So you have a judgment that is about to expire, but the judgment-debtor has filed for bankruptcy. Can you renew the judgment? Or does the bankruptcy stay apply until the stay expires?

Yes, says the recent published opinion in Rubin v. Ross (D4d2 Jun. 4, 2021) no. E074210. Yes to both.

Justice Menetrez concurs, asking: both? That doesn't exactly make sense, now, does it?

In Rubin, the creditors got a judgment in 2007. The debtor filed for bankruptcy in 2009, which was still going on in 2019 when the creditors filed their renewal. The debtor challenged the renewal and, when unsuccessful, appealed.

The automatic bankruptcy stay under 11 US.C § 362 does not preclude renewal of judgments:

As an issue of first impression in California courts, the Fourth District Court of Appeal declined to follow the only federal court on the question whether the bankruptcy stay affected a creditor's right to invoke the judgment renewal procedures under Code of Civil Procedure sections 683.120 and 683.130. In In re Lobherr (Bankr. C.D.Cal. 2002) 282 B.R. 912, the bankruptcy court concluded that section 362 preempts California law concerning renewal, and that 11 U.S.C. § 108(c) extends the time to seek a renewal.

Rubin disagreed with Lobherr that renewal is preempted, reasoning that, contrary to Lobherr, renewal is an ex parte procedure that does not require service of the application for renewal, and thus is purely a ministerial act that does not interfere in any way with the bankruptcy estate. (Justice Menetrez points out that this is not quite true, because the application for renewal triggers a procedure by which the debtor may assert any claims or defenses to the judgment, akin to a motion to vacate. This process certainly would be stayed under section 362.)

A judgment creditor enjoys an extension of time under 11 U.S.C. § 108(c) to renew a judgment pending debtor's bankruptcy:

In addition to having the right to renew a judgment pending bankruptcy, the Rubin court also held that creditors enjoy an extension of time to renew following expiration of the bankruptcy stay pursuant to 11 U.S.C § 108(c). While Ninth Circuit precedent has held this, Rubin now furnishes a binding California Court of Appeal authority on the point. (Justice Menetrez agrees with this holding.)

Concurring, Justice Menetrez notes an incongruity between the Rubin majority's two holdings:

But as Justice Menetrez's concurring opinion suggests, there is some incongruity between the Rubin majority's two holdings. If the stay does not prevent the creditor from seeking renewal, then how does the stay extend the creditor's time to seek renewal? Section 108(c) provides that the period to commence or continue a civil action "does not expire until ... 30 days after notice of the termination or expiration of the stay ... with respect to such claim." The Rubin majority says nothing in section 362 "conditions its grant of an extension" on an "actual[] prohibit[ion] from acting." But in this commentator's view, the language "30 days after ... expiration of the stay" sets up the stay as the triggering event for the extension: no stay, no extension.

Bankruptcy does not "toll" the time to renew the judgment:

In a footnote, the majority offers this important distinction: "Toll" means to suspend or stop the statutory period, and the tolled period is added to the end of the allowed period to take the action in question – here, to renew the judgment. But a bankruptcy does not "toll" the statutory period. Instead, section 108(c) has been interpreted to provide a 30-day “grace period” or “extension” for a judgment creditor to perform any act necessary to commence or continue a claim following the expiration of a bankruptcy stay. (Rogers v. Corrosion Prods. (5th Cir. 1995) 42 F.3d 292, 297; see In re Spirtos (9th Cir. 2000) 221 F.3d 1079, 1080-1081 (Spirtos).) Meaning: You get the 30-day extension period only. Otherwise, the 10-year period to renew the judgment never stops running.

The Upshot: If you have a judgment, do not be deterred by debtor's bankruptcy from timely renewing that judgment. But even if you are deterred, you still get a 30-day extension of time after the bankruptcy concludes.

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.

I confess I probably would have turned away the defendant in this case had he asked me to take up his appeal from a judgment finding him liable as the alter ego of his company on a loan obligation. Alter ego findings are very difficult to reverse, and the defendant in Creation Harmony Trading, Inc. v. Li (D2d4 May 27, 2021) no. B301004 (non-pub.) personally promised to repay the obligation. And not only is the finding reviewed on the very deferential substantial-evidence standard, but there was not even a court reporter at the trial! Game, set, and match, I would have concluded.

Yet, the defendant got the judgment reversed on appeal. And the defendant showed there are limits to the alter ego doctrine. Here is how he did it.

Defendant corporation borrowed over $300,000 from plaintiff for its car purchasing business. The corporation later fell into arrears. The individual defendant, as the "responsible party" for the defendant corporation, signed an arrears summary stating $100,000 was still owing. But the corporation never paid any further on the principal.

The individual defendant explained the company couldn't pay because someone else owed him money, and he promised to pay the plaintiff once he got the money. The individual also admitted he was "doing the car purchasing business both under the company's name and his own name."

The trial court entered judgment against both the company and the individual jointly and severally.

In the absence of a reporter's transcript, the appellant may use a settled statement:

To overcome the lack of a reporter's transcript, the appellant obtained a settled statement. A settled statement is a summary of trial court proceedings approved by the trial court under California Rules of Court, rule 8.137. Settled statements are relatively rare, and trial judges may even refuse to issue them: the refusal is reviewed for abuse of discretion, but worse than that, it is not reviewable on direct appeal, and can only be reviewed via writ, and I understand the Courts of Appeal are not inclined to grant writ review.

But the trial court did issue a settled statement here. And the record via settled statement possibly proved more favorable to the appellant than a reporter's transcript would have.

The substantial evidence standard of review is difficult, but not impossible, to overcome on appeal:

When the Court of Appeal reviews the trial court's factual findings, it will leave them undisturbed when "there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.)

“Substantial evidence,” however, is not “ ‘synonymous with “any” evidence. It must be reasonable ..., credible, and of solid value ....’ [Citation.]” (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) “While substantial evidence may consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest on the evidence’ [Citation]; inferences that are the result of mere speculation or conjecture cannot support a finding. [Citations].” (Ibid.)

