00

Interesting. Well, yeah. So you know in LA Well, first of all, we don't do a lot of cases involving tractors crossing roads. And second, in the second Appellate District, second Appellate District will cut which covers the Los Angeles, we have eight divisions with three to four justices, each a lot more, a lot more of a workload. And it just shocks me that they allow still for the right to oral argument. I wish they had more of a system for filtering out the cases they truly want to get from the parties, both in terms of litigants costs, and preparing for argument, just having a higher quality argument.

Frank Lowrey: 29:34

I think that that I think that that makes sense. I can see I can see why even an appellate specialist would want that perhaps particularly an appellate specialist

Tim Kowal: 29:43

would have to do any of the Georgia appellate courts issue tentative decisions.

Frank Lowrey: 29:48

No, I'm familiar with that process and California just based on the California based appeals that we've been in, and it's it's it's interesting to be handed For and perhaps your tentative death warrant when you walk into court but at least that gives you something clean to shoot at. I don't know about YouTube, but but one of my least favorite ways for oral argument to go is me making a speech with no questions called bench that's I don't I don't know whether, you know, I don't know whether I'm they're not asking me questions because I'm winning because I'm losing whether they've gone to their happy place. I, you know, I what I really want is I want enough questions where where they are implying against me, I know why. And I get my best chance to turn them around. And sometimes I will, sometimes they won't. But But no, the overwhelmingly the GA arguments that I do, the courts are fairly lively. And you might get a good strong sense of the inclination of a particular judge or so. And then the 11th circuit arguments are nothing but non stop questions. In fact, I've long since dispensed with the may it please the Court I'm Frank Lowery, from this law firm, I represent the plaintiff in such and such, I just stand up and say, I'm inclined to start on this topic. Unless the court wants me to talk about something else.

Jeff Lewis: 31:13

I still, I still rely on that crutch to get me warmed up and go in of may please the Court Jeffrey Lewis, just get rolling that second sentence.

Frank Lowrey: 31:21

I am so tired of having to fall jerked out when they like Charlie Brown and Lucy. And so I don't give them the pleasure of doing it. Sometimes it will simply be, you know, where would you like me to start? Yeah, they've got a piece of paper up there that says who you are and who you represent. So you get a sense, from your oral argument experience, about how many how often oral arguments are consequential to the decision? It's really hard to get any sense of that. Because, you know, unlike the California practice, you know, there's no, you don't know where they were when you started. And and so it's hard to judge that. I suppose you could sort of back into it by saying, how many oral arguments have I had where the tenor of the questioning? throughout both sides arguments overwhelmingly suggest that they came in with a decision? And and I'd say that's a lot of them that they come in with a tentative leaning? I don't know.

Jeff Lewis: 32:21

One of the challenges we have in Southern California is budgets in an LA and an Orange County. They don't supply court reporters automatically for civil matters. And so one of the challenges is sometimes we'll get calls from a trial lawyer says, hey, I've got this appeal, the opening briefs due in 30 days, there's no reporters transcript, which limits the kinds of issues you can raise on appeal. And I was wondering, first of all, does Georgia have a similar issue in terms of budgets and reporters? And second, are there any issues like that some big problems that you face as an appellate lawyer in Georgia that you see coming up?

Frank Lowrey: 32:55

Wow, that's that's an interesting fact that now learned about the California appellate system. Well, one of the answers that is that in Georgia, the parties pay the reporter, though, so the the cost of the transcript is allocated to the parties. And if you want your appeal to go up, but somebody's got to pay for the preparation of that transcript. And so there's all you know, unless both parties way that there's always going to be reporter they are taking it down and the reporter is going to get paid by the parties.

Tim Kowal: 33:24

So those are the reporters there. It's just a matter of paying for it. It's almost like a filing fee. Unless both parties waive court reporter. Yes.

Jeff Lewis: 33:33

Yeah. To be clear, Frank. So yeah, for most of my career, first 20 years of my career, there was always a body. There's always reporters, they are transcribing. But for the last five years or so, there's in a civil matter, unless a party hired a court reporter to show up no transcript.

Frank Lowrey: 33:48

Yeah, the judges have court reporters who work in their courtrooms. They are employees of the court, but they are paid by the parties. If you were to get an appeal in Georgia, where there was no transcript you would be severely constrained in the arguments you could raise in Georgia. If proceeding is not transcribed, it is conclusively presumed that the evidence presented sustains the result, you would have to you would have to somehow have, you know, a Preserve. I don't know what it would be, you know, I don't know, there would have to be sold. Now,

Tim Kowal: 34:20

I don't know, the judge's ruling would have to basically say that I'm not going to follow the law.

