All attorneys know appeals are an uphill climb. But that is not really true of appeals of summary judgments. Not only are summary judgments reviewed de novo, but the court strictly construes the moving papers, liberally construes the opposing papers, and reviews the evidence in a light most favorable to the appellant.
Sensing reversal of its summary judgment, the respondent in Lubke v. Automobile Club of S. Cal. (D2d7 Jan 6, 2021) No. B302782, engaged in desperate arguments that earned it some unfavorable comments in the Second District's opinion.
We are used to seeing appellate courts take a critical view toward an appellant's arguments. Here, however, the Second District took the respondent to task for its less-than-candid arguments attempting to rehabilitate a moribund judgment. The court faulted respondent for "wholly mischaracteriz[ing] the court's ruling," and making an "equally specious assertion" about appellant's argument.
In Lubke, plaintiff was a stranded motorist who, while waiting over two hours for the Auto Club to send a tow, was injured by another motorist. Plaintiff argued his injuries were the fault of both the Auto Club and the other motorist. The Auto Club sought summary judgment on the basis of plaintiff's response to a request for admission that the Auto Club "did not cause the INCIDENT."
The trial court, however, conceded that, in light of plaintiff's other discovery responses explaining that the Auto Club's delay was a substantial factor in the accident, plaintiff could amend his response to the request for admission. Instead, the trial court ruled that plaintiff's case against the Auto Club was based on a theory of duty that the trial court found untenable.
Summary Judgment May Not Be Based on Any Issue on Which the Opposing Party Was Not Provided Notice: While a trial court has discretion to grant summary judgment on a ground not identified by the moving party, to comply with due process "the party opposing the motion must be provided an opportunity to respond." Here, that did not happen. There was nothing that relieved the Auto Club of its obligation to provide notice of any issue that would be presented by its motion or justified a grant of summary judgment absent identification of undisputed material facts related to those issues in the Auto Club's separate statement. (See City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, fn. 4 ["'"[t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist"'"].)
And besides, the trial court was mistaken about the law: the Auto Club may have a special relationship arising out of a contractual duty.
Respondent Has a Duty of Candor, Too: Seeing its summary judgment floundering, the Auto Club sought to recast the trial court's ruling as based on the issue of causation, rather than duty.
This got the respondent Auto Club into some hot water: "The Auto Club's contention the trial court granted its motion based on Luebke's inability to prove causation, as well as the absence of any duty, wholly mischaracterizes the court's ruling. ... The discussion after the court stated there were no disputed issues of fact concerned duty, not causation." The court also faulted respondent for its "equally specious assertion" that plaintiff-appellate had failed to address causation.
After remand, there may be another opportunity in this case for an appeal, and before the same panel. Persuasion is a tough business as it is. Conducting that business before jurists who remember you as having made "specious" arguments that "wholly mischaracterize" the court is tougher still.
Settlements of litigation sometimes involve a provision to enter a stipulated judgment in the event the defendant fails to perform. A judgment entered upon stipulation typically is not subject to challenge on appeal, as the stipulation means the appellant is not "aggrieved," and thus lacks standing.
That was not the case in Park Lane Assocs., LP v. Alioto (D1d4 Mar. 5, 2021) No. A155781 (unpublished), which involved a landlord-tenant dispute over building habitability. The parties agreed to a stipulated judgment and an express waiver of tenants' right to appeal. Yet when the unhappy tenants did appeal, the First Appellate District did not dismiss the appeal and instead reviewed appellants' arguments on the merits (but still affirmed the judgment).
But: tenant-appellants would have been better off had the Court of Appeal simply dismissed, as the court also found tenants were liable for landlord's attorneys' fees on appeal.
In this luxury-rental dispute, landlord agreed to reduce rent as an accommodation for the disruptions caused by construction to the upstairs penthouse, and tenants agreed to entry of a stipulated judgment in the event of breach and a waiver of the right to appeal. When more construction resumed, tenants filed suit. Landlord moved to vacate the dismissal of its prior eviction action, which was granted. The trial court entered the stipulated judgment based on the parties' settlement agreement.
Tenants appealed.
Stipulated Judgments and Express Waiver of Appeal Did Not Waive Appeal Regarding Challenge to the Underlying Agreement: Landlord argued the appeal should be dismissed because tenants had waived their right to appeal. The court, somewhat reluctantly, rejected landlord's argument.
"It is well settled that a party may waive the right to appeal, as long as the waiver is clear and express. (Ruiz v. California State Automobile Assn. Inter-Insurance Bureau (2013) 222 Cal.App.4th 596, 603 (Ruiz); Guseinov v. Burns (2006) 145 Cal.App.4th 944, 952 (Guseinov).)" And here, the agreement was clear and express. "But here, the Aliotos challenge the enforceability of the very agreement that waives their appellate rights. Rather than treating this challenge as barred by the waiver, we will consider it."
The court went on to find that tenants' challenge to the settlement agreement – namely, that they could not be deemed to have waived future challenges to uninhabitability – had been decided in an earlier appeal, and thus was barred under the doctrine of law of the case.
Arguments Made for the First Time in Appellant's Reply Brief Deemed Waived: Tenant-appellants also waived an issue made for the first time in their reply brief. The argument is a new one and subject to the general rule that we do not consider contentions raised for the first time in a reply brief. (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115 ["An appellant . . . forfeits an issue by failing to raise it in his or her opening brief"].)
You are successfully litigating a disputed legal point. You obtain a preliminary injunction in your favor. You then proceed to trial. But before the court issues its judgment in your favor, another county superior court, faced with the same legal question, issues a preliminary injunction deciding the question against you. And then the Court of Appeal for that other district issues a summary denial of a writ petition, thus affirming that problematic ruling.
So what does that terse summary denial mean for your case? You know that "Decisions of every division of the District Courts of Appeal are binding upon all the . . . superior courts of this state." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
But: Is a summary denial of a writ petition a "decision"?
Ventura County involved a new law effective January of 2019, providing that the public may now obtain disclosure under the Public Records Act of records concerning officer-involved shootings and other serious use of force, sexual assault, or dishonesty. Previously, these records were only available pursuant to a Pitchess motion.