Substantial-evidence review is not to be understood as no review at all: “Substantial evidence is therefore not merely an appellate incantation designed to conjure up an affirmance. To the contrary, it is essential to the integrity of the judicial process that a judgment be supported by evidence that is at least substantial. An appellate court need not blindly seize on any evidence in order to affirm the judgment. The Court of Appeal was not created merely to echo determinations of the trial court. A decision supported by a mere scintilla of evidence need not be affirmed on review." (Roddenberry v. Roddenberry (1996) 44 Cal. App. 4th 634, 652.)

Here, the Second District Court of Appeal, noting the "limited record" (which ordinarily disfavors the appellant) prevented affirmance of alter ego, which required "detailed findings." (No citation is given for this purported requirement, and where no statement of decision is requested – and there is no evidence of that here – the trial court actually is not required to make express findings.)

Working in the appellant's favor here is the settled statement. The settled statement is prepared at an early stage in the appeal, where the respondent may not be aware of the appellant's theory on appeal. Here, the respondent might not have included all the evidence that might have supported the judgment on appeal – even inferentially if not directly. Relying on the settled statement, the Second District observed that the respondent plaintiff failed to cite to the record in support of its contention that the individual defendant failed to segregate his funds from the corporation's and treated the corporation's assets as his own. The court held that the evidence that the individual defendant agreed to pay back the loan when his personal loan was repaid, and that he does the car business under his own personal name, could not support an inference of commingling. I found this surprising, but the court cited case law in support: Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 539 [parent company's contribution of funds to assist subsidiary in meeting financial obligations does not render parent liable for subsidiary's obligations].

But arguably there was a unity of interest demonstrated by the individual's promise to guarantee the corporation's contract. (Mid-Century Ins Co. v. Gardner (1992) 9 Cal.App.4th 1205, 1213, fn. 3 (Gardner).) But the court distinguished that, in this case, the promise was only for one debt, not the corporation's debts generally. And the respondent did not argue the individual defendant breached his promise to repay in its complaint, at trial (at least according to the settled statement), or on appeal. This forfeited the argument. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [arguments not raised in the trial court are forfeited on appeal].) Forfeiture more often is applied against appellants, but it may be applied against respondents, too.

Finally, the respondent failed to establish the alter-ego finding was necessary to avoid an inequitable result. “The purpose of the doctrine is not to protect every unsatisfied creditor, but rather to afford him protection, where some conduct amounting to bad faith makes it inequitable, ... for the equitable owner of a corporation to hide behind its corporate veil. [Citation.]” (Gardner, supra, 9 Cal.App.4th at p. 1213 (italics in original).) Again, there was no evidence in the settled statement of any bad faith.

The Upshot: In the appropriate case, the Court of Appeal may reverse for lack of substantial evidence supporting all the necessary elements of a claim. And a settled statement can be a viable substitute for a reporter's transcript on appeal. But, still, and although, I would not bet on it.

Class actions only very loosely resemble the practice of law as most attorneys know it. Yes, they involve plaintiffs suing defendants in court before a judge. But most of the class members don't even know they're in the case, and wouldn't know their attorney if he showed up and their doorstep delivering their settlement check (in this case, a check for about $0.15). Things are much different for their attorneys, however, as was the case in Briseño v. Henderson, --- F.3d ---- (9th Cir. June 1, 2021), who proposed to pocket millions from what the Ninth Circuit held to be a collusive settlement agreement in a false advertising case over cooking oil.

The lesson from Briseño is that courts must closely scrutinize class-action settlements, even after class certification. In fact, the courts will presume they shortchange the class to the benefit of its attorneys. "Rule 23(e)(2) assumes that a class action settlement is invalid." If the trial court presumes otherwise, it abuses its discretion. So “ ‘[t]o survive appellate review, the district court must show it has explored comprehensively all factors.' "

The new clarification Briseño provides is that this rule applies both pre-class certification and post-class certification.

An ancillary lesson from Briseño is, experts will say anything.

And the much less important but more entertaining lesson from Briseño is: Judge Lee really loves puns (such as: the attorneys suing Wesson here were "hoping to strike oil"); and pop-culture references to Star Wars and the Hamilton musical.

Short Summary of the Wesson Oil Class Action:

The basic facts were these: Wesson labeled their cooking oil as "100% Natural." But Wesson uses GMO ingredients, so that label is not quite true. A letter to one of any number of federal agencies might have solved that problem, but not so lucratively as a class action, so an enterprising lawyer got a class together, got it certified, and found an expert to opine that the "100% Natural" label was worth exactly $0.15 per bottle of Wesson, multiplied by 15 million potential class members (who would never all submit claims in any imaginable universe), totaling $67.5 million in liability.

The expert also opined, in a fit of ingenuity, that, by enjoining Wesson's further use of the "100% Natural" label, the class had received a benefit of $27 million. And another $11.5 million per year afterward.

The total value of these claims: over $100 million. For a label on a bottle of frying oil. A label that, in this case at least, was not alleged to have harmed a soul.

The attorneys got Wesson's owner, ConAgra, to agree to pay the 15 cents a bottle, but discounted by the fact that they'd only have to pay those class members who submitted a claim. A claim, mind you, on 15 cents a bottle. In addition to those 15-cent checks, ConAgra would also write a $6.85 million check to the class attorneys, which ConAgra agreed not to challenge in a "clear-sailing" provision of the settlement. ConAgra further agreed to a "kicker" – that if the court did not approve the $6.85 million to the class attorneys, ConAgra would get to keep it: in no event would it flow to the class.

Of the 15 million class members, only one objected. But he happened to be a law professor at the University of Chicago, M. Todd Henderson. Henderson thought this settlement, fattening up the attorneys rather more than Wesson oil had ever allegedly done, smacked of collusion.

The district court rejected Henderson's objections. The district court agreed the expert's opinions were a bit fanciful, but it could "help[] the Court develop its own view." And the injunction "adds at least some value" to the settlement, even if the expert's valuation was ridiculous. The court also thought the $6.85 million to the attorneys was reasonable given it represented a discount from the attorneys' claimed $11.5 million lodestar amount.