Frank Lowrey: 34:25

Sure. I suppose I suppose that the the the, you know, the court could enter an order reciting things that happened at trial that could indicate, for example, that an instruction was or wasn't given. But even then you really just don't have appeals without transcripts. In Georgia, there is a theoretical procedure in our appellate code where the parties can agree upon a summary of the evidence in lieu of transcript. And and to the extent they disagree. The trial judge can be the arbiter, but that's archaic. Nobody does that.

Tim Kowal: 34:57

Yeah. I have a wish. A colleague of mine shared a story where they had to do that. And the trial judge decided, no, I'm not going to do that. Your your motion for a settled statement is denied. They took that up on on appeal on a writ. And the Court of Appeal said, No, it's not an abuse of discretion.

Frank Lowrey: 35:15

So let me ask you one facet of California practice. I believe I remember this, but it sounds too good and too odd to be true. I understand that if you are successful on an appeal, and the outcome of the appeal is that the case is going to go back down to the trial court, that you have some right to a new trial judge. Is that true?

Jeff Lewis: 35:34

Yes. Most of the time, as long as we're not talking, as long as the judge had been sitting in some sort of Trier of fact rule, then yeah, you get what's called a new peremptory challenge, where you can just say that judge is by presumably biased against us, and we get a new judge.

Tim Kowal: 35:51

Wow, that's, that's one of the top questions that potential clients will ask me. So if we win, and we get this terrible judgment reversed, I don't have to go back to the same judge who hates me, do I? Yeah.

Frank Lowrey: 36:02

And I've had the I've had the experience, particularly where it was a bench trial. I'm thinking about a case in particular, we had about a month long bench trial, and the judge ordered certain categories of damages. And and we convinced the 11th circuit that the evidentiary record was not sufficient to sustain those and and I thought we were going to win, the court said, so you got to go back down. And the other side gets to present more evidence and and the same guy who ruled against you last time is going to decide whether he was right or wrong. So you can guess how that went? Like? All right, Mr. Lowry. You can tell me the rules. But let me tell you how this is gonna turn out. Yeah,

Tim Kowal: 36:39

yeah. It's called a symbolic victory.

Jeff Lewis: 36:42

Yes.

Tim Kowal: 36:43

And a temporary one at that.

Jeff Lewis: 36:45

That's all right. Hey, let's shift gears here and talk about a recent California case that came down about professionalism and civility. I have to say one of the reasons that I started appellate law or start practicing this area, is it's a smaller, more collegial bar. And the trial lawyers, and there were fewer personal attacks. It just seemed more professional. And that's what really drew me to the practice, you know, 20, some odd years ago. But lately, I've seen creeping in to appellate briefs, some of the stuff that happens with trial wars, that turns me off the personal attacks and whatnot. And I want to talk about this case that came down this past week and get your thoughts on both of you, Tim and Frank. The case is Salisbury engineering versus consolidated contracting services. And it's a sub part of that case, there's a contempt order, referred to as inrae. Mahoney will have a link to the case in the show notes involved attorney Paul mahonia Mahoney and Saul. And this is a typical business dispute, the opinion came down. And when the opinion came down, affirming the result below. Attorney Mahoney filed a petition for rehearing and the Court of Appeal issued an order denying that petition for rehearing which is not unusual petitions for rehearing are rarely granted. But the simultaneously the Court of Appeals said and OSC re contempt and highlighted some of the arguments that were made in the petition for rehearing, noting that the petition for rehearing did not cite a single statute or decision and didn't really have any substantive analysis and basically use name calling. And one of the things arguing the petition for rehearing was a suggestion that the court did not follow the law and assertion in the petition for rehearing was at the court ignores facts, and that one of the statements made in the petition for rehearing was that the court The Court of Appeal, indiscriminately screwed the losing party. So oral argument was held on that.

Tim Kowal: 38:44

We all want to say it from time to time, don't we?