But what about records prior to 2019? Is the statute retroactive to cover those records as well?
The Sheriffs Association was not waiting around to find out. The Association sued the Sheriff and the County to enjoin production of any earlier records. The trial court agreed with the Sheriffs Association and granted a preliminary injunction. But in the meantime, a similar lawsuit in Contra Costa County was litigating the very same issue, but the trial court had come out the opposite way. The officers' association in Walnut Creek Police Officers' Assn v. City of Walnut Creek (2019) 33 Cal.App.5th 940 filed a petition for supersedeas, but the First District summarily denied it, finding the statute retroactive.
After the First District's decision summarily denying the association's arguments in Walnut Creek, however, the trial court in Ventura County ignored it. Instead, the trial court agreed with the Sheriffs' Association, found the statute was not retroactive, and issued a permanent injunction in favor of the association.
This was a clear failure of a trial court to follow binding precedent of an appellate court. A clear failure, that is, only if a summary denial of a writ petition is a "decision" for purposes of Auto Equity Sales.
So is a summary denial of a writ petition a "decision"?
Yes, says Ventura County: "VCDSA claims Walnut Creek is non-binding because it was a summary denial of petitions for writ of supersedeas. We agree the decision is procedurally atypical, but the court did analyze and decide the same issue presented here."
The court gave no further analysis. And the court did go on to concur with Walnut Creek on the merits. But the court clearly believes summary decisions are still "decisions," and binding as such.
Is the Ventura County analysis correct?
I would not read too much into the Ventura County court's result here on the issue of the precedential effect of summary denials. Other cases have held that summary denials of writ petitions are binding only if a writ petition was the exclusive means of obtaining review of the issue. (Leone v. Medical Board (2000) 22 Cal.4th 660, 670.) Besides, a summary denial is not law of the case, so if it is not binding even on the litigants appearing before the court, why should it be binding on strangers to the lawsuit? (Kowis v. Howard (1992) 3 Cal.4th 888, 899; People v. Medina (1972) 6 Cal.3d 484.)
And if the summary denial is not accompanied by a written opinion, there is authority to support the argument that it "cannot properly be deemed a conclusive decision on the merits," because a petitioner "is entitled to an appellate court's determination ... `in writing with reasons stated' (Cal. Const., art. VI, § 14)...." (People v. Medina (1972) 6 Cal.3d 484, 493.)
So there are strong arguments that a summary denial of a writ petition, with or without an opinion, is not a judicial determination on the merits, as long as the writ petition was not the sole means of review of the issue (like a Public Records Act request, orders concerning expungement of a lis pendens, or rulings concerning a physician's license or on judicial disqualification, etc.). (People v. Jahansson (2010) 189 Cal.App.4th 202, 211.)
Takeaway: Litigants sometimes file writ petitions in the Court of Appeal to seek review of grievous but nonappealable orders that come down prior to a judgment. If the writ petition is summarily denied (as they usually are), you may need to be prepared to argue that the denial has precedential effect. Or, you may need to be prepared to argue that, no, in fact, it doesn't. The cases above should give you a start on either side of that split.
In a hyper-formalistic holding in Mostafavi Law Group, APC v. Larry Rabineau, APC (D2d4 Mar. 3, 2021) No. B302344 (published), a judgment entered on an agreement under Code of Civil Procedure section 998 was vacated. The defendant's 998 offer did not include a signature line for the plaintiff to sign, though the plaintiff signed it anyway, and the court entered judgment on it. When a dispute arose about fees and costs associated with the 998 judgment, defendant moved to set it aside, noting he had failed to comply with section 998 in his own offer by not including a signature line. The trial court agreed, and vacated the judgment.
In a case of first impression, the Second District affirmed, holding a judgment may not be entered on a section 998 agreement in which the offer does not provide an acceptance provision.
Section 998 requires that an offer "shall include ... a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted." (Though section 998 goes on to allow that acceptance may be made "on a separate document," tending to undercut the necessity of the signature line in the offer.)
Appellant Mostafavi Law Group made a number of strong arguments, but the Second District rejected all of them.
First, appellant argued the omission of the signature line, even if erroneous, was harmless. The Second District did not conclude otherwise. But in its analysis (unsatisfying, in my view), the court concluded that harmless or not, the offer was invalid, and thus the agreement, and the resulting judgment, likewise were invalid.
The court noted that other 998 cases involving rejection of offers without acceptance provisions have held the offers invalid. The Mostafavi court considered it "a logical extension of their holdings" to conclude that the acceptance and resulting judgment on such invalid offers likewise should be considered invalid.
(But I would note that, in those prior cases, by not accepting the defective offers the offerees refused to acquiesce in the error. That is not the case here, thus making any error harmless, and establishing the aggrieved party had waived any such error. Parties typically cannot seek redress for their own invited errors.)
Appellant also argued that, section 998 aside, the parties struck a valid agreement to dismiss the lawsuit. And besides, any defect was the offeror's fault,
No dice. Relying on the California Supreme Court's decision in Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1020, when invoking section 998, all normal rules of contract are out the window.
Equity, too, is excluded from the picture. And besides, the court notes any equitable argument arguably "has been forfeited, as MLG did not raise it before the trial court. (See Bigler-Engler v. Breg, Inc., supra, 7 Cal.App.5th at pp. 331-332.)" Appellant also did not satisfy all the elements of equitable estoppel.
Takeaways: Section 998 offers are a minefield of technicalities. Normal presumptions in favor of the judgment may not apply. Be very wary.
But beware if you are in federal court: A recent Ninth Circuit decision in Langere v. Verizon Wireless Services, No. 19-55747 (9th Cir. Dec. 29, 2020) warns that federal Courts of Appeals may reject any such appeals as an attempt to manufacture appellate jurisdiction.
Like under California's one-final-judgment rule, with some exceptions an order or judgment is appealable in federal court only where it disposes of all claims. 28 U.S.C. §1291. One exception is Federal Rules of Civil Procedure 54(b), which gives the district court discretion to enter a judgment involving fewer than all claims or fewer than all parties.
Collateral orders are another exception.