In short, the district court ruled the class ought to be happy that "defendant was willing to pay anything at all." And it was "not persuaded" there was collusion that caused the settlement to favor the attorneys over the class members.

The Trial Court Abused Its Discretion by Failing to Apply the Correct Legal Standard Concerning Class Action Settlement Approval, Which the Ninth Circuit Holds Requires the Courts to Scrutinize – Even Post-Class Certification Settlements.

Even though settlements are entitled to limited appellate review, “A [district] court abuses its discretion when it fails to apply the correct legal standard or bases its decision on unreasonable findings of fact.” Nachshin v. AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 2011). “ ‘To survive appellate review, the district court must show it has explored comprehensively all factors,’ and must give ‘a reasoned response’ to all non-frivolous objections.” Dennis v. Kellogg Co., 697 F.3d 858, 864 (citing Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 624 (9th Cir. 1982)).

Federal Rules of Civil Procedure rule 23(e) imposes on district courts an independent obligation to ensure that any class settlement is “fair, reasonable, and adequate,” accounting for the interests of absent class members. The courts have “an independent obligation to ensure that [any attorneys’ fee] award, like the settlement itself, is reasonable, even if the parties have already agreed to an amount.” In re Bluetooth Headset Products Liability Litigation, 654 F.3d 935, 941 (9th Cir. 2020).

Bluetooth involved a pre-class certification settlement. Cases have noted that the likelihood for collusive agreements by attorneys looking to turn a quick buck on a class action case is much greater pre-certification. But the Ninth Circuit held in Briseño that the courts must also scrutinize settlements after certification. "Nothing in the Rule's text suggests that this requirement applies only to pre-certification settlements," the court held. "And for good reason, too: The specter of collusion still casts a long shadow over post-class certification settlements when they involve divvying up funds between class members and class counsel."

A few choice comments:

"The parties crammed into their settlement agreement a bevy of questionable provisions that reeks of collusion at the expense of the class members."
"[T]he agreement raises a squadron of red flags billowing in the wind and begging for further review."
The court also reasoned that "class certification does not cleanse all sins," and citing a law review article, the court noted that “the profit motive will give class action lawyers incentives to do sneaky things, just like it gives businesses incentives to do sneaky things.”

In particular, in approving class settlements, courts must consider whether the attorneys receive "a disproportionate distribution of the settlement," whether there is a "clear sailing arrangement" in which the defendants agree not to challenge the fee award, and whether there is a "kicker" or "reverter" that provides that any of the agreed-upon fees that are not awarded by the court would be kept by the defendant, not the class.

As Judge Lee colorfully put it: "here, the parties did more than just check every Bluetooth box; their settlement presented a Murderers’ Row of provisions out of left field that seemingly favor class counsel and the defendant at the expense of the class members." To prevent this, the court held the district court "should give a hard look at the settlement agreement to ensure that the parties have not colluded at class members’ expense." (This commentator would prefer a more lawyerly standard than "give a hard look at," but we must work with what we are given.)

Failure to Quantify the Settlement Was Reversible Error:

The court also held the district court committed reversible error when it failed to attempt to quantify the value of the injunctive relief that was part of the settlement. Instead, the district court had simply concluded that it had "some" value. That does not work. A district court must either quantify and explain the value of injunctive relief or exclude it from calculations. Roes, 1–2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1055 (9th Cir. 2019).

The Ninth Circuit here went further to hold that the district court erred by placing even “some value” on the injunction "because it was, and is, virtually worthless." A district court abuses its discretion when it approves a settlement despite “no evidence that the relief afforded by [a] settlement has any value to the class members, yet to obtain it they had to relinquish their right to seek damages in any other class action.” Koby v. ARS Nat. Servs., Inc., 846 F.3d 1071, 1079 (9th Cir. 2017).

Judge Lee compared ConAgra's illusory promise not to put the "100% Natural" label on Wesson oil bottles – despite the fact ConAgra no longer owns Wesson – to "a proposal in the Final Rose ceremony on the Bachelor," or to a promise from George Lucas to make "no more mediocre and schlocky Star Wars sequels shortly after selling the franchise to Disney."

The court also takes a dim view of bright experts. According to the class expert, the settlement the attorneys struck was "is essentially minting money to the tune of eight figures each year." Somewhere along the way, the court held, credulity simply could not be sustained. "Here, the lawyers relied on an expert to provide a rosy number untethered to reality. Courts must “stamp [ ] out” such attempts."

Counsel: ...and plaintiff's ability to enforce recruh‘s closure and endangerment standards.
Judge Easterbrook: The plaintiffs ability to enforce what?
Counsel: Recruh's closure....
Judge Easterbrook: Could you use English words, please?
Counsel: Yes, Your Honor. The Resource Conservation and Recovery Act.
Judge Easterbrook: You will find that we are generalists rather than specialists, and using jargon works only with specialists. It does not take real well with generalists.

Takeaway: If there is anything in your oral argument that you would write in all caps, cut it out.

Link to oral argument: http://media.ca7.uscourts.gov/sound/external/ds.20-3434.20-3434_05_26_2021.mp3

Two recent appeals were dismissed because the entity defendants were not in good legal standing. One was crosswise with the taxing authorities. Another never formally organized. As a result, both their appeals were dismissed. (But the nonexistent entity gets the judgment against it vacated as part of the dismissal. How's that for failing upward?)

Appellants Not in Good Standing with the Taxing Authorities Will Have Their Appeals Dismissed:

An auto dealer sued to use a large electronic billboard in Long Beach in H.T.L. Properties, LLC v. Speck (D2d2 May 4, 2021) no. B299160 (non-pub.), but the dealer's claims were dismissed on summary judgment. The dealer appealed, but unfortunately for the dealer, it had some unpaid taxes and was not in good standing with the Franchise Tax Board. Appeal dismissed. (Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306.)

