It is a horrifying thing to find that your appeal has been dismissed. And it can happen very easily. An appeal can be dismissed because the notice of appeal was filed late – even a day late. Or because the notice of appeal had the wrong box checked on it specifying the wrong type of order (even though specifying the type of order is not even required), or because the notice of appeal specified the wrong authority (which is not required, either).
So what about a notice of appeal that omits the name of the appellant? That is what happened in Westlake Village Marketplace, LLC v. West American Roofing, Inc. (D2d5 May 17, 2021) no. B306358 (non-pub.). Miraculously, that appeal, from the alter-ego judgment, survived. (But the judgment was affirmed.)
In Westlake, the plaintiff got a judgment against a roof-repair company for about $100,000 including fees and costs. A year later, the plaintiff moved under Code of Civil Procedure section 187 to add the defendant-company's president as an alter-ego debtor. Both the company and the president opposed the motion. But when the trial court granted the motion, only the company appealed.
Defect in the Notice of Appeal Was Not Fatal:
The Second District Court of Appeal held the failure to name the correct appellant on the notice of appeal was not fatal to the appeal. As Westlake reminds, if you find yourself with an imperfect notice of appeal, have the California Supreme Court's January 2020 opinion in K.J. v. Los Angeles Unified School Dist. (Cal. Jan. 30, 2020) 8 Cal.5th 875 ready to hand (we discussed K.J. previously here). K.J. held that an appeal from an attorney-sanctions order should not be dismissed even though the notice of appeal named the attorney's client only and not the attorney, because the identity of the intended appellant was "reasonably clear" and the respondent "was not misled or prejudiced."
Another good quote from the Supreme Court in K.J.: “While the timely filing of a notice of appeal is an absolute jurisdictional prerequisite [citation], technical accuracy in the contents of the notice is not.” (K.J., at pp. 882–883, fn. omitted.)
Here, the only order challenged was the one that added the alter-ego defendant to the judgment. The alter ego was named on the designation of record a few days later. So the respondent could not have been misled or prejudiced by the defect in the notice of appeal.
Tactical Decisions in Alter Ego Liability:
The court affirmed the trial court's post-judgment order finding alter-ego liability. The alter-ego argued the plaintiff had unduly delayed in seeking to establish alter-ego liability and should have established it at trial. Not so, the court observed. In Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, the Second District Court of Appeal reversed an order denying alter-ego liability on that very ground. Greenspan held alter-ego liability is an issue that more naturally arises during postjudgment enforcement, and that requiring plaintiffs to anticipate alter-ego liability in pre-trial litigation "would promote a fishing expedition into alter ego evidence before the plaintiff obtained a favorable judgment."
This raises a tactical choice for plaintiffs: whether "it may be prudent for a plaintiff to sue only the corporation," leaving the alter egos for postjudgment litigation.
The Fourth District, Division Three suggested the same strategy in Burkhalter Kessler Clement & George LLP v. Hamilton (2018) 19 Cal.App.5th 38, 46 n.2, noting plaintiffs may benefit by avoiding exposure to large prevailing party attorney fee awards in the event pretrial alter-ego litigation should prove unsuccessful:
"This case raises an interesting tactical issue: whether a plaintiff should plead an alter ego defendant in the initial complaint (and risk a dismissal with prejudice and possible payment of attorney fees); or should a plaintiff hold off and later seek to amend a prevailing judgment. (See Misik v. D'Arco (2011) 197 Cal.App.4th 1065, 1074 [the failure to allege an alter ego "does not preclude a motion to amend the judgment"]; Code Civ. Proc., § 187.) We take no position on the tactical choice, though we do recollect Ralph Waldo Emerson's cautionary note that: "When you strike at a king, you must kill him." (Bartlett, Familiar Quotations (16th ed. 1992) p. 433.)"
If alter ego liability is uncertain, it may safely be left to postjudgment motion practice.
One thing about appeals that can potentially can be deceptive is the record on appeal. When you appeal, all your evidence goes in the record. That means the Court of Appeal will consider all your evidence, right?
Not necessarily, as the appellant learned in Epstein v. Prescott Neighborhood Partners, LLC (D1d1 May 13, 2021) no. A159185 (non-pub.). The trial court dismissed the plaintiff's complaint on an anti-SLAPP motion under Code of Civil Procedure section 425.16. The trial court also refused to admit the plaintiff's evidence in opposition to the motion.
On appeal, the plaintiff argued his evidence clearly met the "minimal merit" threshold for the second prong of the anti-SLAPP analysis. (The first prong was met easily because the plaintiff's complaint alleged the defendants had engaged in fraud two years prior by obtaining a judgment for quiet title to a parcel of property in Oakland.)
But the plaintiff failed to challenge the trial court's evidentiary rulings refusing to admit his evidence. "As a result," the court held, "we can consider only the admitted evidence, and plaintiffs have forfeited any argument that the evidence they unsuccessfully sought to introduce established a probability that their claims would succeed. (See Behr v. Redmond (2011) 193 Cal.App.4th 517, 538 [failure to brief issue on appeal waives it].)"
At oral argument, counsel urged that the court ought to consider the evidence in light of its de novo review of anti-SLAPP rulings. The court rejected this argument. Raising the issue at oral argument is too late. If not raised in the briefing, the argument is forfeited.
(The court does not say so, but the plaintiff's argument was also incorrect on the law. Evidentiary rulings on anti-SLAPP motions are reviewed for abuse of discretion. (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1061.))
The court also rejected the plaintiff's other arguments (without describing them) for failing to raise them in the trial court, citing In re S.B. (2004) 32 Cal.4th 1287, 1293 [parties forfeit arguments not raised in the trial court]; Hansen v. Department of Corrections & Rehabilitation, supra, 171 Cal.App.4th at p. 1547 [plaintiff cannot defeat an anti-SLAPP motion by raising new allegations and claims].)
"It has long been deemed improper to raise new points at oral argument, and such questions will ordinarily not be considered. [Citations.]" (People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 68.)
The Upshot: Do not overlook your evidence on appeal. Just because it is in the appellate record does not meant it is in the evidentiary record.
Here is the video clip from episode 11 of Tim's podcast, the California Appellate Law Podcast, discussing this issue.
The judgment-enforcement case of R Consulting & Sales, Inc. v. Kim (D4d1 May 13, 2021) (non-pub.) provides several useful lessons. For attorneys representing judgment-creditors, the case provides an interesting application of a wage garnishment against a debtor's sham companies. For appellants, it provides a caution in careful drafting of the notice of appeal, and a warning that post-judgment stipulations may be deemed as an assent to the judgment – thus waiving the right to appeal.
It also suggests how new legal theories – which sometimes may be raised for the first time on appeal – will be deemed forfeited if they involve a factual question that was not raised in the trial court.
Finally, it reminds attorneys for prevailing parties to be judicious in their use of redacted billings, and to avoid block-billing.
R Consulting gives us a rather unsympathetic appellant-debtor. The debtor operated a number of sham entities, and rented a private jet from the owner. And what good, one wants to know, is a private jet without pilots and attendants and a fully-stocked cabin? So the debtor hired these and other suchlike, who, when the debtor did not pay the bill, placed liens on the jet to the tune of $2.4 million.
Not liking how this was unfolding very much, the owner sued and asked the debtor for supporting documents for the fees he'd run up. At which point the debtor sabotaged the computers that held the information. The court granted terminating sanctions and entered a default judgment for $2.4 million.
Already you might be getting the feeling this is not the type of debtor who is going to just write you a check. The owner had that feeling too and so began judgment enforcement. Sure enough, the owner was getting dubious answers during the debtor-examination in which the debtor admitted, yes, he was the vice-president of one of his sham companies, but no, he did not know who the president was. And who was paying the $14,000 monthly rent for his Los Angeles house? The debtor was sure he didn't know, but it was probably his mom. And no, he didn't know how much the rent was, either. Yet when the owner got his hands on a rent check, it bore the debtor's signature.
Wage Garnishment Order Against the Debtor Directly:
Believing it futile to get wage garnishment orders against sham entities, the owner got creative and sought a turnover and assignment order against the debtor himself. The court found that it had authority to require the debtor to assign 25 percent of his disposable earnings under Code of Civil Procedure sections 187 and 708.510.
After mulling it over for a year-and-a-half what to do about this turnover and assignment problem, the debtor got the idea to argue that, now that he is spending so much of his time abroad in South Korea, maybe the California order violates some kind of international law?
The trial court rejected the argument. The court also granted the owner's motion for attorney fees for enforcing the judgment of nearly $400,000, which included many block-billed hours, and entries redacted without explanation. The debtor appealed.