The other key exception is 28 U.S.C. §1292(b). That statute gives courts discretion to allow an interlocutory appeal when an order (1) presents a controlling question of law; (2) as to which there is substantial ground for difference of opinion; and (3) the resolution of which would materially advance the ultimate termination of the litigation. 28 U.S.C. §1292(b).
But the Ninth Circuit has cautioned: “Although a dismissal without prejudice can be a final, appealable order, there must be 'no evidence [one or both of the parties] attempted to manipulate our appellate jurisdiction by artificially `manufacturing' finality.'” Adonican v. City of Los Angeles, 297 F.3d 1106, 0 (9th Cir. 2002).
As Hofmann and Petrick note, "a misstep can cause disaster. For example, while it may be possible to appeal court-dismissed claims after voluntarily dismissing other claims, an appeal may not lie from voluntary dismissal of all claims, following a major procedural loss, such as denial of class certification. See Microsoft, 137 S. Ct. at 1716-17 (Thomas, J., concurring) (suggesting that a party who voluntarily dismisses claims lacks standing to seek relief on appeal)."
In Langere v. Verizon, after the district court granted the provider's motion to compel arbitration, the consumer voluntarily dismissed his suit with prejudice and appealed. Hofmann and Petrick note that, under prior Ninth Circuit precedent, this would have been permissible. But in light of the Supreme Court’s Microsoft Corp. decision, the Ninth Circuit concluded that the consumer’s gambit to manufacture appellate jurisdiction accordingly failed, and dismissed the appeal for lack of jurisdiction.
If you are developing a strategy after a devastating order before a final judgment has been entered, that is an excellent time to consult appellate counsel.
whether to consider waiving oral argument (M.C.'s answer: Never.)
The discussion then turns to questions relating to appellate briefing, including font choice, whether to use one or two spaces after a period, and the citation parenthetical du jour, (cleaned up).
Welcome to the California Appellate Law Podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis:
Welcome, everyone. I'm Jeff Lewis.
Tim Kowal:
And I'm Tim Kowal. 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. So welcome to episode eight of the California Appellate Law Podcast. Today we're joined by the very well regarded California appellate attorney MC Sungai. Law.
Jeff Lewis:
That's right MC is a distinguished attorney with three decades of appellate practice behind her. She leads her firm's appellate practice out of Orange County, California. She's a member of the board of directors for the National Association of Women lawyers, and she's served on numerous appellate and litigation boards for national and local bar associations. She served as an adjunct professor at my alma mater, Loyola, Loyola law school. And most recently, she's taken to clubhouse where she and I bumped into each other in a room and a presentation about legal podcasting. And that's how she came to be a guest on our show. And welcome MC.
MC:
Thank you to both of you for having me. I appreciate this. And I'm particularly honored to be what I understand is your first guest. So I'm happy to join you.
Tim Kowal:
Well, first guests that we've told you about. We've had, we might have had many others that are just in the can waiting to come out. But we don't tell our guests. But I think I think Jeff and and you MC had bumped into each other on clubhouse, as Jeff mentioned, and I've tried to be an act tried to be active on LinkedIn, and I, and I know that you're active on LinkedIn, as well. And we've crossed paths a little bit. And I've enjoyed the banter on LinkedIn comments with you as well.
MC:
Yes, thank you. Yes, I think it was about a month or so ago, I did a little roundup of, of folks I'd seen with interesting posts on LinkedIn. And I, I added you to that, Tim, because I thought you had, you know, some valuable information for trial attorneys on there.
Tim Kowal:
I appreciate that. And I know one of the questions that that Jeff had wanted to ask you is, is whether your firm is is supportive of of your efforts on things like clubhouse and LinkedIn and collaborating with other appellate attorneys in the social media spheres, that obviously takes time away from billable hours and from your fellowship program, which we're anxious to talk with you about?
MC:
Sure. Well, I think that as a partner in any firm, and you know, as a private practice chair at a Buchalter for the appellate practice group, there are a lot of other things that that we are responsible for, besides, of course, doing our work as appellate layers, per se. So I think that in my view, the work that we would be doing otherwise, traveling, writing, speaking, going to clients, a lot of the clients are online on LinkedIn now far more than they were previously. And, and by that I mean in house counsel, as well as trial lawyers for us appellate lawyers. And so I look at that work as sort of an adjunct or kind of where, where that activity happens now, more than it would have been Bar Bar activities and and traveling for conferences. So I think it just kind of interchanges with that given what's going on.
Jeff Lewis:
That's great. That's great that your firm gives you the freedom to do that. I know, a former firm that I used to be affiliated with, that Tim used to be affiliated with as well wasn't necessarily supportive of spending a lot of time in non billable hour activities. So it's great that your firm gives you that opportunity. Tell us your firm has developed an appellate training program to increase the competition for business for appellant attorneys like me and Tim, tell us your secret sauce, so we're not left at an unfair disadvantage regarding this appellate academy you're developing?
MC:
Sure so. So it's called the Kauffman appellate fellowship. And it's, it's it's an idea that I've had for several years, but buckhalter was very positive and in embracing it. It's named in honor of Marcus Kaufman, the former California Supreme Court Justice, who upon his retirement founded the appellate practice at buckhalter 30 years ago. So at the 30 year mark, it seemed like a good time to have something recognizing his work at the firm and and also to mark a milestone for that appellate group. And I came in as the first official chair of the appellate group in August of last year. And and so we we kind of hit the ground running with this fellowship very early on. And it is the first to my knowledge in in big law. So in big law firms, there are a few of these fellowships in boutique firms scattered around the country. And also there are some similar programs in the US Solicitor General's Office and the state Solicitor General's offices. California has one, Utah has one. I think Texas has one. So they're designed to give an opportunity and appellate law for new graduates. So typically, in appellate law, you're going to be coming from some other kind of practice area, you've been a litigator for a while, or you've had a couple of district court or appellate court clerkships. And then you move into into doing appellate work. This fellowship is designed for folks before that. So before they have a clerkship or maybe between clerkships, maybe they have a district court clerkship, and they're considering an appellate court clerkship after that, or they're just recent graduates who are interested in appellate law. And so they'll come to the fellowship for one or two years. And then we will either help launch them into a clerkship, if that's what they're interested in. Or if all parties agree and and everything works out, then then it's also possible for them to carry on from a fellow physician to an associate position if they don't want to do a clerkship after that. So So that's kind of the program.