Nonexistent Entities Cannot Appeal, But Also Cannot Have Judgments Against Them:

An oil man named Dennis Mitchell opened a bank account under the name Dennis Mitchell Oil, even though no such entity existed. Some time later Dennis Mitchell Oil was sued (for unrelated reasons) and a judgment was entered against the nonexistent entity. The nonexistent entity appealed, and in Dennis Mitchell Oil v. Buehler Family Bakersfield, LLC (D5 Jun. 1, 2021) no. F074897 (non-pub.), the court dismissed the appeal.

"[A] judgment against a non-existent entity is a nullity." (Oliver v. Swiss Club Tell (1963) 222 Cal.App.2d 528, 537–538.) That defect is not subject to waiver because it is jurisdictional. (Id.) So the respondent was correct that the appeal must be dismissed.

But: the upshot is that dismissal here does not merely involve ceasing the appellate proceedings – it requires vacating the underlying trial court judgment for lack of jurisdiction. “ ‘When, as here, there is an appeal from a void judgment, the reviewing court's jurisdiction is limited to reversing the trial court's void acts.’ ” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 200.)

Held: the nonexistent entity's appeal was dismissed, but the judgment against it was also ordered vacated in the process.

So who is the prevailing party in that appeal, I would like to know? (The opinion is silent on the award of costs.)

Family court orders, such as domestic violence restraining orders, are often difficult to reverse because they are subject to a very deferential standard on appeal. A Court of Appeal will only reverse if it concludes the family court abused its discretion. But the abuse-of-discretion standard has limits. And when the family court misapplies the legal and evidentiary rules entirely, its rulings are entitled to no discretion at all.

That is what happened in Marriage of F.M. and M.M. (D1d1 May 28, 2021) no. A160669 (non-pub.). There, mother filed a domestic violence restraining order against father pending resolution of their dissolution proceedings and her request for child support of their six children all under the age of 13. The trial court issued a TRO based on mother's allegations that father had beaten her in the past and had threatened to kill her. Father denied the allegations, accusing mother of becoming belligerent when father asked for help to meet expenses.

The trial court ruled that although the parties "definitely need to stay away from each other," the court concluded "[t]hat doesn't mean that there needs to be domestic violence restraining orders." Instead, the court ordered mother to move out of the house (even though no one asked for that).

The court also categorically refused to consider mother's testimony that father had threatened violence after the TRO was issued. The court reasoned that evidence of any events that occurred after the DVRO request was filed was irrelevant. The court also rejected the testimony because there was not any "corroborating evidence," and that mother has the burden of proof.

Evidence Supporting a DVRO Need Not Be Limited to Pre-Petition Acts:

The First District Court of Appeal reversed. The court agreed with mother that “[n]othing in the plain language of the DVPA restricts courts when ruling on a DVRO request to hearing evidence of abuse that occurred only before the request was filed.” Nothing in the Domestic Violence Prevention Act (DVPA) or Family Code section 6300 requires "that the ‘past act or acts of abuse’ must have occurred only before the petitioner filed the request, or that a court is barred from considering any abuse occurring thereafter.” Evidence of postfiling abuse is also relevant, particularly after a TRO has been issued.

Besides, the trial court's application of this unsupported principle was arbitrary: when mother showed up at father's house without a police escort to collect her belongings, the trial court admonished her that that was not "good judgment" and the court would use that as a "factor" against her DVRO petition.

The trial court's categorical refusal to consider postfiling evidence of father's alleged abuse and violation of the TRO, based solely on the ground that the conduct had occurred after mother filed her DVRO application, was legal error and therefore constituted an abuse of the court's discretion. The court's evidentiary cut-off violated the DVPA's mandate that a court “shall” consider the “totality of the circumstances” in determining whether to issue a restraining order. (§ 6301, subd. (c) [“The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief.”]; see also § 6340, subd. (a)(1) [the court “shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought”].)

The court also concluded the error was prejudicial.

DVRO Petitioners Have No Heightened Evidentiary Burden Beyond "Reasonable Proof":

The trial court also erred in imposing a heightened standard for specificity. The DVPA does not impose a corroboration requirement. The petitioner need merely establish "reasonable proof of a past act or acts of abuse.” (§ 6300, subd. (a).) The DVPA also expressly provides that a court may issue a restraining order “based solely on the affidavit or testimony of the person requesting the restraining order.” (§ 6300, subd. (a).)

Although a trial court's credibility determination is rarely reversed, this one was. Of course, “[a] trier of fact is free to disbelieve a witness ... if there is any rational ground for doing so.” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) Here, the trial court did not indicate on the record that mother lacked credibility as a witness, and indeed, the court must have credited her testimony because it issued and reissued the TRO several times.

The Family Court Is Not Free to Fashion Lesser Remedies When a Restraining Order Is Warranted:

Finally, the court held it was an abuse of discretion for the court to deny the DVRO once it had determined that the parties needed to stay away from each other. (See Cueto v. Dozier (2015) 241 Cal.App.4th 550, 562 [“These comments [warning the respondent to stay away from the petitioner after denying her petition] suggest that the trial court believed there was a need to admonish [the respondent] from the bench that he must continue to stay away [from] and have no contact with [the petitioner], but without giving [the petitioner] the legal protection of a restraining order.”].)

Given the couple here have six children together, complete separation cannot be achieved simply by one of them changing residences. The court ordered that the trial court may not deny mother's petition for a restraining order simply on the basis that she no longer lives in the same residence with father.

And a Reversal Based on Curious Reasoning

Unpublished opinions usually are unpublished because they are uneventful. But sometimes, unpublished opinions are unpublished maybe, just maybe, because they contain reasoning that might not hold up to scrutiny.

In this case over misappropriation of trade secrets concerning computer chip used in truck engines, the jury found that, yes, the defendant had misappropriated by reverse engineering the plaintiff's algorithms. But the trial court thought differently. It granted a new trial, finding that, other than reverse engineering, the defendants had not been shown to have done anything wrongful.