Defective Notice of Appeal Held Not Fatal:
When the debtor filed his notice of appeal, it stated he was appealing from the order entered August 30, 2019. But there was no such order. The order was dated August 28. A-ha! the owner argued. The appeal should be dismissed!
Possibly, but what saved the debtor here was that he had attached the August 28 order to his notice of appeal. As we have covered previously, all that is required in a notice of appeal is that it be served and filed in the superior court (CRC 8.100(a)(1)); signed (CRC 8.100(a)(1)); and identify the judgment or order being appealed. (CRC 8.100(a)(2).) Here, although the debtor did misidentify the order in the notice, he did attach the order being appealed. That was enough to put the respondent owner on notice of what was being appealed. The respondent was not misled by the erroneous date on the notice itself.
“Rule 8.100(a)(2)'s liberal construction requirement reflects the long-standing ‘ “law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.” ’ (In re Joshua S. (2007) 41 Cal.4th 261, 272; see Luz v. Lopes (1960) 55 Cal.2d 54, 59.) The rule is intended to ‘implement the strong public policy favoring the hearing of appeals on the merits.’ ” (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882 (K.J.).).” ’ (In re Joshua S. (2007) 41 Cal.4th 261, 272; see Luz v. Lopes (1960) 55 Cal.2d 54, 59.) The rule is intended to ‘implement the strong public policy favoring the hearing of appeals on the merits.’ ” (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882 (K.J.).)
Judging by the appellant's conduct here, the policy applies quite irrespective of the appellant's merit.
The Appellant-Debtor's Wage-Garnishment Legal Contentions Deemed Forfeited by Not Raising Them in the Trial Court:
The debtor argued on appeal that the wage-garnishment order, made via the unusual mechanism of a turnover and assignment order here, was not supported under the Enforcement of Judgments Law. The debtor made nice legal arguments on appeal to this effect, on the premise that he was merely an employee of his companies, and because a garnishment order must be directed at the employer, the order was unlawful. (Code Civ. Proc., § 706.011(b).)
But the reason this nice legal argument didn't work is because it is really not a legal argument but a factual argument. Or at least a mixed question of law and fact. Specifically, the fact question is whether the debtor's companies were shams. And if he really controlled the companies then he, the debtor, was the employer. And so the garnishment order was properly issued against him.
Holding this to be primarily a factual question, the Court of Appeal held it was forfeited by debtor's not having asserted it earlier. While pure legal theories in some circumstances may be asserted for the first time on appeal, factual theories must be raised in the trial court. (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997 (Nellie Gail) [noting as a “ ‘general rule, theories not raised in the trial court cannot be asserted for the first time on appeal’ ”]; JRS Products, Inc. v. Matsushita Elec. Corp. of America (2004) 115 Cal.App.4th 168, 178 (JRS Products) [recognizing that courts of review “are loath to reverse a judgment [or order] on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider”].) The forfeiture rule prevails when the new claim involves a mixed question of law and fact. (Panopulos v. Maderis (1956) 47 Cal.2d 337, 341 (Panopulos).)
The debtor's theory here should have been raised in the trial court, and not for the first time on appeal. (See Nellie Gail, supra, 4 Cal.App.5th at p. 997 [“ ‘theories not raised in the trial court cannot be asserted for the first time on appeal’ ”]; JRS Products, supra, 115 Cal.App.4th at p. 178 [courts of review are reluctant to reverse an order or judgment on grounds not briefed by the parties in, or considered by, the trial court].)
The Appellant-Debtor's Initial Stipulation and Subsequent Conduct Was Deemed an Assent to the Order, and Thus a Waiver of the Right to Challenge It on Appeal:
The appellant originally agreed to stipulate to the wage-garnishment/turnover/assignment order, even though he ultimately refused to sign the stipulation. Then for several months, the appellant complied with that order. Later, he appealed it.
The court deemed this to be a waiver. (See Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1713 (Metalclad) [recognizing the rule that an “ ‘estoppel precludes a party from asserting rights “he otherwise would have had against another” when his own conduct renders assertion of those rights contrary to equity’”].)
Caution: I found this a surprising part of the opinion. Apparently, the court anticipated this, holding it was appropriate "under the unique circumstances of this case." But it still provides a caution: Be very wary when complying with a judgment or order if you intend to appeal. Any compliance, or accommodation, or compromise, or stipulation, could be argued as a waiver and estoppel of your right to appeal.
Award of Unexplicably Redacted Fees Reversed:
The Court of Appeal reversed and remanded the fee award. The owner's attorneys failed to offer any "preliminary or foundational showing" by which the court could determine the propriety of fees whose descriptions were redacted. (Coito v. Superior Court (2012) 54 Cal.4th 480, 502 (Coito).)
As for block-billed fees, the court reversed where there was no showing of entitlement for block-billed fees that were "so heavily or completely redacted it was not possible to determine the work done by counsel and thus, whether such work was compensable."
One of the most effective pieces in winning an appeal is issue selection. Most attorneys know, for example, that "de novo" issues are best on appeal: the Court of Appeal will not pay any deference to a trial court on issues of law.
And most attorneys also know that "abuse of discretion" issues are lousy on appeal. That is because the Court of Appeal will pay great deference to a trial judge's discretionary decisions.
But there is a significant minority of discretionary cases where the trial court so botches its analysis, or misunderstands the law, that the Court of Appeal will pay its orders no deference at all. Instead, on appeal the court will conclude that the trial court failed to exercise discretion. And a failure to exercise discretion is an abuse of discretion.
That is what happened in Southern Cal. School of Theology v. Claremont Graduate Univ. (D2d1 May 3, 2021) no. B302452 (non-pub.). The underlying dispute is not as interesting as the case title suggests. The graduate school sued the theology school over a property agreement and lost, and the theology school claimed nearly $1 million in contractual attorney fees.
Hold on, the graduate school argued. Reminding the theologians that the law takes a sola scriptura view that fees have to arise out of the contract with the fee provision, the graduates noted that at least half that $1 million price tag was for claims that had nothing to do with the contract. And besides, the graduate school went on, the theologians engaged in the unpardonable sin of block billing. At most, the graduates argued, the court should award the theologians only about $50,000 of the $1 million they claimed.
While the trial court agreed to cut the half of the fees from non-contract claims, the court said it was without authority to apply the graduates' proposed "negative multiplier" to cut block-billed fees.
Failure to Exercise Discretion Is an Abuse of Discretion:
The Second District Court of Appeal reversed. While a trial court has broad discretion to set the amount of reasonable attorney fees, the decision must be based in law. "Although this standard is deferential, a court abuses its discretion 'where no reasonable basis for the action is shown.' " (Bui v. Nguyen (2014) 230 Cal.App.4th 1357, 1367.)
Here, the trial court's award was based on an assumption that the law does not permit the court to reduce fees for block-billing. But that is incorrect. "The court also may properly reduce compensation on account of any failure to maintain appropriate time records." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) This applies specifically to block-billing: the court may "assig[n] a reasonable percentage to [time] entries, or simply cast them aside." (Citing Bell v. Vista Unified Sch. Dist. (2000) 82 Cal.App.4th 672, 689 (Bell).)
(In fact, a court is even authorized to deny fees in their entirety if it concludes the block-billing abuse is particularly egregious. As Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1329 put it: "Similarly, counsel may not submit a plethora of noncompensable, vague, blockbilled attorney time entries and expect particularized, individual deletions as the only consequence. The trial court could reasonably conclude counsel made no effort to prune the fee request to comply with the law. Counsel erred grievously by attempting to transfer that responsibility onto the trial court. The trial court could reasonably conclude counsel's disregard for the law undercut the credibility of their fee request and, as officers of the court, warranted a severe reaction." )
"[I]t is an abuse of discretion to apply the 'wrong legal standard.' " (Walker v. Ticor Title Co. of California (2012) 204 Cal.App.4th 363, 370 (Walker).) As the court concluded here: "We find no abuse in the trial court's exercise of its discretion as far as it exercised that discretion. It appears to us, however, that because the trial court believed itself to be without authority to apply a negative multiplier to reduce the fee award in an amount proportionate to the work attributable to the 2006 agreement, the trial court may not have been aware of the full extent of its discretion in fashioning an attorney fee award."
Detailed Rulings on Fee Awards May Invite Reversals:
In an interesting observation, the court suggests, perhaps unintentionally, that the trial judge might have avoided reversal simply by not providing such detailed rulings in the future.
The court noted that its conclusion was based on the trial court's "detailed analysis of its examination and conclusions regarding the evidence and arguments, and the weight it gave particular evidence in making its award." Based on the trial court's analysis, the Court of Appeal deduced that it had misunderstood its authority and abused its discretion.