Jeff Lewis:
And yeah, and what do members of this program, one of the participants do for this one year, two year while they're in the program?
MC:
Yeah. So it's, it's a very bespoke program. It's tailored to the particular person and their abilities. I believe in that I believe in training newer lawyers and maximizing the next generation. So appellate practice can continue on at a high level after all of us are long gone. And to do that properly, I mean, I've taught in law schools for 10 years, UC Irvine, Whittier, and also now at Loyola, both in clinics and, and other appellate advocacy classes. So I have some sense of teaching from that, and adjusting to each person's strengths and helping them grow individually. So I believe in tailoring it to the particular person. But beyond that, I also believe that that they should be doing the max of what they're capable of doing and, and even beyond that, so our current fellow extern for justice Bigelow, during law school, she's a Pepperdine graduate. And she started in November. It's now the end of February, since she started in November and passed the bar in, you know, in January, she has worked on two different Ninth Circuit cases with me where she's done research and drafted, crafted, you know, a draft argument for it. She's done research for a US Supreme Court amicus brief, we co authored a published article together, we're working on another article. She's also done some site checking and more law clerk type things when when she started out. So it's really a wide array. But most, you know, I'm proud to say that she's done some substantive work very, very early on.
Tim Kowal:
Yeah. And Jeff mentioned that we want to know the secret sauce and and I'm serious about that, because Jeff and I were just trained in the in the trenches, we didn't have a nice fellowship program to go to what are what are your fellows learning, that that poor Jeff and I are not learning in that program? And I think it goes to your point about, you know, wanting to be able to leave something behind that helps elevate the practice of appellate law, in our in our legal community. And so, how specifically do you envision that is happening through through the fellowship program?
MC:
Yeah, so so I view it as an apprenticeship somewhat of an old fashioned apprenticeship. And I think it reflects in part how I was trained both by the judges that I clerked for judge Statler on the district court in the central district, Judge Fernandez and judge Dorothy Nelson on the Ninth Circuit. So I take somewhat the clerkship model from it but then also I had excellent training from Alice Horvitz, Horvitz and Levy so it's kind of a really a combination of the training that I had, and then reformulating it based on also how I have taught students in law schools also. So there are certain, you know, key factors, I've also tended to train a lot of new litigation associates as well and large firms I've been at, because everybody needs good foundational skills. And that's kind of part of the fellowship, too. I think that sometimes you think you might want to do something, perhaps someone will come out of the fellowship and say, Oh, good heavens, I thought I would want to do appellate law. But I never want to do that, again, you don't really want to be taped in trial doing something. At the very least, they will have a very strong foundation of critical thinking, and legal research and writing, which is fundamental to all kinds of litigation and our work as lawyers. My other thinking with regard to the fellowship is that our practice as appellate lawyers is just inherently somewhat smaller. We can't, we can't have, you know, a phalanx of associates working on things with us, it's very small teams. You know, it's one partner, and maybe one or two associates or senior counsel, like that's the biggest team that you would have on an appeal. So so there's, without the fellowship, there's a lot less opportunity for us to pass on our knowledge to people. So I think I see the fellowship is being maybe there's maybe without the fellowship, there would maybe be one or two people that I can train, you know, long term to become really strong appellate lawyers, but with the fellowship when we have them coming for one or two years, and then another one coming with the possibility of just like law clerks for judges, we have a number of them that we could have at least initially trained, so that our group at buckhalter could be responsible for, you know, maybe down the line 20 or 30, people who are out circulating in the world and, and, you know, engaging in appellate practice. So it's to me like maximizing our training and being able to pass it on, because I think that really strong palate training requires an apprenticeship model. And so there's only so many that you can train with that model.
Tim Kowal:
Yeah, I like the word apprenticeship, it reminds me how I think, you know, the first 150 years of our, of our country, I think we didn't have state bars, we didn't have credentials, bar licenses, you were to if you're going to be a lawyer, you you've got some schooling, but then you went and you work for another established attorney, and you learn the ropes that way. And now, of course, you know, for many decades, we've lived under, you know, a credentialed model, you get you, you go to an accredited law school, you get that you get the you pass the bar examination, and then and then they throw you to the wolves, and you just have to start to start billing and, and and making a living. And you don't necessarily have you're not necessarily expected to have a model or someone that you apprentice under to learn the ropes for these things.
Jeff Lewis:
Yeah, well, though, with the tweak of COVID and provisional licenses, you know, the pendulum is swinging back a little bit towards a provisionally licensed person who took the bar or someone who was getting ready to study for the bar, having been adopted by a licensed attorney and working on the provisional licensing system. Well, obviously, congratulations on getting this program started. Do you expect other firms have big law to follow suit?
MC:
I don't know. Because it is a commitment from the firm to do that. I'm very grateful that Buchalter was thought it was a great idea, and is very supportive of it. I think that to the extent that firms see value to it, I hope that they will adopt it. I think that widespread adoption would allow that kind of apprenticeship, at the very least as I said, even if folks don't end up being appellate lawyers, that they could have very strong skills and foundations for other kinds of practice. Certainly, I I hope that other firms will consider it. I do think it's, it's so far been really helpful. And the like I said, the fellow has done a lot of work on an actual cases and is certainly build significant time also. So it's not it's it's not, you know, all site checking and writing articles.
Tim Kowal:
I'm sure one of the things that you cover in the fellowship program is oral argument. And that's a topic that I know that you you talk about frequently on social media. And one of the things that we do here on the podcast is to give trial attorneys tips so that by the time appellate counsel is retained that the case is well positioned for appeal. I know from your background MC that you spent several years in litigation before moving to appellate work. And we sometimes talk about how it can be a rocky transition period getting the case from the trial court to the court of appeal. And if you can't get your issues preserved, or if you don't make a good record in the trial court briefing and oral argument skills might not count for a lot. So what is your perspective on getting appellate counsel involved while the case is still active in the trial court? And do you have any any tips that you'd like to give trial lawyers that you could share with our listeners?