Court of Appeal's Novel Reasoning Is Apparently Unsupported by Findings

The Second District Court of Appeal reversed in SoCal Diesel, Inc. v. Extrasensory Software, Inc. (D2d1 May 3, 2021) no. B290062 (non-pub.). Yes, it is true that under Civil Code section 3426.1, subdivision (a), “Reverse engineering or independent derivation alone shall not be considered improper means.” (Italics added.) That is, there has to be some other, independent act of wrongdoing. And here, there was apparently no finding of wrongdoing other than the reverse engineering. So the trial court correctly granted new trial overturning the misappropriation verdict.

But just a moment, reasoned the Court of Appeal. The algorithm was governed by a EULA. And the EULA prohibited reverse engineering. Thus, the court concluded, in a fit of creativity, "Reverse engineering accomplished by fraud is not reverse engineering alone. Entering into a EULA with the intention of violating its terms is fraud."

In fact, the Second District held the trial court abused its discretion in failing to deduce and agree with this inventive work product.

In defense of the trial court, I searched the rest of the opinion, and did not find any indication the jury had found the defendants engaged in promissory fraud. In fact, there was no indication this theory was even raised in the trial court, let alone that the jury made any findings on it one way or another. (The subject of the EULA did come up, but apparently the plaintiffs never elicited a direct answer to the question of whether it was even violated: the response elicited was simply that the EULA was never "enforced.")

While a reviewing court may take evidence and make findings in the first instance on appeal under Code of Civil Procedure section 909, I searched the opinion for any indication the court did so; I did not find any.

So there was no fraud finding below. And no fraud finding on appeal. Yet the court's holding is based on fraud.

How to explain this? Well, instead of any regular trial or appellate procedure that might have led to this particular holding, I found in the opinion this, the all-purpose procedural mechanism by which many appellate opinions arrive at similarly surprising reasoning. That mechanism is at follows: At the top of the opinion, the court causes to be displayed: "Not to Be Published in the Official Reports."

So if at oral argument your panel asks you how it can rely on a particular argument that was not raised below or in the briefs, the answer is: "In an unpublished opinion, your honor." That is the true answer, anyway. It is not the correct answer, obviously. But it is the true answer.

Calling Defendant a "Cheater" During Opening Statement and Closing Argument Is Not Misconduct

The defendants also argued that the plaintiff's attorney called them "cheaters" both during opening statements and closing arguments, and that this inflamed the jury against the defendants.

Not so. An attorney “ ‘may vigorously argue his case and is not limited to “Chesterfieldian politeness.” ’ ” (People v. Fields (1983) 35 Cal.3d 329, 363.)

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.

The Satanic Temple, miffed it was not selected to give the invocation at the local city council meeting, sued the City of Scottsdale for discrimination. At the two-day trial, the plaintiffs presented an as-applied discrimination theory, arguing city councilmembers were biased against the Prince of Darkness. Unpersuaded, the district judge found the plaintiffs failed to carry their burden.

The plaintiffs then filed a motion for supplemental and amended findings. In this posttrial motion, the plaintiffs asserted a facial-discrimination theory. The district court found this theory was waived because the plaintiffs had failed to include it in the pretrial order.

In Satanic Temple, Inc. v. City of Scottsdale, No. 20-15338 (9th Cir. May 19, 2021), the Ninth Circuit agreed the issues were waived. "Under Rule 16(e) of the Federal Rules of Civil Procedure, a pretrial order controls the course of the action, unless modified after a final pretrial conference to prevent manifest injustice. Fed. R. Civ. P. 16(e). We have held that “issues not preserved in the pretrial order have been eliminated from the action.” See S. Cal. Retail Clerks Union & Food Emps. Joint Pension Tr. Fund v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir. 1984) (citing United States v. Joyce, 511 F.2d 1127, 1130 n.1 (9th Cir. 1975))."

Of course, the district court would have been free to set aside the waiver in its discretion. But on appeal, the plaintiff-appellants failed to challenge the district court's refusal to so exercise its discretion. And the Ninth Circuit was not inclined to be the devil's advocate: “Our circuit has repeatedly admonished that we cannot ‘manufacture arguments for an appellant’ and therefore we will not consider any claims that were not actually argued in appellant's opening brief.” Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)).

The Devil also could not get a foothold when it came to the record. The court struck about 150 pages of the appellants' Excerpts of Record because they were made up of purported trial exhibits that were missing the clerk's exhibit cover sheets, and were not copies of actual trial exhibits, and also did not even correspond with the trial exhibit numbers. "This Court does not consider documents that were not filed with the district court. Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (internal citations omitted) (“Papers not filed with the district court or admitted into evidence by that court are not part of the clerk's record and cannot be part of the record on appeal.”)."

The court also found the district court did not abuse its discretion in excluding two city council member emails as hearsay, because those emails were not written in their official capacities, and the emails would not have changed the result anyway because there was no evidence the city manager who made the invocation decision ever saw those emails or spoke to those council members.

Affirmed.

Here is the video clip from episode 11 of Tim's podcast, the California Appellate Law Podcast, discussing this issue.

Appeals are rarely dismissed because of defects in the notice of appeal. But rare is not the same as never.

In prior posts (most recently here), we have discussed the liberal treatment of notices of appeal. But you are hereby warned of an important limitation to that rule, at least in appeals from orders denying petitions to compel arbitration where preference has been ordered. In such cases, the notice of appeal must state it is governed by Code of Civil Procedure section 1294, and must attach the preference order and the order being appealed.

In Avery v. All Saintsidence OPCO, LLC (D1d3 May 24, 2021) A162589, an an elderly man, appearing through a guardian, sued All Saints for elder abuse and neglect under Welfare and Institutions Code sections 15600 et seq. The elderly plaintiff had less than six months to live. The trial court granted preference under Code of Civil Procedure section 36.

All Saints petitioned to compel arbitration, but the petition was denied. The trial court noted All Saints had delayed in seeking arbitration, a delay made all the more significant given plaintiff's grim prognosis of death within six months. All Saints appealed.

The clerk took more than three weeks to file the notice of appeal. The next day, the plaintiff moved to dismiss the appeal. And the court granted it.