Jeff Lewis: 38:48

Most of us have that little voice Tim that says don't say that in a petition for rehearing. So, anyway, there was an argument held no no ruling was made on the order to show cause until the petition for review in the Supreme Court was filed to denied. And the minute the supreme court denied review of the underlying dispute. The Court of Appeal issued a scathing order that that that held that attorney in contempt and it started with we publish this decision as a cautionary tale. You never want to receive an opinion that starts that way. And it talks about some of these these these arguments that were made in the absence of any substantive analysis. And it goes on to say, we are professionals, like the clergy, like doctors, like scientists, we are members of a profession, and we have to conduct ourselves accordingly. Most of the profession understands this. The vast majority of lawyers know this professional speech must always be temporary and respectful and can never undermine confidence in the institution. cases like this should instruct the few who don't. If you think the court is wrong, don't hesitate to say so explain the air, analyze the cases. The court relied on and delineate a mistake do so forcefully, and then proceeded to find this lawyer in contempt. And that was just wondering, you know, my experiences over the years is that you know, these personal attacks have started to increase or maybe I'm just becoming more sensitive to it. In your experience either timber Frank, have you noticed a decrease in civility in the appellate bar?

Frank Lowrey: 40:26

I don't think that I have, Georgia is a courteous place, for the most part to practice law, there are practitioners who are guilty of over the top comments typically about the other lawyer, not as in this case of the court. So I haven't really noticed a lack of civility, you will see you will see harsh language in briefs from time to time and in my experience, that almost always works against the party using that kind of language. If you are credible, and you have a reputation of honesty and clarity before the court, the court will protect you, but you don't have to protect yourself. And the best way to defuse that language is is to is to show that whatever representation they're challenging is perfectly accurate. And what the court do what it's going to do from there. But yeah, I read that opinion as well. And and, you know, it's such an over the top example that, you know, I don't know, I don't know how useful it really is as a cautionary tale lesson. You don't frequently have attorneys imputing, the courts themselves and their briefs.

Tim Kowal: 41:36

Yeah, you're you're right. And even the The Court of Appeal here, acknowledged that it said thankfully, this kind of conduct does not come up much. It put that in a footnote. But so I thought that kind of undercut against the professed need to advertise that in a in a published decision as a cautionary tale. And in my view, it seemed what what really startled the court, maybe as much as anything, was how pointless and witless the attacks were because they didn't seem to go anywhere as the court Woods kind of belaboured that there was no analysis given by the attorney didn't bother to say what facts the court got wrong, what law the court got wrong, didn't take up any of the analysis or cases offered in the in the opinion. And the EPA titas, quote, came to mind by nothing is the rational creature so distressed as by the irrational? rationality was really what perturbed the court.

Frank Lowrey: 42:31

Yeah, I honestly, I read this and my real reaction to what was sadness, because I obviously don't know anything about the facts of this case, or any of the people involved in it. But but the behavior seems symptomatic, more of maybe some some personal struggles, rather than a belief that this behavior was appropriate or justified. And no, we all know, Proxima was a very stressful job. And after doing it for decades, you know, so maybe, maybe there were maybe there were more warranted measures there. Who knows?

Tim Kowal: 43:05

I didn't think that the attorney got off easy with only 2000 bucks, probably more concerning was the referral to the State Bar.

Jeff Lewis: 43:13

Yeah, he's gonna have MC Li classes in his future

Frank Lowrey: 43:18

is kind of interesting to think about this two things occurred to me, you know, it's such an extreme example, that it hardly seems necessary to say, you know, this podcast or any other Don't do this. But But one of the things that occurs to me it's kind of interesting is, you know, there are not, as far as I know, any other organs of government that can say, Don't impugn confidence in me, don't attack my integrity, you know, that's a constitutional right. With respect to the executive branch, the legislative branch, and I suppose outside of legal briefs, this lawyer would have been free to say all of those things, I assume, without sanction. It is kind of interesting.

Tim Kowal: 43:58

But here's the I'll, I'll go off on a very brief tangent on this. What what occurred to me when, when the court went on, on a little bit of a discursive about the the integrity of the court and went back to Francis Bacon, and, and cook and and black, about how it's just beyond the pale to, to call into question the integrity of the court. And I think, you know, that's that's all that's obvious and clear, but I do. One thing came to mind was that the Congress at one point when it enacted 42, USC 1983, to give to give cause of action against state actors, it did not include judicial officers. And at that time, judicial officers were were among those who are denying African Americans, former slaves, the rights accorded them by law, and it was the judiciary who took it upon itself to find a judicial immunity, where none had been offered by the legislature. And I thought, you know, it just occurred to me when the when the court itself is saying, No, we are beyond questioning. Well, the Congress didn't think so. You're the one who Keep saying that you're beyond questioning maybe the public from time to time has a point. And this was not the right. The right case to to suggest that there's anything to impugn the the court for because the the attorney here was just I think, I don't know if he was having a senior moment or something had gone 50 plus years as an attorney. And I don't know where he thought that this that he could get away with this. But I just thought that that that maybe the court is is overstating it just a bit that the that the courts integrity is is never in question. It just can't be questioned in this manner.