MC:
Sure. Well, you know, an appellate lawyer is never gonna come out the other way. on that question, Tim, we're always valuable and earlier is better than later. So I completely endorse and agree with, with your perspective on that. I would say that I've seen a few changes, since I've been practicing in how that's perceived. And I think there's two ways. The first is that the client themselves if the if it is the client is accompany the client internally is often making my request for an appellate lawyer to be involved in a case before there's an appeal. So the, if a trial lawyer is thinking about that, or wanting to engage someone, they will be on the same wavelength, as many in House Counsel, because I've heard a lot of in House Counsel say that, that we think like them as appellate lawyers, and I think by that what they mean is that we are we look beyond the particular case on the set of facts. And we look at overall strategy and the potential institutional impact of a case. You know, what is the rule of law going to be? And how can that impact other cases that we have? Is this the best case to take up for that? And should we wait for another one, really, a strategy across multiple cases, if there are multiple cases on similar issues is what I've seen come from the client side. And then similarly, Trial Lawyers, very good trial lawyers, many of them know exactly what they know, and what they don't know. And so they know what they are doing, examining witnesses and things like that, and persuading juries and the trial judge as to certain things. But there's an art to appellate argument and to framing things in the trial court so that it will be, you know, better positioned for an appeal, no matter which side, you're on whether you win, what you hope that you're the respondent, or the appellee and not the appellant. It can still be valuable to have appellate counsel.
Tim Kowal:
Yeah, I always tell clients. Sorry. I tell clients, the best way to win an appeal is to make sure that you're the respondent.
MC:
Well, that's a good strategy. Right?
Tim Kowal:
Yeah, whatever you can do to help the help the trial attorney in that regard, I think is a good idea.
MC:
Its really teamwork?
Jeff Lewis:
Yeah, it tell it switching gears here. How has the pandemic impacted your firm's practice? And how appeals are handled? And how do you see maybe past the pandemic, when things revert to normal? Do you see any changes being retained after things get restored back to normalcy?
MC:
Well, I mean, I think that certainly in the first half of last year, I think our practices were probably the least disrupted, because, you know, filing briefs electronically, and then maybe sending a paper copy if you're at the Ninth Circuit, not that different from what we did previously. So it just kind of continued on seamlessly with filing the briefs. But the biggest difference to me, and I'm sure you you have both seen is an oral argument. So you don't go to court to make oral argument, certainly in in most cases in in the last year. And it's remote, either by telephone or by video. And and the judges are remote from each other as well. And so to me, that's been such a significant change. In terms of how to present argument, what makes argument persuasive, just how an argument moves forward. I think the best example of that is at the US Supreme Court, it isn't just a matter of changing from in person to telephonic, because you don't have the visual cues from anyone, the Chief Justice had to set up the argument in a much more formal way. There's two minutes of uninterrupted you know, beginning where you get to say your your your peace for a bit. And then the justice is asked in discrete order with a certain amount of time for each of them to ask their questions. And that is far more ordered than then, you know, the arguments are when you're in person a lot more interrupting and cross questioning and things like that. So that the medium caused a change to the format and formula of the argument itself. And I think that's happening with both the video and the audio arguments. I also think it's significant that the justices and judges are not in room together for the most part as well. It's harder, I think they're, especially if they don't confer prior to argument. You, I think it's harder to catch the cues and see who is leaning towards the other in terms of how they view the case. And they're asking the questions, you know, entirely separately. So I think that the biggest change has been the remote argument. And I think it's also likely to continue in large part, the Ninth Circuit had remote argument capability. While well before this, they were really set up with the technology, due to Chief Judge Kozinski, you really, really ramped up the tech long ago. And so they originally had this remote argument set up, because the circuit is so large, that people may be in a remote town, a sole practitioner and a remote town in Montana, or Washington, it would be just too hard for them to have to, you know, take really a day or two days or whatever, to travel somewhere. And it would be very expensive. And so they set up this program for them to be able to do that. And also for judges who could not come to the argument for whatever reason. There's sometimes be a big screen about judge right on the right next to the bench, and you kind of turn to that video screen to answer questions at times. So they were really prepared for it but and made the jump really quickly. But but it's still so so different from doing that. And I think it's going to continue specifically in the ninth because of the travel that's required to move within the circuit. And the judges are getting comfortable with doing it this way. I think that they'll be comfortable with this into the future, maybe not all cases, because it's still valuable to have everyone in the courtroom. But But I think that as people have gotten more comfortable, specifically the courts, and also as they've invested in the technology to do it, they're going to want to use that technology.
Jeff Lewis:
Well, you know, I for one sure have enjoyed hearing some of the telephonic argument for the Supreme Court. I hope they I hope they continue that practice.
MC:
Yeah, it's really nice to have that live like as it's happening, like being able to listen to it. It's really it's really cool.
Tim Kowal:
See, I had started to ask a question earlier about oral argument. And I found it in my notes what I wanted to ask, it's in the in the daily journal, Myron Moskovitz had a recent piece talking about oral arguments and suggesting the possibility of maybe, maybe you want to waive oral argument in certain kinds of cases. And I wonder what your take on that was he had said, Unless you can think of a good reason to orally argue you might as well waive it, because first there are benefits to waiving, like saving costs, and maybe getting a faster opinion published or or issued. And to in California state courts or law argument rarely changes the result. What do you What's your take on Myron Moskovitz' piece there?
MC:
Well, I guess I'm kind of I don't know if it's old school or not to say this, but but I would never let an opportunity go to waste. And this is the last time you'll be able, the only time you'll be able to be in the room with all of the judges deciding your case. And the only time you'll be there and to answer their questions that they might have. And so I I never wave argument
Tim Kowal:
If their bodies or their sometimes their minds seem elsewhere.