The Notice of Appeal of Arbitration Denials Must Comply With Special Rules in Cases Entitled to Preference:

An order denying arbitration is an appealable order under Code of Civil Procedure section 1294(a). But section 1294.4 provides for a special "limited expedited appeal process" where the appeal involves elder abuse claims where the elder has been granted preference. Specifically, the appeal must be decided no more than 100 days after the notice of appeal is filed.

Special Rules of Court, rules 8.710 through 8.717, were designed to implement this expedited appellate procedure.

Time to Appeal: Rule 8.712(b) only gives the appellant 20 days to file a notice of appeal, starting from the date a notice of entry or file-stamped copy of the order is served. (No mention is made in the rule for the deadline in cases where no notice of entry or file-stamped order is served. One wonders if the backstop 180-day deadline under rule 8.104 applies? But this seems to defy the purpose of the expedited appeal rules.)

Notice of Appeal: Rule 8.712(a) requires the notice of appeal must state that the order appealed "is governed by the rules in this chapter," and must attach copies of the order being appealed and the order granting preference. (These rules are different from the rules governing ordinary notices of appeal, which do not require anything more than identifying the appellant and the order being appealed. No authorities need be provided, and no documents need be attached.)

Record on Appeal: Clerk's transcripts are too slow. Parties often wait months before a clerk's transcript is prepared. So in appeals of arbitration denials in preference cases, this method of record preparation is not available. You must use an appendix under rule 8.124 (either joint or separate). (Rule 8.713.)

Reporter's Transcript: Normally you have 10 days to designate. Under the expedited rules, you must file your designation along with the notice of appeal. (If you fail, you get a notice of default giving you two days to get it done.) Then, the trial court will notify the court reporter. (But who knows how long this will take?) Then, the court reporter has 10 days to prepare and certify the transcript. (Rule 8.713.)

Opening Brief: Appellant's opening brief is due 10 days after the notice of appeal is filed. What happens if the transcript is not done by then? You must timely file the brief without citations to the transcript. Then, once you get the transcript, you have 10 days to file an amended brief that adds the citations. (Rule 8.715.)

The Rule of Liberal Construction of Notices of Appeal Does Not Apply:

The appellant in All Saints was unaware any of these rules applied. The appellant's notice of appeal did not state it was subject to the expedited rules, and did not attach the order granting preference. The court held this was enough to dismiss the appeal.

The appellant argued these defects were "hyper-technical" and the liberal rule of construction should save the notice of appeal. The court disagreed. "The content requirements in this rule are meant to put the parties and the reviewing court on notice that an appeal on a very expedited timeline has been filed and to facilitate the expedited appeal process." The appellant's failure to comply with them led to "a breakdown in the expedited appeal process in a case involving a plaintiff with a very poor prognosis, and substantial erosion of the 100 day period that this court has to issue a decision in this appeal."

The appellant tried to put the blame on the court clerk for waiting over three weeks to file the notice of appeal. (In this, the appellant has my sympathies. I have waited this long, and much longer, for clerks to file my notices of appeal.) But the court implies that this delay owed to the defects in the notice of appeal – the suggestion being that the filing clerks will perk up when they see the words "Appeal governed by Rules of Court rules 8.710 through 8.717," and spring into action. Perhaps this is true. I would be curious to find out.

Appeal May Have Been Dismissed for Failing to File a Timely Opening Brief:While the court dismissed on the grounds of defects in the notice of appeal, the court also noted appellant had failed to timely file its opening brief. But presumably the court did not explore this further as a ground for dismissing the appeal because rule 8.715(d) requires the appellant first be given a notice of default before dismissing an appeal on this ground.

Be Wary of Special Appellate Rules in Limited Civil Cases:

There are special rules applicable in limited civil appeals as well. (See rules 8.820 through 8.845.) This office successfully moved to dismiss a limited civil appeal recently on the grounds that, while the notice of appeal was timely filed according to the rules governing unlimited civil appeals, the times governing limited civil appeals are cut in half. Held: the appeal was dismissed as untimely.

The plaintiffs in Aghaian v. Minassian (D2d8 May 24, 2021) no. B296287 are children of Iranians who fled during the Iranian Revolution. Their parents had amassed a large amount of property, and had asked the defendant, a family friend, to recover it for them. Turns out the defendant used the opportunity to enrichment himself by some $34 million. So the children sued.

The defendant moved to dismiss based on inconvenient forum. The defendant argued the courts in a foreign jurisdiction would be more suitable because the dispute was between citizens of that foreign jurisdiction, concerned property in that jurisdiction, and related to litigation that had already progressed in that jurisdiction. All good arguments, the trial court agreed, and granted the motion.

Did we forget to mention the foreign jurisdiction in question was Iran? Well, it was Iran. The Court of Appeal did not overlook that detail. The court held that, where it comes to forum selection, jurisdictions are not treated equally that do not treat equally. As for Iran, specifically, the "evidence is overwhelming that Iranian courts discriminate against women and non-Muslims." So Iran is not a suitable forum as a matter of law, no matter how much sense it otherwise makes to litigate there.

But by the time the case came back down, the plaintiffs had filed a new action against the defendant in – you are not going to believe this – Iran. The defendant filed a new motion for inconvenient forum on that basis, arguing the plaintiffs, having recently availed themselves of the laws of Iran, had waived their objections to venue in Iran. The trial court denied the defendant's motion.

This time, the case proceeded to trial, where the plaintiffs obtained a judgment of $34 million against the defendant. The defendant appealed, arguing that the case should have been tried in – you guessed it – Iran.

Orders Denying Motions to Stay or Dismiss on Inconvenient Forum Grounds May Be Appealed After a Final Judgment:

The plaintiffs argued the defendant should have sought review of the order denying his motion for inconvenient forum by way of a writ petition, and thus his appeal of that motion from the final judgment is untimely. A motion based on inconvenient forum is similar to a motion to quash for lack of personal jurisdiction, the plaintiffs argued, and the latter motion may only be challenged by writ petition. (State Farm General Ins. Co. v. JT's Frames, Inc. (2010) 181 Cal.App.4th 429, 437.) And in fact, the same statute that provides writ review of orders denying motions to quash, Code of Civil Procedure 418.10, also provides for writ review of orders denying motions based on inconvenient forum. The same rule should obtain for motions based on inconvenient forum, the plaintiffs concluded.