But the court also notes that, on fee awards, a statement of decision is not required. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315 (CRI).) Thus, had the trial court simply issued its award without analysis, it could not be faulted, and its abuse of discretion might have gone undetected.
Doubtless some trial judges are aware of this, which you can glean by reading their sometimes terse or alternatively-phrased rulings, designed to be appeal-proof. This is why interactive oral argument is important at the hearing to test and tease out the judge's reasoning. And be sure to bring a court reporter!
Appeals are dismissed on untimeliness grounds with regularity. This opinion, dismissing an untimely appeal, provides analysis that may help you avoid a similar fate. The problem, in short, is failing to appreciate that, while Rule 8.108 of the Rules of Court may extend the deadline to appeal, that rule never extends the deadline beyond 180 days from entry of the judgment. If you can remember only that, it will save you from the fate in Brownstone Lofts, LLC v. Otto Miller (D1d1 May 11, 2021) no. A160616 (non-pub.).
The trial court in Brownstone dismissed the plaintiff's complaint for failure to prosecute. The order of dismissal was January 9. A dismissal order is a final, appealable order. So January 9 was the red-letter date. The plaintiff-appellant ought to have put a big red circle around July 7, which was 180 days later – the absolute last date an appeal could have been filed. (Other factors might make the appeal deadline sooner, but never later than 180 days.)
The next day on January 10, the defendants served a Notice of Entry. The Notice of Entry made January 10 a red-letter date as well. It meant that the appellant's deadline to appeal was 60 days later. Unless it was extended. Which is what the appellants tried to do.
Here is where the appellants, presumably without the aid of appellate counsel, misstepped. On January 28, they filed a motion for reconsideration. And they assumed that motion would extend their time to appeal by 30 days after such time the motion was denied, pursuant to Rule 8.108 of the California Rules of Court.
So the appellants waited. They waited the 60 days after the Notice of Entry. But still the court kept them waiting. The too-patient appellants waited nearly 180 days. Finally, in June, the trial court put them out of their misery and denied the motion for reconsideration. And just inside 180 days after the judgment. (As discussed below, it didn't help the appellants.)
Not done waiting, however, the appellants waited still another month, and filed their notice of appeal on July 17, more than 180 days after entry of judgment.
The Notice of Appeal was Untimely Because It Was Filed More than 180 Days After Entry of the Appealable Dismissal Order:
The Court of Appeal easily concluded that the January 9 dismissal order was a final judgment. (Code Civ. Proc., § 581d; Moorer v. Noble L.A. Events, Inc. (2019) 32 Cal.App.5th 736, 741, fn. 3 [order of dismissal signed by trial court and entered by court clerk constitutes a judgment under § 581d].)
And under Rule 8.104 of the California Rules of Court, the deadline to file a notice of appeal is 180 days after entry of a final judgment.
But isn't the time to appeal extended under Rule 8.108 by filing a motion for reconsideration? Yes. It is extended 30 days after the date the motion is denied. Or 180 days after the entry of judgment. Whichever is sooner. You never get more than 180 days after entry of judgment. Sorry.
A Motion for Reconsideration Does Not Work After a Final Order:
Maybe you are thinking: If only the appellants had filed their Notice of Appeal in June, immediately after the Motion for Reconsideration was denied! Then their appeal would have been timely, right?
This may come as a surprise, but the answer is: No. In a footnote, the First District Court of Appeal notes that, once judgment is entered, the trial court loses jurisdiction to hear a motion for reconsideration. (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1607–1608 (Passavanti) [postjudgment motion for reconsideration is improper and will not extend the time to appeal]; Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1481–1482.) Nor is an order denying a motion for reconsideration a separately appealable order. (§ 1008, subd. (g).)
That means the appellant's motion for reconsideration was not valid, and thus could not have extended the time to appeal in any event. The trial court was without jurisdiction to grant a reconsideration motion order concerning a final, appealable order. See Marshall v. Webster (Cal. Ct. App. Aug. 27, 2020) C088240, discussed previously here.
So the appellants' motion for reconsideration was a dead letter from the word go.
Which means the appellant's deadline to appeal was 60 days after the January Notice of Entry, or March. A notice of appeal in June would have been just as untimely as July.
A Motion for Reconsideration May Be Treated As a Motion for New Trial – But, Only Under Limited Circumstances:
The appellants also argued their Motion for Reconsideration, even if invalid, should not be constrained by technicalities. The trial court, the appellants argued, could have treated their motion as one for new trial.
The First District Court of Appeal did not like this much. Acknowledging that the Passavanti case (225 Cal.App.3d 1602) treated a motion for reconsideration as a motion for new trial, it also cautioned that appellate courts "should not construe a motion expressly identified as being a particular motion [in the trial court] to be an entirely different motion in the appellate court."
And besides, a new trial motion provides no better relief from the 180-day outer deadline than does a motion for reconsideration. That is to say, neither provide any relief from the 180-day outer deadline to appeal.
"Fundamental Fairness" and Waiver Mean Nothing to the Notice of Appeal Deadlines:
The appellants argued respondents waived the untimeliness of the notice of appeal by not briefing it. They also argued the appeal should proceed to the merits out of deference to "fundamental fairness."
No. The deadline to file a notice of appeal is jurisdictional. It must be dismissed even on the court's own motion, and is not a matter for discretion. (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666–667.)
Final Take-Away:
If in doubt, file the notice of appeal immediately. While a premature notice of appeal can lead to complications in some cases, they are nearly always curable. Not so with an untimely notice of appeal.
If you were to read the eight-page factual summary of the abusive juvenile in People v. S.O. (D3d2 May 7, 2021) no. E075778, you would be disappointed by the payoff in terms of application of those troubling facts to law. That is because the legal application consists entirely of just two sentences:
"We offered minor an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues."
Justice Raphael thinks this effort a waste, and dissents to say the appeal should have been dismissed as abandoned. While an appellate court must independently review the record in the first appeal of right in a criminal prosecution, this appeal was from a postconviction order. The court, Justice Raphael notes, was not required to take the trouble to write the opinion here.
As for the minor's lack of effort to raise appealable issues, Justice Raphael provides this pithy synopsis:
"Minor's counsel raises no issues. Today's opinion discusses no issues. The opinion is eight pages without a reason to exist. One can say nothing much more succinctly."
The Upshot: While this juvenile appeal has no direct application to ordinary civil appeals, Justice Raphael's dissent advises: justices do not appreciate impositions on their time. Fully develop the issues in your appeal with factual analysis, record citation, legal analysis, and legal citation. Do not expect the Court of Appeal to find reversible error on its own.
To prepare a valid notice of appeal, the notice simply needs to “specify the party or parties taking the appeal by naming each one in the caption or body of the notice,” “designate the judgment, order, or part thereof being appealed,” and name the court to which the appeal is taken (here, the Ninth Circuit). Fed. R. App. P. 3(c)(1)(A)–(C).
In Ditech Financial, a counter-claimant, Dutch Oven Court Trust, filed a notice of appeal. But the appellant listed the wrong parties on the notice. And also the wrong case number. When the notice came to describing the judgment being appealed from, appellant listed the wrong judgment, too. The date of the judgment was also wrong.
Presumably, appellants correctly identified the Ninth Circuit as the court to which the appeal was taken.
The Ninth Circuit zeroed in on just one error supporting dismissal:
"While a “technical error in a notice of appeal does not deprive [this court] of jurisdiction,” we have reiterated the Supreme Court's admonition that “failure to name a party in a notice of appeal is more than excusable informality, but rather, ‘it constitutes a failure of that party to appeal.’ ” Le v. Astrue, 558 F.3d 1019, 1022–23 (9th Cir. 2009) (citation omitted) (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 314 (1988)). We decline Dutch Oven's invitation to treat these deficiencies as technical errors."
Appellant tried to correct these defects by filing an amended notice of appeal. Which might have worked, but a corrected notice of appeal still has to be filed timely within 30 days after entry of the judgment. Fed. R. App. P. 4(a)(1)(A). “[B]ecause the time constraints outlined in Rule 4(a) implement the limitations Congress imposed on this Court by statute, [this Court] must dismiss civil appeals that are untimely for lack of jurisdiction....” United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007).
Federal Practice Tip: California practitioners who are frequently told that the deadline to appeal can no-way-no-how be extended under any circumstances may forget that the deadline may be extended in federal appeals by motion to the district court. The Ninth Circuit here notes that appellant's amended notice of appeal might have saved its appeal had it sought the requisite extension of time to file it under Fed. R. App. P. 4(a)(5).
On our latest podcast, Jeff Lewis and I interview Alan Yockelson, discussing genetic testing, Charles Manson, and whether the Cal. Supreme Court is beginning to doubt whether juries are still capable of sniffing out fraud.