MC:
think that it's your I mean, that's your it's your last opportunity. And I understand the point that unlike the Ninth Circuit in the state Courts of Appeal, and and even in the state Supreme Court, they've they've really conferred already. And there's at least an internal draft of what they think the opinion might say as to which there might be a mature majority vote. But But still, unlike the ninth, it's up to you totally whether you argue or not. And I just would never give up that chance that you're entitled to in California state court. And I have I've certainly had situations where oral argument has made a difference whether it's here or whether it's in a Supreme Court in another state. I think that there are some even in the Ninth Circuit, there may be some things that are not clear or it wasn't quite put that way I think of the way that Margaret Grinnell when she was I argued in front of her many times when she was on the court of appeal. And she's such a wonderful appellate practitioner now and she she puts it really nicely she says you add argument It's your opportunity to frame things differently. It may be this, you know, similar principles that you've talked about in your brief. But sometimes, you know, just certain things resonate with with you or with anyone, if you put it one way, if you put it another way, it just doesn't click. But then your job at argument is to think about different ways of analogizing, or explaining what's going on or putting this case in the stream of the development of the law. And there have been a couple of times and even maybe clarify about the facts of the case or a way of seeing the facts in the case against the backdrop of the law. And there have been a couple times in argument where that really, you could see the light bulb went on for some of the justices that oh, you know, putting that together that way really resonated with them differently than it than it had when it was put down in the brief. So no, I would I would never wave never wave argument.
Tim Kowal:
Well, that's true. There's sometimes no telling what's gonna make the light bulb come on in someone's mind. But I was I was I've always been intrigued. I talked with a an appellate colleague of mine who deals with a lot of clients who are kind of at the at the margins, their cases don't make a whole lot of economic sense, and they don't have a lot of money to spend on it. And and he and he suggested this, this interesting idea of sort of the way he structured some of his retainer agreements, which is it's like a tiered kind of approach where he'll he'll agree to do the the the appellant's opening brief, and then leave it separately whether the client wants to come back and pay him another retainer for doing the optional reply brief. And then separately, again, for the for the oral argument, because obviously in state court, but both of those are optional. And they probably, you know, if you if you are on a tight budget, they present, you know, diminishing returns. So I thought that was that was interesting, and and I and I heard you discussing on the Texas appellate Law Podcast about tentative rulings, and that I think only the riverside court here in the fourth district, does them. And I think that's I would put it in terms of an access to justice issue, because I think that by not giving the tentative decision, it forces, those kinds of litigants, those appellants who are, who are at the edge in terms of gosh, you know, I'm just tapped out in terms of financial resources to pay an appellate attorney to go in and go through the entire record and be prepared to answer questions about where the justices can find a certain fact in the in the voluminous record that maybe I need to just opt not to have oral argument, if the judges are not going to give me an idea of what issues they are intrigued by if any, there was a question there. That's just an open screed.
MC:
That's the first time I've heard of I think the term is limited representation. I know that's true and family law. There's where it's it's set forth in the rules, you can say I am coming in only for this motion hearing. And I'm not your lawyer for life. But I've never heard of limited representation and in appellate law, and so my first question would be I wonder if the Court of Appeal views that attorneys role as limited?
Tim Kowal:
That's a good question. Because Yeah, that attorney probably would, cannot just back out at whim would have to, you know, get leave to withdraw. But of course, if if they're only talking about doing the the reply brief, and which is optional, and the oral argument, which is again, optional, that attorney could just opt not to file the the reply brief on agreement on based on prior retainer agreement with the client and same thing for the oral argument. And so effectively, that that attorneys responsibilities are at an end, after filing the opening brief that is,
MC:
yeah, that's an interesting, that's interesting. I had not heard of that before.
Tim Kowal:
And and just that it's kind of closing the loop on this topic of oral argument. I did see that there was a recent study that showed that the Ninth Circuit because we talked about how in the Ninth Circuit, you don't have the right to oral argument, you only get to orally argue with the if the court invites it, the Ninth Circuit invites or law argument in just 43% of civil appeals. And maybe that gives some indication of how many how many cases appellate judges, you know, believe that oral argument is going to be is going to add something to what's already in the briefs.
MC:
I mean, the Ninth Circuit argument is, is triggered if just one of the judges on the panel wants to hear argument, and they have different the different judges have different views on that, just like we're discussing about whether whether different appellate lawyers think oral argument is helpful. Some are much more, you know, generous in the view that they want to hear oral argument and in most cases, if they're on the panel there, they're just going to ask for it and one Have them is enough to call for the argument. There are others who are of the view that, you know, there's something very particular we want to hear about, or there's a question or there's a really interesting legal issue. We want to debate in the case, or there's something factual, we just want to make sure that we we've we have properly worked through the record. And there isn't something that, you know, we don't want to be surprised by when we're writing the opinion. And we think argument could help in that regard. So I think there's a whole variety of perspectives about why different judges on the Ninth Circuit might ask for argument.
Tim Kowal:
Yeah, yeah. Or again, like your point about the light bulb coming on. I remember just in the trial court context to dealing with a trial that dealt with an accounting issue. And this issue went on for multiple years with multiple extra trying to explain this concept. And after two years of this, a new attorney came in and orally argued that Well, Your Honor, you just have to look at it. Like it was a credit card statement. And the judge said, Oh, yeah, it's like a credit card statement. And that was that was how the case resolved. Basically, it was just a different way of looking at it. It was it was a hiding in plain sight, so to speak. But yeah, that is a Yeah, that it is it is tough to walk away from those opportunities, because there are so few of them.
Jeff Lewis:
I never wave argument. Never, ever, ever, unless it's a cost concern. It's the only chance to be interactive. And if you're the respondent, it's the last chance to get the last word in after reply by the appellant. Never, never, never. That's just me. Let's shift gears here. We're gonna do the inaugural edition of a lightning round of the most important and pressing topics for appellate attorneys. Are you ready?
MC:
Okay, I'm ready.
Tim Kowal:
You thought mine were barn burners, you got a Jeff has it in store for you.
Jeff Lewis:
Here we go. short answers. We'll see how many we can get through before our time is up. Font preference: Century schoolbook, Garamond, or something else?
MC:
Country Schoolbook.
Jeff Lewis:
All right.
Unknown:
Two spaces -
Tim Kowal:
The correct answer.
Jeff Lewis:
Two spaces or one space after a period.