The court disagreed. A motion to quash for lack of personal jurisdiction raises jurisdictional questions, which much be raised at the outset of the case. A motion based on inconvenient forum does not carry the same jurisdictional urgency.

"Accordingly, we follow the general rule that an interlocutory order—in this case, the order denying [defendant's] renewed inconvenient forum motion—may be challenged on appeal of the final judgment."

The Law-of-the-Case Doctrine Applies Even Where the Finding Previously Established Is Allegedly Waived:

The court held that it had already found in the prior appeal, rather conclusively actually, that Iran was not a suitable forum "as a matter of law." Under the doctrine of law of the case, that concludes the matter. “ ‘The doctrine of “law of the case” deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) The doctrine “precludes a party from obtaining appellate review of the same issue more than once in a single action.” (Katz v. Los Gatos–Saratoga Joint Union High School Dist. (2004) 117 Cal.App.4th 47, 62.)

Ok, so the plaintiffs cannot be made to litigate in Iran if they object to the forum. Fine, says the defendant. But now the plaintiffs are happily litigating other claims in Iran. So they have waived their objections to litigating in Iran, right?

The court rejected the defendant's waiver argument, but could not muster very strong reasons for it. The defendant had failed to provide authority for the proposition, the court pointed out. Then again, perhaps the question, a rather unusual question at that, was one of first impression? The court also said that just because the plaintiffs are litigating in Iran does not mean it is a suitable forum. But that is not quite the argument, is it? The argument is not that the plaintiffs' choosing to litigate in Iran makes Iran suitable, but rather that the plaintiffs should be deemed to have withdrawn their objections to Iran's unsuitability. (I don't know that the defendant's argument carries the day, but the court's treatment of it is unsatisfying.)

But, thin as the analysis is, Aghaian v. Minassian stands for the rule that a finding falling under the law of the case doctrine cannot be waived.

And it would have been entitled to it, too, and the appellant not stipulated to the remedy.

Here is an under-appreciated consideration in appellate procedure: If you are the party that prevailed at trial, and you collect on your judgment pending appeal, what's the worst that could happen? Would it surprise you to learn that the prevailing plaintiff could be ordered to make restitution "of all property and rights lost by the erroneous judgment or order," and could even have a money judgment imposed against it under Code of Civil Procedure section 908? This includes legal interest. And if enforcing the judgment caused the appellant to lose business profits, the judgment creditor can be liable for those losses, too.

That is very nearly what happened to the respondent in Dr. Leevil, LLC v. Westlake Health Care Ctr. (D2d6 Mar. 17, 2021) no. B304339 (non-pub.). In this high-stakes unlawful-detainer case, the landlord foreclosed on a deed of trust to acquire the tenant medical facility's building from its owner, and decided to evict the tenant. The tenant stood on its lease, but the trial court ruled the lease was subordinate to the landlord's deed of trust and was extinguished by the trustee's sale.

But the tenant had a narrower, and stronger, defense: the landlord's service of the notice to quit was defective because the landlord served the notice before the landlord's title was perfected. This requirement must be strictly followed.

For some reason, however, the tenant withdrew this valid defense.

Ultimately, after the Court of Appeal affirmed the judgment against the tenant, the Supreme Court granted review on the very issue the tenant had withdrawn, and concluded the landlord's notice to quit was invalid.

In the meantime, however, the tenant had lost $5.7 million in profits after losing its facility.

The tenant having ultimately prevailed on appeal (despite having withdrawn the winning issue), the tenant moved for restitution against the landlord for the $5.7 million in lost profits. The trial court was incredulous. It did not think a prevailing plaintiff could be liable for enforcing a judgment, especially when the judgment was based on a point of law the Court of Appeal had affirmed (even if it was later reversed). So the trial court denied the tenant's motion on law-of-the-case grounds.

Yes, a Judgment Creditor Is Liable When It Enforces a Judgment That Is Later Reversed:

While the Court of Appeal affirmed, it did so only on the basis of the tenant's stipulation and voluntary relinquishment of possession. None of the other stuff the trial court suggested about a prevailing plaintiff's not being liable for enforcing a later-reversed judgment was true: a judgment-creditor absolutely can be liable in restitution to the judgment-debtor.

If an appellate court reverses a judgment or order, it may "order restitution on reasonable terms and conditions of all property and rights lost by the erroneous judgment or order . . . and may direct the entry of a money judgment sufficient to compensate for property or rights not restored." (Code Civ. Proc., § 908.) But "[e]ven if the reviewing court has not ordered restitution, the trial court whose order or judgment has been reversed on appeal has the inherent authority to afford restitutionary relief." (Beach Break Equities, LLC v. Lowell (2016) 6 Cal.App.5th 847, 852 (Beach Break).) This authority includes "the award of profits of business conducted on [property] taken from tenant following incorrect initial judgment." (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 662 (Munoz).) "'"The fundamental rule guiding the court in such proceedings is, so far as possible, to place the parties in as favorable a position as they could have been in had the judgments not been enforced pending appeal." [Citation.]' [Citation.]" (Beach Break, at p. 852, alterations omitted.)

The successful appellant may even be entitled to an award of interest on money paid on a judgment reversed on appeal. An interest award routinely is part of restitution following the reversal of a money judgment unless such an award would be inequitable under the circumstances. (Textron Financial Corp. v. National Union Fire Ins. Co. (2004) 118 Cal.App.4th 1061, 1085 (Textron), disapproved on other grounds in Zhang v. Superior Court (2013) 57 Cal.4th 364, 377-379.) Courts "generally reason[] that []payment of interest is appropriate because a plaintiff who collects his judgment pending appeal assumes the risk that it may have to repay the award, along with interest, if the defendant prevails in that appeal. [Citations.]" (Gunderson v. Wall (2011) 196 Cal.App.4th 1060, 1066-1067.)