Also discussed:
• The value of tentative opinions on appeal
• How appellate oral argument can change an outcome
• Asserting objections at trial even when the judge’s mind is made up
• Why justices don't dissent or grant writ review more often
Or subscribe to the California Appellate Law Podcast on your favorite podcast player.
TRANSCRIPT:
Jeff Lewis:
Welcome, everyone. I am Jeff Lewis.
Tim Kowal:
And I'm Tim Kowal wall California Department of podcasting license number 254709. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal.
Jeff Lewis:
Welcome to Episode 10 of the podcast. We've reached double digits Tim. Today we are pleased to have
Tim Kowal:
we've we fought the odds. Today we are pleased to host as our guest appellate attorney Alan Yockelson, Al is a certified appellate specialist and represents apellants and respondents in appeals, writs and complex trial motions and civil criminal and family law cases. Alice had a couple of high profile appeals recently that we'll talk about in a few minutes. So welcome to the podcast Al.
Al:
Your afternoon. Nice to be here.
Tim Kowal:
Well, we appreciate you joining us and if you would give us a little bit of a roadmap to your to your career and how you got into appellate law.
Al:
So I became a lawyer because my wife and mother in law did not want me to continue on to be an archaeologist and go to Sri Lanka to teach first year archaeology. So that's how I made it to law school. And while I was in law school decided that I really needed to get a job clerking to see what it was all about and got my start in the district attorneys of Los Angeles, his office appellate law, worked with one of the real luminaries in appellate law by the name of Perry Psalm time, who headed that department for aeons, but I always knew that that my heart was really on the other side of the issue on criminal defense, and was fortunate enough in interesting it was in a remedies class one night that one of my fellow students was working at the time, clerking for Leslie Abramson, who was involved. I believe it was the Menendez case at that time. And she had mentioned that that attorney by name, and Dennis Fisher was looking for a law clerk. And I had heard of him because he was the only criminal defense attorney that the Deputy District Attorneys held in high regard because he was just so good. And I called him up out of the blue and said, I hear it on good authority, you're hiring. And we had an bout a four hour interview, which he never lets me forget that I left my overdue pregnant wife in the car for those four hours in the parking lot, and went to work for him as a law clerk and stayed on as an attorney with them for about a dozen years.
Tim Kowal:
Well, you went right at it then from Sri Lankan archaeologists to clerking and you knew right what you write what you wanted to do. Once you decided not to be a Sri Lankan archaeologists. That is exactly well out. One of the reasons I reached out to you to join us on the podcast, as I saw that you were the appellate attorney for Jason Freeman, who is the grandson of Charles Manson. And yes, that Charles Manson. Just last month in April 2021, the second District Court of Appeal reversed an order that would have required genetic testing before your client could dispose of Manson's remains who passed away, I believe in 2017. And that that case is Freeman versus channels, and we'll we'll post the link to that in the show notes. But that would you tell us a little bit more about that case? It's fascinating.
Al:
It was a fascinating case. And so what was interesting about the case and the reason litigation arose in that case, is that there is a gentleman by the name of channels, who claims to have been a friend of of Charlie Sr. and is the beneficiary or beneficiary of his Well,
Tim Kowal:
yeah, he was he was like a prison pen pal, I
Al:
think is how the court opinion described him exactly and, and so guess maybe as part of their legal strategy, the team that is representing Mr. Channels convince a judge in Los Angeles to order DNA testing of Mr. Freeman. Now, the problem as the Court of Appeal recognize was that there was no authority for testing a grandchild, it would have been a different story of Charles Jr. was still alive that could have done that, or order that but simply there was there was no no basis upon which the court could could order that
Tim Kowal:
right. This the statute, as I recall, the case that had to do with establishing parentage for like a minor, I guess, is the more typical case, but this was not establishing parentage, but airship was, which was a slightly different issue.
Al:
Yeah, exactly. And, and that was, you know, I'm not sure why that wasn't so readily apparent in the trial court, because it had been briefed that way. And there was another issue in the case that the courts did not address, which was that there was actually an Ohio judgment. That was it. 17 years old, that had established that Mr. Freeman was the biologic son of Charles Manson Jr. and nobody contested that Charles Manson, Jr. was the son of Charles Manson senior. But the court never reached that issue, because it didn't have to. And we know courts tried to avoid hitting advisory opinions.
Jeff Lewis:
So interesting. So Tim, this will be our first podcast episode with a crossover between cult leaders and collateral estoppel. unrest judicata make a note of that.
Tim Kowal:
Yeah. But Ohio connection.
Jeff Lewis:
When I read the court opinion, I noted that the court ruled that the genetic testing order was not an appealable order. But the court reviewed it or treated it as a writ petition. And I'm, I'm always curious and fascinated when the court goes out of its way to hear cases. Did the court invite briefing on this issue of whether or not it was an appealable order and whether or not a writ petition it should be construed as a writ petition? Not only did they not ask for briefing on that issue, they didn't even raise the issue at oral argument. And of course, the other side, never contested appeal ability. And to be honest,
Al:
I was on the fence initially, but had found authority that I had cited in the brief that led me to believe it was definitely appealable. And you know, I'd rather take my chances and file my notice of appeal because there's no saving that 60 days when it runs where the 60 day rule for writs of choruses, you know, premise, there's flexibility there, let's say as long as there's no prejudice,
Tim Kowal:
right? Yeah, I think the I think the probate code section you're referencing was 1303 F, which is a mix makes appealable orders when determining heirship succession entitlement or the persons to whom distribution should be made, which seems right on point here.
Al:
It did, and it still does. But you know, when you when you shut up?
Tim Kowal:
That's right. But I also note that the the court even cited state of Stoddard, which says that an order is appealable, even if not mentioned in the probate court court, if it has the same effect as an order that the probate code has expressed, expressly made appealable. So again, it seems it seems like it's an appealable order to me both explicitly under the probate code and under a state of Stoddard.
Al:
Yeah, and it's probably a mystery that will remain a mystery they did they chose not to publish it. And, you know, I'm not seeking publication. So it'll be just an anomaly out there.
Tim Kowal:
Is there ever a circumstance where you're the prevailing party a on a on an appeal, in an unpublished opinion? Is there ever a circumstance where you, you petition for publication?
Al:
Oh, sure. Sure. And I think the reason that when you say I'm the prevailing party, yeah. Oh, no, no, when I'm the prevailing party. No, I want to leave Well, enough alone. I don't want to invite any further scrutiny on the client.
Tim Kowal:
Keep it in conspicuous. Exactly. Yeah. Well, so you've had a lot of experience doing this. And, and I think we all agree, this seems like a surprising appellate procedural turn. In this case, by the way that by the way, the court treated this as a repetition rather than a direct appeal. So it's a surprising that's a surprising procedural point. All around is Any lesson that you take away from this and that you think the other trial and appellate attorney should take away?
Al:
Well, you know, I would like to say your do your research and look for case law to I mean, I never in my statement appealability I never just rely on the statute, I always try and cite cases that that support that notion. But, you know, honestly, I don't know that there was a lesson I was really to be honest. I surprised because, again, they didn't raise the issue of appealability at any point during the process.
Tim Kowal:
Right, maybe you just make sure if if there is any question about you make sure to hit all of the factors that would that the court would use to render it as a repetition if that became necessary.
Unknown:
Yeah, I mean, it's good. You know, I
Jeff Lewis:
was just gonna say, we talked back a couple episodes back about how nice it would be if state courts would give tentative rulings or tentative opinions in the state court of appeals that we had a guest with that talked about that in the federal system. And and, you know, when appellate justices voted to allow oral argument, that's an addition that well, they have some interest in the case. And, boy, this is the kind of issue that you kind of wish there'd been a 10 of ruling in the Court of Appeal so that the attorneys could hammer it out a little bit, at least in oral argument, if not by letter briefing.
Al:
Yeah, no question. And I practice quite frequently in the fourth district Division Two, which does in fact, issue tentative decisions. And And so yeah, you could have been sure that I would have been prepared to discuss that even even though they didn't make an issue of it in the case.