Frank Lowrey: 45:31

The other thing that occurred to me too, and I don't know how prevalent this problem is, across the country, I have occasionally read appellate opinions that I thought were unfair to the lawyers were gratuitous in either poking fun at or, or criticizing the the conduct of the arguments of the lawyers. And and I think that is the kind of thing that courts have to be so very careful about. And I don't say this, this does not seem to be an example of that. Let me just be clear, but I have read appellate opinions where I've thought, you know, you've got to be so restrained, because this is not a fight among equals, this lawyer can't punch back at you, you know, if you want, if you want to have a private discussion, where everyone can say what they think, you know, fully and fairly, that's fine. But But it seems to be that part of the judiciary and maintaining respect for its integrity is, is being Oh, so careful of how it uses its power, you know, to comment on lawyers and parties.

Jeff Lewis: 46:37

Yeah, that's a good point. You know, one lesson that I drew from this case is, I don't know if this particular lawyer was trial counsel. But sometimes when Trial Lawyers handle their own appeals, they are so fired up still from the loss at trial, that they lose perspective, and that without sounding overly marketing of ourselves, what a great opportunity for an appellate lawyer to come in and give a cold sober reading of the record, and, and bring down the emotional level.

Frank Lowrey: 47:06

That's a that's actually a very good point. I'm sort of you know, it's like having a surgeon operate on his or her own family member. I understand. That's not really done. So maybe there's something to that.

Tim Kowal: 47:16

Yeah, great analogy. Yeah. The final procedural point, I

Jeff Lewis: 47:21

want to note, Tim, is I noticed that this order of contempt was issued. And then ultimately, excuse me, ultimately, the entire case was remanded. And there's no opportunity for Supreme Court review, at least directly from that order. And I was wondering if you saw that had any thoughts about that?

Tim Kowal: 47:36

Yeah, I noticed that I had never seen a contempt citation issued by a court of appeal. I know that when cat content is ordered by the trial court, it's not reviewable directly, you have to take it up on a writ petition. So I assume it's, it's a similar kind of procedure. Now, the the remittitur at all already been issued. So I imagine the the attorney would have to make a motion to recall the remittitur. And as part of seeking review by rip to the Supreme Court, I would guess, you know, I'd

Jeff Lewis: 48:05

like to see that that brief motion. I'd like to read that. We'll have to look Google that. Okay, we've been we've been talking for some time here. Let's shift gears to the final portion of the interview and that is our world famous lightning round. Break prepare yourself. These are the most important and vexing questions that concern appellate nerds around the world. We are looking for your shortest responses, sometimes one sentences if you can. Alright, are you ready? Frank?

Frank Lowrey: 48:36

I'm ready. I wasn't given advance notice of this. I just want anyone listening to this to know that I'm going into coal.

Jeff Lewis: 48:43

Alright, here we go. Font preference century school book garmont. or something else? Times New Roman. You're a monster. Frank. You want to weigh in here, Tim?

Tim Kowal: 48:55

I still only use Times New Roman in in trial briefs. I I think we've all abandoned it here in the in the court of appeal. Are you under a word counts? Are you under a word count or a word count where it's

Frank Lowrey: 49:08

going? It doesn't matter. You're right. Times New Roman gives you more space. It's more compact than for example, the the choreo books and so forth. Yeah,

Tim Kowal: 49:18

there we go. It's it's strategic rather than stylistic? Well, let's use your answer then.

Unknown: 49:23

Yeah, that's it. Let's

Jeff Lewis: 49:24

give you a chance at redemption. two spaces or one after a period

Frank Lowrey: 49:30

I used to, but I submit that nothing important turns on this. We just got finished telling us that you have a space constraint. And now you're going to use two spaces. I have done experiments and there is virtually no space advantage games with the extra do with reducing edge space after the period I've taken the same brief run macros through and looked at the results.

Tim Kowal: 49:53

Your scientific justification is getting nowhere with Jeff

Frank Lowrey: 49:58

told me one time Nothing says over 40 like two spaces after a period.