MC:
I am in favor of two spaces, but I am not dogmatic about it so that if somebody else's I'm working with like the one, you know, I don't completely freak out. If we go that way.
Jeff Lewis:
I'm trying not to freak out hearing that.
Tim Kowal:
My answer is similar. I do one space. But up until a few years ago, I did two spaces and I'm not dogmatic. Jeff is one space, one space and dogmatic.
MC:
okay
Jeff Lewis:
To the grave with one species. All right. Equally important question citations in footnotes at the bottom of the page or in the brief in the body that are in the brace. Very important question.
MC:
Are you talking about the Brian Garner approach? Correct? Yeah, I think he I think that the footnotes are case, citations and footnotes are fine. If it's really, you know, extra cases or like a See also or an additional point. But purely in the footnotes. I think it really completely changes how you write the brief and like the persuasive value of what you're doing, you have to adjust everything to do it that way. And it's actually more distracting to me to do it that way. So yeah, in in the text unless specific reasons but it's in a footnote.
Tim Kowal:
God I think we have unanimity here.
Jeff Lewis:
Yeah, on that one. Let's get to something very divisive. The final lightning round. The use of the parenthetical "cleaned up" where do you stand on the use of the parenthetical cleaned up?
Tim Kowal:
a lot riding on this one MC?
MC:
Oh, I know well, and today is a momentous day right because this is the first time I think that SCOTUS actually embraced cleaned up in a citation so so too big too big day for for the appellate folks today. Yes, I think that cleaned up is helpful especially in the citations where there are a lot of multiple quotes internal quotes and things like that that you're just trying to track down. I think it can be helpful I I'm fine. I'm fine with with using cleaned up.
Jeff Lewis:
And do you use it yourself?
MC:
I haven't actually. I haven't get used it. No, I have I haven't had a situation where I've needed to where it's been messy enough to do that. But I have in an ambiguous brief in one of my cases one of my colleagues used cleaned up and I was fine.
Jeff Lewis:
Okay, well, thank you for pointing out to Tim that he's been wrong all these years and that a unanimous Supreme Court and Brownback v. King came today blessed the use of cleaned up. I love it. Clarity is key in our In our line of work and "cleaned up" lets you be extremely clear in your writing. So I love cleaned up
Tim Kowal:
My position on cleaned up is that I love it when courts use it because that sanitizes it for future use. But right if if the attorney and the brief is putting together as cobbling together a citation or the citation has been used before, with all of that barbed wire strung through it with the square, the square brackets, citations and an extra, you know, quotation marks around things, I think you have to leave that barbed wire intact when you cite it to the court. And if the court wants to adopt it, and sanitize it for use going forward in 2021, and not the product of some venerable old cases that no one no one wants to go back archives to, to view.
MC:
Yeah, yeah. Well, that's, you know, that's a good point, Tim, because there's, there's two ways to avoid the cleaned up, right, or of reaching that question. One would be, do you go back to the original case, so you don't have to do all the sites for the for the more recent one, and then you don't have anything to clean up? Because you're going back to the original, or, or you just don't use that part of the decision that has all the multiple footnotes and things like are multiple quotes in it that you need to use? So I think there's a couple different ways to handle that. And to think about that as well. But, and also, Tim, that's a really good point in terms of if you were to see it in a brief in the other side's brief, how would you take that? You would want to know, like, how was it cleaned up? What was cleaned up? And what was it citing? So you're gonna want to investigate that probably a little bit more.
Jeff Lewis:
So you can send your opponent down the rabbit hole looking for issues, where maybe there are none?
Tim Kowal:
That was a very good political answer, MC because you left both of us believing that you're on our side.
Jeff Lewis:
Well, we know she's on my side. All right. Well, you survived the inaugural edition of the lightning round. We want to thank you for sharing your thoughts on appellate practice with our audience, any final parting pearls of wisdom you want to share with our listeners?
MC:
No, I'm just really glad that you guys are doing this podcast and that Tim is doing his his commentary on LinkedIn about this. I think it's always helpful to have everyone thinking about potential downstream appellate issues and to maximizing things in the trial court. So you're, you're doing a good service.
Tim Kowal:
Thank you, MC. We really enjoyed having you on.
MC:
Thank you.
Tim Kowal:
So after that conversation, our listeners can see I'm fairly conservative on typography. So even though I'm a radical on oral argument, on average, I'm a moderate. It's that old joke about the economist who had his head head in the oven and his feet in the icebox and said, on average, I'm comfortable. So now let's move on to some recent cases and news. Jeff, I wanted to share this this case about an interesting split of authority that came up in the recent case of doe versus Westmont College. On the question of review whether you can get review of post appellate fee orders in Westmont College, a student filed a successful petition for writ of mandate to reverse a suspension decision by the college. The college appealed, but unsuccessfully as the judgment was affirmed. And in light of the affirmance, the student sought his attorneys fees under CCP section 1021 dot five for having confirmed a public benefit. But the court the trial court did not agree with a student and and denied the fee motion and the student filed a second appeal now from this denial of the fees. So in case you're thinking this is just a routine fee order being appealed. That's not how the college sought. A routine fee order is an order after a judgment and that's appealable under Section 904 point one subdivision a to but as the college pointed out, the student did not bring his motion after a judgment. Instead, the student brought it after he had prevailed on appeal. So the question is, is an appellate opinion a judgment for purposes of making a subsequent fee order appealable under Section 904 point one a two. And this issue had come up not too long ago and a 2013 fourth district case of Apex LLC versus chorus food.com. All cases cited in the podcast are available in the show notes. That case treated the post appeal fee order as a collateral order. So it kind of dodged the question of whether it's an appealable post judgment order. Unfortunately, the Westmont College case also seems to dodge the question of whether the order was based on the appellate decision. And instead the court unsatisfying Lee in my view just concluded that it was made after a judgment, even if after an intervening appeal and thus was appealable under Section subdivision a two of 904 point one, but the point is if you are entitled to fees as a result of an appellate opinion, and the trial court denies fees, be prepared to argue that the order is appealable either as directly appealable under 904 point one a two or as a collateral order. That's a piece of arcane, obscure procedural law that keeps appellate nerds like us up at night about whether or not our appeal is going to be dismissed. But most lawyers going through most of their life will never have to deal with such a vaccine question. Yeah, sometimes sometimes I don't know whether I'm just nerding out and whether it's worth mentioning some of these cases, but because I had, as I mentioned, there appears to be a little bit of a split of authority here. That's why I thought it was interesting to raise. But now,
Jeff Lewis:
Tim, I think our listeners on notice that when they turn on our podcast, they're gonna hear about vexing questions that are of interest to appellate nerds.