Tim Kowal:
Well, speaking of that, do you have any you have any opinion on tentative opinions? And very few districts do it? What do you like them or
Al:
not? I love the tentative decisions that come out of or two, I don't like their decisions, but I like the process. They're very difficult division if you're doing Criminal Appeals for sure. But, you know, my first cases were in the appellate department of Los Angeles Superior Court, which always issued short, but but to the point tentative decisions the day before oral argument. And I just think it sharpens your focus as to why you seek oral argument. And, you know, one of one of the things that that I lesson that I learned very, very early on was from a case in the Appellate Division, where I read the tentative, and it was really clear that the court had not read the reply brief, or at least, incorporated the reply brief. And so when I argued that case, I argued the reply brief, and got a reversal. I mean, they reverse their tentative now, I will tell you, I've been doing this about 31 years, and it was the first time that I know that oral argument actually changed the outcome of the case. But if there had not been attended in that case, I don't know that I would have focused and hit that reply brief, as hard as I did. So I find value and tremendous value. And
Tim Kowal:
now that's a that's a great anecdote, both both for the value of oral argument and the value of the tentative opinions. I think I have heard an appellate justice explain, I think out of the 4/3 year in Santa Ana, explain why they don't do tentative opinions. But they must not have made very good sense to me, because I can't remember what those reasons are.
Jeff Lewis:
Well, I've heard them say things like, well, people become entrenched in the positions in terms of the justices and they want to be free and oral argument to change their mind and issuing a tentative ruling reduces the ability of oral argument to allow justices to switch which way they're leaning.
Al:
I personally don't buy that answer. It seems to me that that the value of focusing counsels argument on the issues that the court has found important aids, the court and aids the litigants, you know, that would all be there need to remind us each and every time that we don't need to repeat the briefs and that they're familiar with the issues.
Jeff Lewis:
Interesting. All right. In case that last sound bite is taken out of context, let me just say, I have a definitive opinion that tentative opinions should be the rule. I'm just voicing the courts. What I've heard from the courts. All right, let's shift gears here and talk about another case just last year. You want a case before the California Supreme Court in nationwide bi weekly administration versus Superior Court, a case involving the right to a jury trial and the unfair competition law and false advertising. Law, can you tell us a little bit about that case.
Al:
So that this case is a is a really good example of being persistent in pursuing a case. And it's also a really good lesson in a trial attorney who engages appellate counsel at a very early stage. And and and in this case, it had both of those elements, I was engaged at the stage of briefing the demand for jury trial. And and it was rejected by the judge up in Alameda County. And I took a writ to the first District Court of Appeal, which was summarily denied, and convinced the client that this is a great issue, and one that we should really take to the California Supreme Court. And in doing so, I used a provision that not a lot of non appellate people really utilize as much as they should especially and read cases. And that is seeking a grant of a review and transfer. It gives the supreme court the ability to say, you know, this is a really interesting and timely issue. But we don't want to operate on a blank slate, we really want to hear what the Court of Appeal will come up with, because we may never have to touch this case, again, depending on what the Court of Appeal does. And so they indeed issued a grant and transfer back to the first District Court of Appeal with direction that they issue in order to show cause. So that, of course, triggered formal briefing and formal answer and a traverse and by by the petitioner and oral argument. And it was very interesting, because in their in their transfer order. The Supreme Court was was clear that they wanted the Court of Appeal to address a US Supreme Court case called Paul and and an oral argument. You know, I figured well, I'm walking into a hospital court right, no tentative ruling, this court had summarily denied the writ. And all I got were friendly questions, even by the justice, whose decision in that very division, she was overruling her own decision, but thought that she was compelled to do so by the language of the remand order by the California Supreme Court. And and so I went away very happy, needless to say, as did my client. But the district attorneys on the case had a different thought about the case. And they actually filed their own petition for review. And, again, the Supreme Court this time granted review and kept the case. And with full briefing actually reversed my win in the court of appeal. And and it was one of those decisions where there was not a total consensus of unanimity amongst the seven justices, several thought that right to jury trial should go forward on one cause of action but not on the other. And and, you know, the case had a really interesting history because the client at the last minute brought in another attorney who had clerked for Justice Alito, and was working for Jones day. And so we were working together on the case. And they were really hoping to set this case up, because an issue that was not addressed by the court of appeal was full incorporation of the bill of rights to the states and application to the States. And it was sidestepped by the court of appeal and thus not addressed initially by the Supreme Court.
Tim Kowal:
Okay. Well, I want to back up to the to the just to make sure I understand the procedural history of this case, national bi weekly, because it involved unfair competition law claims and false advertising law claims. And so on behalf of your client, you requested a jury trial, which was denied by the trial court, and then you took it up on took that up on a writ and the Court of Appeal denied the writ. Right. And the court, the Supreme Court, granted review and transferred it back down to the court of appeal, who then reversed itself but then it went back Up to the Supreme Court again. And the Supreme Court of Appeal reversed the Court of Appeal again. Yeah. So did it. Does it seem like the Supreme Court changed? It's made an early determination that it later reversed?
Al:
You know, I honestly have no clue because everybody who was following the case, thought that when they granted the district attorney's petition for review, that they were simply going to refine the decision, nobody, but nobody thought that they were going to reverse, because the, the transfer order seems so clear as to what they were, you know, asking the court of appeal to do.
Tim Kowal:
Yeah. And I admit to being somewhat concerned by some aspects of the Supreme Court's decision. Here's one one line from the case that made me worry a little bit about maybe the court is setting up two different classes of factfinding. One, one class for factfinding for ordinary people, and another class of factfinding. Only for special people, ie judges. Concerning the both the unfair competition law and the false advertising law, the court said, quote, The crucial issue does not typically involve the type of ordinary fact finding assigned to a jury, but rather calls for an equitable judgment to determine whether an often undisputed advertising or promotional practice presents a sufficient tendency to deceive or confuse the public so as to support invocation of the laws, remedies. And so to me, that the court seemed to me concern that that there are some kinds of false or misleading advertising that can that might go undetected by juries. But it just wasn't clear to me why why is that beyond the ability of juries?
Al:
I don't think it is. And I think that it was probably in artful language, because if you looked at the the legal analysis, whether it was based on state law, or whether it was based on Seventh Amendment jurisprudence, the the hallmark of determining whether you had a right to jury trial was going back and looking at whether the underlying cause of action was one at law, one of law or equity at the time the constitution was adopted. And and so under both the state and federal constitution, you had to determine what the gist of the action was. And that and and so, to me, it really just really mattered, what you were looking for. And here, what what we believed and what we had initially convinced the Court of Appeal on their second opportunity is that when the state is seeking civil penalties, which was fine payable to the crown at common law, that was not an equitable consideration, that was a legal remedy, and thus, you are entitled to a trial by jury. And and and what is even more baffling to me still, is that there was no question that under the Seventh Amendment, which has not been applied to the states that the US Supreme Court Intel said, Yeah, you get, you get a jury trial. And the toll case was a Clean Water Act case. I mean, it was very, very much akin to false advertising and unfair competition in in both the structure of the statute, and and the analysis that is applied one under, you know, the US Supreme Court, the other under under the state constitution number 119 41. Chevrolet. You know, what,
Tim Kowal:
what has always made sense, in my mind to distinguish equitable from legal claims was the nature of the remedy. You know, if it's a rescission action, or if there are multiple parties to whom relief needs to be afforded, you know, those are in the nature of equitable claims. But if you're just talking about money, then it's a legal claim, and the court seems to be changing the the focus of the equitable versus legal analysis to the difficulty of the fact finding function of it, which, which seems unusual to me.
Al:
Yeah, I would agree. And and I, you know, again, I'm not sure if it was if they intentionally laid that out there or if it was just an artfully worded language, because it was in and around at least the equitable versus at law, dichotomy, that that one or an analysis that one would used to determine the right.
Tim Kowal:
Well, so here I need you to weigh in on this question now because the national bi weekly case brought up brought this anecdote to my mind. This anecdote about winemakers during Prohibition who had been forced to sell harmless grape juice until one day, somebody in the wine making industry got the bright idea to paste a prominent label on each bottle announcing boldly warning will ferment and turn into wine. And then followed by a step by step list of instructions on how a careless consumer might hypothetically go about doing so. So what do you think al? Is that a, is that a jury question? Or is that need to be decided by a judge as an equitable fact finding determination?
Al:
It sounds sounds very much like a jury question.
Unknown:
And
Tim Kowal:
jury, whatever convict and your
Al:
anecdote reminds me of a family story my wife tells because during Prohibition, her grandfather owned a liquor store and he sold cordials, which were the only form of alcohol that were still legal under prohibition.
Tim Kowal:
That's a you have to get a lot of cordials I guess,
Al:
GAVI a lot of cordials. And a lot of chocolate.
Tim Kowal:
Yeah, maybe maybe you could look around by their by their obesity rather than their demeanor.
Al:
Diabetes be a key tracer?
Tim Kowal:
Yeah. All right. Well, I have a couple of odds and ends questions if I might ask you. Now you work with a lot of trial attorneys. And one things I've noticed one thing I've noticed that trial attorneys hate is, is appellate attorneys like us telling them all the issues they need to put into the record, even though it's so patently obvious to the trial attorney, that the trial court is going to reject all these arguments and objections and just get annoyed. After all, the trial attorney still wants to persuade the trial court and doesn't need us appellate attorneys throwing spaghetti all over the place hoping something will stick on appeal. So how do you go about responding to these kinds of concerns on the part of trial attorneys?