Jeff Lewis: 50:06

Yeah, my young associate says the same to me. All right, case names, underlined or italicized,

Frank Lowrey: 50:12

italicized, underlining is for people who still use typewriters.

Jeff Lewis: 50:17

There are some of those when referring to pleadings, pled or pleaded.

Tim Kowal: 50:23

I usually use pleaded correct answer. Nope. All right,

Jeff Lewis: 50:30

final chance at redemption. The parents medical cleaned up, do you use it at all in your briefs?

Frank Lowrey: 50:37

So I've never used it, but it's never occurred to me to use it. I've actually seen it only once recently, I would go out on a limb and say it's probably never been used in the Georgia appellate brief. So it's it's intriguing, I assume what it does is if you get rid of internal punctuation, or brackets from the original source material, you simply put cleaned up as opposed to punctuated punctuation admitted omitted or something like that.

Jeff Lewis: 51:02

You eliminate all kinds of punctuation, like brackets, ellipses, citations, and everything and cleaned up is just like a big catch all for Yeah, we just cleaned it up and took all the yuck away. Just read these magical words. I'm a big fan of it.

Frank Lowrey: 51:17

Okay, well, I'm actually I'm going to take that to heart, because that seems like it would save me space.

Jeff Lewis: 51:23

But let me say this, it hasn't yet to be used in any California decision, or California opinion. As far as I know, at least the Court of Appeal, it has made its way into one US Supreme Court decision and a smattering of federal court decisions.

Tim Kowal: 51:36

But thus far, you're going to confuse and surprise your reader in most instances, I think so I would think the good writer would would try to complete his work product with a minimum of ingenuity.

Jeff Lewis: 51:48

You have a nice little footnote that explains what cleaned up is refers to a case and then the appellate justice could think oh, my goodness, Frank is progressive Frank's on the cutting edge. I want to hear more from Frank.

Frank Lowrey: 51:59

I assume they all listen to this podcast. So they're already aware of the practice.

Jeff Lewis: 52:05

All right, crank you up. Sarah survived our dreaded lightning round. Before we conclude any other tips or thoughts that you might want to share to trial lawyers who listen to this podcast who are looking for tips to help their appellate lawyers? Sure, this

Frank Lowrey: 52:23

is this is kind of random, but but give thought give careful thought to things they're going to influence your appeal. And as one example, in Georgia, it matters terribly whether you use what we call a general verdict form or a special one. I don't know if California uses the same dichotomy. A general verdict form is, you know, find for this party. And here's the dollars and a special verdict form is broken down by causes of action and so forth. And so a lot of a lot of trial lawyers will default to the simplest possible verdict form. But in Georgia, for example, any error as to any theory that goes to the jury is probably reversible error if you use a general verdict form because you can't tell whether it influenced the outcome or not with a special verdict form, your your your your verdict may be more appeal proof. Because it may be clear from the way the jury answered certain questions that the error didn't affect anything. That is the kind of thing that you ought to have an appellate lawyer involved in your trial to help you with.

Tim Kowal: 53:24

That's, that's interesting, because my I have a different perspective on that. And that is, the more interrogatory is you ask the jurors, the more likely you may be to confuse the jurors and thus get an inconsistent verdict. All true,

Frank Lowrey: 53:38

that and that's why it's that's why it's art, not science. And that's why again, having an appellate lawyer involved at that trial level to to look at things like jury charges, the verdict form all of those things. Tim, we've

Jeff Lewis: 53:51

never done an episode on verdict, special verdict forms, or verdict forms and jury instructions. We should do one just on those issues.

Tim Kowal: 53:58

Yeah, yeah. We'll have to get one of those in the can.

Jeff Lewis: 54:01

All right. Well, hey, Frank, this has been a pleasure to get to know you a little better. You're the brightest and only Georgia appellate attorney. I know. You've been generous with your time. So thanks so much for being here.

Frank Lowrey: 54:12

Now, I enjoyed meeting both of you. It's been a pleasurable discussion, and I'm going to go think about this font issue and space issue carefully so and cleaned up and cleaned up. You guys take care. Thanks. Thanks. Right. Well, that

Jeff Lewis: 54:26

wraps up this episode.

Tim Kowal: 54:27

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 upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis: 54:42

See you next time.

Announcer: 54:44

You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases in years 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 ca l podcast.com. Thanks to Jonathan Caro for Intro music. Thank you for listening and please join us again