Restitution is "a matter of a right if the judgment is reversed or set aside, unless [it] would be inequitable." (Beach Break, supra, 6 Cal.App.5th at pp. 852-853.) "Whether a party is entitled to restitution following reversal [thus] presents a question calling for judicial discretion." (Id. at p. 853.)

So the landlord, as the prevailing plaintiff who had enforced its judgment, might be liable for restitutionary damages following reversal on appeal.

Beware: Stipulations and Voluntary Assent to a Judgment May Waive Important Rights on Appeal:

As mentioned in previous cases (see here and here; but see here), stipulations can be fatal to appellate rights. That was the case here.

The court noted that the successful tenant-appellant's claim for restitution was premised on its loss of possession of its facility. But despite the landlord's legal action, the tenant had continued to occupy the facility as a holdover. It could have continued doing so, presumably until the sheriff arrived. It was only when the tenant "voluntarily" gave up possession that it lost profits.

Observing that a stipulation is binding (Code Civ. Proc., § 664.6, subd. (a)) and that a party that "consents to an act is not wronged by it" (Civ. Code, § 3515), the court held that a restitution award in these circumstances would be inequitable.

The upshot: The consequences of an appellant's voluntary action, pursuant to a stipulation, cannot be laid at the feet of the respondent. If you agree to comply with a judgment, be sure to make a clear record that you are doing so because of threatened and imminent judgment enforcement.

In case you think me a Cassandra with my frequent warnings about losing your appeals to technicalities, I have three Court of Appeal opinions from just this week to buck you up. All three opinions promise that, no, the Court of Appeal is not looking for picayune errors in your notice of appeal for an excuse to dismiss your appeal.

Also below: A call to colleagues to consider discontinue using the Judicial Council form Notice of Appeal.

Failing to Identify the Appellant in the Notice of Appeal May Not Be Fatal:

Two separate recent opinions find notices of appeal that omit the basic detail of identifying the appellant. Yesterday we covered Westlake Village Marketplace, LLC v. West American Roofing, Inc. (D2d5 May 17, 2021) no. B306358 (non-pub.). And now another Second District Court of Appeal opinion in Bou v. Velasquez (D2d3 May 18, 2021) no. B294094 (non-pub.) finds the same problem. In both cases, a notice of appeal was filed, but failed to list the appellant. In Westlake, an individual sought to appeal from an order finding him an alter-ego of the corporate defendant, but the notice of appeal was filed only by the corporation. In Bou, husband and wife, in pro per, filed an appeal from an order of dismissal following demurrer, but only the husband's name was on the notice of appeal.

Both cases followed last year's California Supreme Court decision of K.J. v. Los Angeles Unified School Dist. (Cal. Jan. 30, 2020) 8 Cal.5th 875 (we discussed K.J. previously here), where an attorney appealed a sanctions order against him, but his notice of appeal identified his client as the appellant, not himself. The Supreme Court concluded “that a reviewing court must construe a notice of appeal from a sanctions order to include an omitted attorney when it is reasonably clear that the attorney intended to join in the appeal, and respondent was not misled or prejudiced by the omission.” (Id. at p. 885.) Both Westlake and Bou concluded that, following K.J., the defects in the notices of appeal were not fatal because the identity of the intended appellants was reasonably clear, and the respondents were not prejudiced or misled in any way.

(Note: Not long before K.J. I successfully moved to dismiss an appeal situated not unlike K.J., relying on the requirement that the appellant be legally “aggrieved.” (Code Civ. Proc., § 902; El Dorado Irrigation Dist. v. State Water Resources Control Bd. (2006) 142 Cal.App.4th 937, 977.) The appellant there, however, argued that the client was aggrieved by the sanctions order against her attorney. The appellant did not argue that the notice of appeal was mistaken, and that the intended appellant was, in fact, the attorney. The lesson: If you make a mistake, the best course may be to confess the error, argue no prejudice occurred, and pray for forgiveness.)

There Is No Need to List Prior Intermediate Orders in the Notice of Appeal:

In another case that illustrates how the Judicial Council form Notice of Appeal can cause heartburn, Clark v. City of Ontario (D4d2 May 17, 2021) no. E073663 (non-pub.) finds an appellant whose case was disposed of in two parts. First, several of his claims were disposed of via demurrer. Then the rest by summary judgment.

The appellant used the Judicial Council form Notice of Appeal to appeal the summary judgment, checking the boxes to describe the order appealed from as a "judgment after an order granting a summary judgment motion" and a "final judgment." So far, so good.

But what if, the appellant fretted, the Court of Appeal thinks my box-checking inadequate? Some of my claims were disposed of via demurrer, after all. And look! There is another box – left unchecked! – for "judgment of dismissal after an order sustaining demurrer." That kind of sounds like me. Maybe I should, just to be safe, file an amended notice of appeal?

So he did. And respondent pounced. A-ha! the respondent argued. The amended notice of appeal was filed after the deadline to appeal. The appeal is untimely!

Held: Give me a break. The appellant timely filed his notice of appeal. It said it was from a final judgment. The end.

Yes, the court observed, the appellant then also filed an "amended" notice of appeal listing the order partially sustaining a demurrer, but that kind of order most certainly is not appealable. An order that is not appealable does not require a notice of appeal. The appellant, the court put it, "was not required to specify any intermediate orders that he intended to challenge, any more than he was required to specify the issues he intended to raise."

A Suggestion to Colleagues:

May I take this opportunity to suggest that my colleagues consider discontinue using the Judicial Council form Notice of Appeal? The rule of liberality requires the courts to construe your notice of appeal broadly. The Judicial Council form invites you to give the courts reason to construe it narrowly. (The rule of liberality does not apply if there is evidence of a different intent on the part of the appellant.) The additional information the form calls for is entirely unnecessary, as I have explained previously here and here. It is an optional form, not a mandatory form.

I do not know why anyone would opt to use it. There is no reason I can think of to give the court, or your adversary, the invitation to interpret your tickmarks, or absence of tickmarks, on boxes that are unnecessary in the first place. Just identify the appealable order or orders from which you are appealing – and, might I suggest, also identify the correct appellants? – and you are done.