Al:
Well, I'm I'm generally pretty blunt and say, Look, you are going to be far better off at the end of this case having preserved an issue than having waived it because there is no there is no worse feeling for an appellate attorney to get a new case in hand and see a wonderful issue and find out that there was no objection, or somehow the issue was waived. And there must be no worse feeling to a trial attorney to be told that because I'm not hired by the trial attorney, I'm hired by the client, which means I have to inform the client that but for this procedural mistake, they may have preserved a winnable claim. And we know where that goes. So it's uncomfortable, but the loyalty of the appellate attorney is always to the client, not to the trial attorney who refers okay. And I'm blunt about that, too, with the trial attorney, you know, if you if you don't preserve the issue, we're putting a claim at risk for yourself as well.
Jeff Lewis:
Yeah, good point. Good point. All right. Let's switch gears here for a second. How has the pandemic impacted your firm's practice and how you're handling appeals.
Al:
So I am probably one of the rare birds that it has not affected my practice at all. At least not in the day to day operation. I have been a solo and sometimes use contract attorneys, but principally a solo since 1994. And I've worked at home since 1994. So my day to day work. Habits haven't changed one bit. The two areas where COVID affected me we're Of course, without trials. You don't have appeals without cases going forward. You don't have ribs, although there were a sprinkling of rats because there was some, you know, law in motion that was moving forward during the pandemic. trying to think of this The second way that effect affected me Oh was oral argument. I am one of those people. I have done telephonic oral arguments and going back to the years that I lived in Oregon when it was available because telephonic oral argument had been available in several different District Courts of Appeal well before COVID fourth district Division Three always had the deputy The Attorney General's in criminal cases appear via video. They prefer that they would make the trek up to Santa Ana from San Diego, but few of them opted to do that. And then the sixth District Court of Appeal in San Jose, and I also I believe the fifth district in Fresno also had telephonic oral argument. And so for a good portion of my career, I lived in Eugene, Oregon, but practice exclusively in California. And sometimes I chose to have oral argument telephonically rather than travel. But I have found a qualitative difference in engagement by some of the justices via video platform as opposed, right.
Tim Kowal:
Right, do you think that will be a mainstay or that that'll continue indefinitely, then attorneys opting to appear telephonically or via video, whereas before, you know, before the pandemic, before people were habituated to, to the zoom world, they probably would have would have thought that it was just too unusual. And they would be they will be prejudiced. But now I think the stigma may be largely gone from all that.
Al:
I don't think it will. I don't think it will continue, I think once the courts are comfortable with with counsel appearing in person that the the sense that I'm getting, and I've been on a couple of different panels, because I'm a member of the appellate Inns of Court here in San Diego, and this issue has been addressed by the presiding judges, a judge Justices of all three divisions of the fourth district is that the desire is to get everybody back in, or who may enjoy that that face to face exchange.
Jeff Lewis:
That's interesting. You know, when briefing is done in the state system, we usually get a form to request oral argument or to meet confer with your opponent about waiving, I sure would like to see that form modified to Adeline saying meet, confer with your opponent about whether video argument might be appropriate because there's some cases where maybe you want to waive or maybe you don't in terms of economics, but an video oral argument of the other side of greed might be appropriate?
Al:
Well, it certainly keeps costs down for the client. And if you dovetail that with the earlier discussion of tentative decisions, again, it further refines those cases where you would maybe argue if you didn't have to spend four or five hours just traveling back and forth between San Diego and Santa Ana, or out to Riverside or up to LA.
Tim Kowal:
Yeah, on a related question art, have you had cases where you have waived oral argument? and under what circumstances might you waive oral argument?
Al:
Yeah, so so I have a case right now, that is a criminal case. The issues in that case are sitting in front of the California Supreme Court in the case called people vs. Louis. And every case that has been decided adversely to the defendant gets a grant and hold behind Louis, and I could see no value to my client, for me to go to oral argument, knowing that auto equity sales, you know, prevents the court from doing anything other than affirming the denial of relief, because we're going to the Supreme Court, and we'll sit there and the Supreme Court will well ultimately decide Louis, so I just thought it was of no benefit to a client and no benefit to the court. They knew they knew what they were doing.
Tim Kowal:
So is the in the Louis case you say? Is that is that under review?
Al:
It's under review? Yeah.
Tim Kowal:
Is that there's a there's a new modification to what is the rule is at a point 1115 I believe that has to do with citing decidability of cases while they're under review. And now now there's a new Advisory Commission report that or opinion that says yeah, it changes the rule on it.
Al:
Yeah, it's clear as mud is.
Tim Kowal:
Yeah, yeah. So so that that may or may not be the case now that whether auto equity sales commands the lower court to to follow the case that's under review.
Al:
Yeah. Generally speaking, though, they will do it. They will. If it's under reviewed, they figure there's no harm to the defendant, because the supreme court's going to issue a grant and hold and they're either going to, you know, affirm, in which case cases done or they're going to reverse on the lead case, and then everything will get sent back in reverse miniatures. The issue in lewis is pretty clear cut in terms of you know, For the council,
Jeff Lewis:
and no relation, right, just to be clear now,
Al:
really now that I know.
Jeff Lewis:
Hey, let me ask you this. Switching gears one more time, I probably practice primarily in state courts, I don't do a whole lot of federal work. And in the state Courts of Appeal, you don't see many dissenting opinions. And I wonder if you have any thoughts about why you don't see more? And should there be more? So I,
Al:
I think, yeah, definitely, I think there should be more. What I have heard and come to believe, is that a lot of it has to do with the way the different courts take the batch in in state court, they pre conference and circulate draft decisions before oral argument. And so if there is a contrary point of view, it'll be fleshed out at oral argument. But there's, you know, there's just as consensus building before the case is ever set for oral argument. So I think a lot of the concerns that may be one justice might have are alleviated by draft opinions that that go back and forth between chambers. Whereas in the Ninth Circuit, there's no single bench memoranda for the judges taking the bench each of the judge's chambers, produce their own memoranda. And so you can get, you know, maybe at the end of the day, you don't get more widely differing opinions, but oral argument can certainly be wider ranging than in the state court. if for no other reason, then you have three judges in the Ninth Circuit, who all have their own opinion and may not be consistent with the other two colleagues on the court.
Tim Kowal:
Right. There might be, there might be somewhat less work product developed by each of the state court appellate justices for each individual case.
Al:
Yeah, I mean, it. It's reminiscent of a story I was told very, very early on, you, too, may be a little too young to know who Bernard Jefferson is. Does that name mean anything to either of you? So So Bernard Jett, and wrote the famous bench book, that was the Bible, in in LA superior courts, especially criminal courts, and laid in is a kind of snippets of it in my desk somewhere here. Yeah, late, late in his career, he was elevated to the court of appeal. And, and at one point, all of these writs were coming in to the court, and he was the lone justice wanting to hear a writ. And so his one vote didn't get it. And he went to the presiding justice. And he said, I don't get it. I don't understand. You know, these are some really good issues. Why is everybody passing on it? And he said, Well, I tell you what, Bernie, here's the deal. I'll vote with you. If you keep the case, in chambers and your chambers. It's added work.
Tim Kowal:
Yeah, so it's a it's a negative incentive.
Al:
Yeah. So So I think in that vein, you know, not each each chambers, not working up their own bench memoranda on a case in state court. It's got a little bit of that involved there. They're already burdened tremendously. And, you know, to to greater or lesser extent, I don't know, if you read the recent article out of Sacramento on the backlog of cases, our third district, it's getting very, very ugly.
Jeff Lewis:
So that's an issue we've been following covering on our podcast, both in terms of the requests made by two prominent lawyers to the Supreme Court to take this list of cases and transfer and the Supreme Court's summary decision not to want to Yeah, yeah.
Al:
And I've known de Eisenberg for a long time. So yeah. Yeah. As we would say, in Hebrew, it's a by Ah,
Jeff Lewis:
yeah. And, you know, I read over the weekend, a earlier this week, a op ed in the Sacramento Bee by the Sacramento bees editorial board suggesting Well, the Supreme Court's not going to fix the problem by by transferring the cases maybe it's time for Sacramento to add more justices. I've also been a party to a listserv talking about, you know, there's this 90 day rule about justice is not supposed to be paid. If they have a decision under consideration for more than 90 days. Maybe there needs to be similar rule on the briefing. End. I feel a little conflicted on that, because I don't know about you. But on occasion, I will request more time for a brief. And I feel like the lawyers might pay the price if there was such a rule in terms of the liberality of granting such such extensions.
Al:
Yeah. And and my fear would be that even if such a rule were implemented, you know, the 90 day rule to decision has a major loophole in it right, which is they could resubmit the case
Tim Kowal:
to vacate submission. Right. So yeah,
Jeff Lewis:
I had a case where for three years, it was resubmitted. Yeah, it was crazy that the justices made it very clear in oral argument is the fourth Appellate District Division Three, he made it very clear in oral argument that they wanted the parties to talk settlement, and it was vacant and resubmitted for three years.
Tim Kowal:
Wow. That I've never heard of something that long
Al:
for three. But but wow.
Tim Kowal:
say, well, that yeah, that's well, that's the that's the one to beat, then you've got the record, Jeff?
Al:
Well, I think there's one in Sacramento that's been seven years post briefing that they have not decided
Tim Kowal:
You're kidding. smokes. Oh, I'm not I'm not kidding. Well, what if someone anonymously filed the government code section form to the Judicial Council? Well,
Al:
I think if you did the Council on judicial performance, already involved in what's going on in Sacramento, so
Tim Kowal:
all right, well, Jeff, I think it's that special time and in the episode when we get to the lightning round. Oh, boy. I don't want to steal your I was gonna say steal your thunder. But that would be a terrible, terrible pun.
Jeff Lewis:
You've been asked me to work on a sound there it is. All right. Now, if you haven't heard our lightning round before on our podcast, we we now ask a series of questions, the most vexing questions that concern and and annoy appellate nerds around the world. And we ask for your shortest answer possible to see if we can get through. And let's see how far we can we can go. So here we go. We've got we've switched them up for listeners. So we've got some new ones. When you do headings in a brief, Roman numeral one, etc. Use all capitals, initial capitals, or do you prefer sentence case? capitalization? Roman
Unknown:
numeral all caps.
Jeff Lewis:
Tim, where are you on that?
Tim Kowal:
I use all caps for the for the Roman for the big Roman numerals. You know, I'll use all caps, but I usually they're usually just one word, one or two, you know, introduction, procedural history. Discussion? Yeah.
Jeff Lewis:
Okay. All right. I very rarely use the all caps. I tend to like it's easier on the eyes just to do initial caps or sentence caps. Okay. Next vexing question. Do you underline or italicize your citation to case names?
Unknown:
palletize. Underline
Al:
once I got here, there's italicize
Tim Kowal:
that Tim that's the correct answer. Yes.
Jeff Lewis:
Yeah. We have no dissenting opinion here. All right, defining names and acronyms. For example, Supreme Court, referring to Ford Motor Company as just Ford, what's your practice in terms of defining names and acronyms?
Al:
Only if the case is so seminal to the argument that I'm going to repeatedly refer to it, I will go ahead and give a short case by case and then in brackets. Got it in Tim?
Tim Kowal:
Yeah, that's been my practice. Although I like this precedent set by the Ford Motor Company case, without having to put in parentheses that you're going to be referring to Ford Motor Company, as Ford, I think any person following along with would be able to read the brief without becoming confused.
Jeff Lewis:
Yeah, I gotta tell you, sometimes I'll take it a step further and super complicated cases, I'll go to generic words. So like Ford Motor Company would be the dealer or the manufacturer instead of a long bank name of the lender, because in complicated cases, it makes it a little easier on all minds. I
Tim Kowal:
think. I like that.
Al:
Anything I write that easier for the court is I
Tim Kowal:
yeah, I was talking with an attorney today who does some some EPA litigation and the terms that they have to use. They're just I mean, that max out my IQ points, just listening to him at lunch. And I can't imagine getting through a brief with more than two or three of those. So yeah, I would find ways to use labors and language. You need
Jeff Lewis:
to find a more interesting lunch crowd if we're talking about that at lunch. All right. Next issue. We're gonna have a big division between me and Tim on this one. We've run across this before pled p led or pleaded p l e. a. d d.
Tim Kowal:
That's the wrong sir. Right. dissenting opinion filed by Jeff Lewis.
Jeff Lewis:
All right. We'll do a couple more and then we'll move on the most important and most vexing question facing appellate nerds such as us, century schoolbook garamond or something else that comes up thoughts?
Al:
Well, after almost what feels like a lifetime of Times New Roman, I have been forced into century school.
Tim Kowal:
Yeah, records unanimously. Right.
Jeff Lewis:
Okay, fantastic. All right. And all right, final final final entry in our lightning round on a related point to spaces or one after a period.
Al:
So that is an evolving aspect of writing I had always done to now I go, I've been net one for the last five years or so. Old dogs can learn new tricks.
Tim Kowal:
Yeah, I had to really train myself out of that one as well. And I hadn't it hadn't been entrenched as long with me, but it was it was painful.
Jeff Lewis:
The correct answer is one space. And I'm working on Tim maybe by Episode 20. He will he will adopt
Tim Kowal:
it doesn't like me equivocating on that one doesn't like the suggestion that two spaces could be acceptable.
Jeff Lewis:
All right, well, you survived or lightning round. I do have one final question I'm gonna ask before we wrap up the interview, and I'm gonna put you on the spot. I hope you don't mind. When I sat for the certified appellate specialization exam, I sat in a room with all the other hopeful specialists, and all the other categories of law brought little books with them with tags on them. Not me. I couldn't bring the code of civil procedure tab because the appellate specialization exam was closed book while the other practice areas was open. But you served on the commission or the committee that that drops the questions any insight as to why the committee likes to torture appellate lawyers more than other lawyers?
Al:
Yeah. Yeah. It's, it's, it's the answer is yes. I understand why we do it. Because most of the questions are rule based questions. There's very little substantive law on either the criminal or the civil appellate specialty exam. And, and so we're always the questions always seem designed to probe the rules of court. And if you could bring them in with you, then you probably had the answer to, you know, 90% of the multiple choice questions.
Tim Kowal:
Go ahead. I tell people that among the I think there's 11 areas of Legal Specialization, that among those 11 I think a pellet is a is almost alone among them, that doesn't have a single substantive law to it. It's pure procedure. So I usually when I introduce myself to people usually have to apologize to them that they're going to learn that there's one more type of attorney that they're going to learn about.
Al:
I analogize our role, way, way back almost 30 years ago, to to really baseball teams when they travel, right, you need to know the ground rules of the stadium you're playing. And the Court of Appeal has different ground rules than the trial courts have. Yeah, yeah.
Jeff Lewis:
I think that's fair. I think that's fair. Okay. I forgive you for that vaccine feeling I had sitting in the exam, while these other lawyers were flipping madly through a book and
Al:
it wasn't personal. It wasn't. Okay.
Jeff Lewis:
All right. Well, listen, we want to thank you for sharing your thoughts on appellate practice with our audience. Do you have any final parting words you want to share with our podcast audience?
Al:
Well, no, I thank you for the opportunity. And I will say I am going to be filing a cert petition in the ron jeremy Hiatt case. So if that gets granted, that might be a good one to come back and visit me again.
Tim Kowal:
We'll look forward to it. Well, thanks for coming on. Alan. Yeah, keep us posted on that case.
Al:
We'll do Thank you, gentlemen.
Tim Kowal:
Thanks. Bye.
Jeff Lewis:
Oh, well, that wraps up this episode.
Tim Kowal:
If you have suggestions for future episodes, please email us at Cal podcast@gmail.com. That's ca 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:
See you next time.
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You have just listened to the California Health 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
As attorneys, it is important to have an internal dialogue asking: Is the judge in our case going to wonder, are we the baddies?
"Hans.. I have just noticed something. ... Have you looked at our caps recently?"
"Our caps?"
"Yeah, the badges on our caps, have you looked at them?"
"What? No, a bit..?"
"They have got skulls on them. Have you noticed that our caps have actually got little pictures of skulls on them?"
"I don't uh...."
"Hans... are we the baddies?"
(British comedy show That Mitchell and Webb Look.)
Less amusingly but to the same point, here's the Rutter Guide:
Did the “right party” win? This fundamental question should be asked in every case. ... If an independent and objective observer, after reviewing all the facts, is likely to conclude that the “right party” won at trial, the judgment will probably be affirmed. If the appellate court judges feel comfortable with the result, the odds are that any error at trial will be deemed “harmless,” because there was no “miscarriage of justice”.
(Eisenberg, Cal. Prac. Guide Civ. Writs & Appeals (The Rutter Group 2017) ¶ 1:50.)
Before striking out on any trial or appellate venture, always ask:
"Are we the baddies?"
There is an important point of trial practice about filing dispositive motions in limine in Tung v. Chicago Title (D1d3 Apr. 28, 2021) no. A151526 (published). That point is: Don't. The same point is made about relying on nonstatutory motions for judgment on the pleadings. Finally, there is also an excellent tip for expediting an appeal of an early catastrophic trial ruling and avoiding judgment collection pending appeal. Read on.
In Tung, a real estate broker failed to disclose she had lost her license – due to multiple felony convictions for loan fraud – and had her client seller, Tung, sign a forged document so broker could collect her $25,000 commission. Seller sued to rescind, and after settling with the buyer, proceeded to trial against the title company. In the meantime, the seller had been forced to incur attorney fees to quiet title and defend against eviction proceedings, during which time he paid rent to continue living in his own property.
At the outset of trial, the title company made a motion in limine – or alternatively a nonstatutory motion for judgment on the pleadings – to exclude the plaintiff-buyer's evidence of attorney fees incurred quieting title and defending against eviction. The judge ruled those damages were not foreseeable and granted the motion.
But that's not right, the Court of Appeal held. Foreseeability here is a fact question. It cannot be determined in a motion in limine.
As the judge had also noted the complaint did not specifically allege plaintiff's theory for recovering attorney fees as damages, plaintiff then moved to amend his complaint. But the judge denied that, ruling defendants would be prejudiced.
But that's not right either, because there was extensive discovery demonstrating defendants were well aware of exactly what plaintiff's damages theory was.
A Shrewd Maneuver to Facilitate Appeal and Effect a Stay:
By this point, trial had not even begun and plaintiff's case had been reduced to a couple meager claims for about $6,000 in transfer taxes and escrow fees. So he withdrew those claims and appealed.
There was also the matter of attorney fees. Defendant title company claimed $280,000 in fees and costs. Rather than litigate that, plaintiff agreed to entry of the award, to be stayed pending appeal.
I was impressed with this maneuvering. Lesser attorneys might have misstepped here, such as by dismissing the remaining claims without prejudice, and thus running into aKurwa v. Kislinger trap. Or by litigating the fees, which would result in a judgment that likely could be immediately enforceable and not stayed pending the appeal of the underlying judgment. While a pure fees/costs award is stayed without bond pending appeal from the fees/cost award, it arguably is not stayed if the appeal is also taken from the underlying judgment. (See Quiles v. Parent (D4d3 2017) 10 Cal.App.5th 130, discussed on the Cal.App.Podcast ep. 7.)
Instead, plaintiff was able to proceed directly to appeal the judge's troubling rulings on the motion in limine and motion for leave to amend, without having to bond or defend against a large judgment for fees. Plaintiff's attorneys served their client very well here.
Warning: Nonstatutory motions for judgment on the pleadings and dispositive motions in limine strongly disfavored, "fraught with appellate peril," and "reversals may become necessary":
A motion for judgment on the pleadings must be brought before trial pursuant to Code of Civil Procedure 438, enacted in 1994. But many practitioners know that pre-1994 authorities allowed for a nonstatutory motion for judgment on the pleadings at any time.
But no post-1994 authorities exist on that question, the Tung court points out. And while Tung does not go further than that, it does leave this ominous clue: "As we have repeatedly observed, ' "cases are not authority for propositions not considered." ' " (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11.)
So no recent authorities support a nonstatutory motion for judgment on the pleadings. And none of the older authorities are worth anything. So that brings the tally of authorities supporting nonstatutory motions for judgment on the pleadings to: None.
Beyond that, the court says, it "need not decide" the question. But it does further warn that "trial judges should think twice before becoming ensnared in addressing [nonstatutory motions for judgment on the pleadings] on the merits on the eve of trial...."
On this score, a motion in limine should not replace dispositive motions. While courts have not squarely prohibited dispositive motions in limine, they have cast doubt on them. And Tung joins them: "In limine motions are designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance of trial. . . . What [they] are not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure. It has become increasingly common, however, for litigants to utilize in limine motions for this purpose." (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593 (Amtower).) .... Appellate courts are becoming increasingly wary of this tactic."
"We add our voice," the Tung court says, to these concerns. Specifically, Tung warns that "reversals may become necessary where these types of irregular procedures are employed by counsel late in the trial game." Tung reiterates: an order granting a dispositive motion in limine "raises issues that are fraught with appellate peril." "Trial judges, the vast majority of whom are incredibly hard-working, should not feel compelled to have to decide these types of ersatz in limine/dispositive motions just because trial counsel asks them to do so."
Still not sure what Tung thinks of these motions in limine? Here is the quote to put in your opposition: "[W]e caution trial judges to be wary when choosing to decide an in limine motion that, no matter how captioned, functions as a nonstatutory motion for judgment on the pleadings, particularly when the motion is filed on the eve of trial. Doing so, under circumstances like those presented here, is a recipe for reversal."
Tung will sit right next to Amtower in my next opposition to a dispositive motion in limine or nonstatutory motion for judgment on the pleadings.
Here is an appellate procedure trick I wish I'd thought of.
Unlawful detainers are designed for speedy adjudication of landlord/tenant disputes. But there was one way a tenant could readily delay the process by several weeks or months (in this particular case, by over two years): by filing a motion to quash the complaint. A motion to quash extends the time to respond to the complaint. And when it's denied, the defendant has a statutory right to file a writ petition. The writ petition effectively stays the UD action.
And this de facto stay is free (except for attorney fees). Compare that to the stay the tenant could try to get after a unlawful-detainer judgment, which, in addition to showing extraordinary harm, requires payment of rent.
But the California Supreme Court now holds that that deal, sweet for the tenant but rather sour for the landlord, is not the law.
The case of Stancil v. Superior Court (San Mateo) (May 3, 2021) S253783, involves the Docktown area of Redwood City. As reported in local news, Docktown hosts a series of berths where residents live in "floating homes." But the city decided to redevelop the area and relocate the Docktown tenants, including Stancil. Tenant Stancil refused to surrender his berth, and the landlord city filed an action for unlawful detainer.
Tenant shot back with a motion to quash, raising a jurisdictional issue (that the port department, not the city, was the proper plaintiff). Tenant argued a prior case, Delta Imports, approved raising this standing issue via a motion to quash. Landlord argued only personal jurisdiction may be raised in a motion to quash, per another case, Borsuk, which disapproved Delta Imports.
The trial court denied tenant's motion, ruling his objection had to be raised via demurrer. Tenant filed a petition for writ of mandate, which was denied. The Supreme Court granted review in March 2019.
The Court rejected tenant's motion to quash, concluding that "Nothing in the statutory language turns a motion to quash into a handy all-purpose tool for taking on the factual support for particular causes of action or the merits of a complaint." In the UD context, a motion to quash may be used only to challenge a defect in the summons, or to challenge personal jurisdiction.
In the future, tenants should not plan on obtaining a de facto stay by filing an improper motion to quash. That clarity, ironically, comes by way of the Court's having given the tenant in Stancil a two-year de facto stay while awaiting its decision. The law works funny that way.
In September 2020, we reported that the Fourth District held Amazon liable in strict liability for an exploding battery sold on its online store, because Amazon inserted itself into the chain of distribution when it charged for the purchase, and stored, packaged, and delivered the product. Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431 (Bolger). Seven months later, the Second District eagerly followed suit in Loomis v. Amazon.com LLC (D2d8 Apr. 26, 2021) B297995 (published).
The plaintiff in Loomis bought a "hoverboard" on Amazon, and while charging it on her bed, the hoverboard ignited fire, injuring the plaintiff when she doused the fire, which had also spread to her bed.
The trial court granted summary judgment for Amazon. But the Second District reversed, complete with a law review article-grade opinion.
Amazon argued Bolger was wrongly decided, arguing Amazon is a mere "facilitator." Amazon's involvement in the sale in Loomis was rather less involved than in Bolger, as unlike the seller in Bolger, the seller here maintained custody over and title to the product until the sale.
But the Second District still readily agreed with Bolger, finding Amazon fit squarely within the traditional strict-liability rubric, as the sale itself and all communications were funneled through and controlled by Amazon.
Justice Wiley's concurring opinion suggests he would have voted twice for reversal given the chance. "This case is easy," said Justice Wiley. "Once Amazon is convinced it will be holding the bag on these accidents, this motivation will prompt it to engineer effective ways to minimize these accident costs. Tort law will inspire Amazon to align its ingenuity with efficient customer safety. Customers will benefit." “Thus we have an easy case that beautifully illustrates the deep structure of modern tort law: a judicial quest to minimize the social costs of accidents—that is, the sum of the cost of accidents and the cost of avoiding accidents.”
That is rather more sugar in my tea than suits me. But we know where Justice Wiley stands.