Tim Kowal:
Well, if they if they made it this far in the episode, yes, I'm sure they are on notice. So but I will move on to a topic of I think will be a little more general appeal, no pun intended. And let me paint you a picture. Jeff, you're researching a critical issue for your clients case. And just before you give it up all hope you suddenly stumble upon a case on point. And what a case the facts are on point. The law is on point. It's a recent case, it's even from the same Appellate District that you're in. But just as you're about to copy the citation into your brief, you notice it, that decision is unpublished as that ever that has to happen to you, Jeff.
Jeff Lewis:
Well, first of all, I reject the premise. I never never give up all. But let me say, yeah, of course it happens. Find a perfect case. It's on all four corners in the same facts, and would really be helpful and it's completely unpublished. And it's it's the most frustrating thing in the world.
Tim Kowal:
I don't think I've ever met a practitioner who hasn't had that experience. So here are some ways that you might still be able to make use of that unpublished decision. So first one, if you're in federal court, you can still cite unpublished decisions. Rule 8.1115 of the California rules of court only applies to California decisions, not federal decisions. The second way is courts have considered unpublished opinions to describe the current state of the law. The first district did this and a 2012 opinion in Robertson vs. ss w. So take a look at that case in the show notes. Third Way courts cite unpublished opinions to identify important questions of law, and that's authorized by another rule of court 8.5 100 subdivision B one. In a 2019 separate statement in people vs. Valencia, Justice Lu of the Supreme Court cited nine unpublished opinions involving the same police practice that had been challenged by the defendant in that case. And of course, that's that's the the appellate judges making use of unpublished decisions. But I would not necessarily recommend putting your toe over the line on the basis of that rule of court unless you're filing a petition for review in the Supreme Court. Okay, number number four. And and now we know we do we might be putting our toe over the line a little bit. courts and counsel have cited unpublished opinions to illustrate the effects of certain laws. So here's in a in a December 2020, California Supreme Court opinion in people versus Gentile. It dealt with the issue of convictions of second degree murder under the natural and probable consequences, consequences theory. So in arguing the point, the district attorney of San Diego submitted an amicus brief and cited two unpublished opinions. And those opinions were offered because they illustrated two scenarios where the Supreme Court's holding would allow defendants who participated in deadly crimes to quote, get away with murder, and quote, the DA apparently did not cite these cases as legal authority, but merely for their relevance as new stories supportive of a policy argument. Now, the plain language of eight point 1115 simply does not allow this. The court ultimately rejected the argument, but the court didn't mention rule point 1115 or otherwise suggest the that the citations were improper? Still, I I think this was a dicey move.
Jeff Lewis:
I totally agree crosses the line, I wouldn't put my name on a prefix that took this approach.
Tim Kowal:
Yeah, I don't think I'd had the stones for that a number of years. Here's a fifth way that you might consider if you run into a to a particularly juicy unpublished opinion that you want to use. But this one also makes me nervous. Courts have cited unpublished opinions when adopting their reasoning. So here's another first district opinion. This is save Lafayette trees versus city of Lafayette. It's a 2019 opinion. And in a in a footnote, the court presumably on its own research had come across a second district decision that it rather fancied. While the parties the parties could not have cited or argued, argued this unpublished case, the first district did not so restrain itself. It said, while we do not rely on the unpublished opinion as authority, we adopt it as we adopt as our own its reasoning and quote, and then a lengthy quotation from the unpublished case. followed. Let me ask you this. Jeff, if I want the court to be aware of an unpublished opinion, what do you think about following the Save Lafayette trees approach by stating in my brief that quote, while we do not rely on unpublished opinions, the court may adopt them as their reasoning. And then following that, with the analysis contained in the unpublished opinion, without citing to the unpublished opinion, of course, what do you think about that?
Jeff Lewis:
Yeah, that whole that whole area, it makes me really nervous in a way that appellate nerds can get only get nervous, you know, appellate justices and the research staff are very savvy. They know what published and unpublished cases are out there on this specific issue and in front of them, especially in their own district. You know, about the only thing I would be comfortable saying this point is something like, while they are no published decision supporting this point, Council is aware of multiple unpublished decisions that support this point. And this would be an appropriate time for this court to publish a decision to give the bar guidance that's about as close to signing an unpublished case that I ever want to get.
Tim Kowal:
I like that it's a very, very high minded approach. Let me also note that the same lafiya trees approach might have presented grounds for rehearing pursuant to Government Code Section 680 168 Oh 81, where an appellate decision is, quote, based upon an issue which was not proposed or breathed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing, and the quote, The statute goes on. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely position petition of any party and quote, so given the parties had been barred in the Save Lafayette trees case, they were barred any opportunity to discuss the unpublished case that was mentioned and relied upon in the opinion, it arguably was an issue which was not proposed or brief by any party under government code 60 8081 and does requiring rehearing?
Jeff Lewis:
Yeah, you know, I'm not a big fan of petitions for rehearing. But that's a great point. It would be one of those rare cases where I would, I would support a petition for rehearing. And some news out of the third district court of appeal in California appellate attorney john Eisenberg has compiled a list of 57 appeals that have been pending in the third district for between two and five years. Eisenberg has a formal letter requesting that the California Supreme Court reassign those cases to other districts. They'll be introducing interesting to see what the supreme court does with this request. And more importantly, it'll be interesting to see what systemic changes are made in the third district prevent a future backlog like this?
Tim Kowal:
I'm very interested to see what happens here and I'm very appreciative of Mr. Eisenberg taking taking this task upon himself. He is a obviously a very illustrious member of the California pellet bar is the author of the rudder, the rudder guide on writs and appeals. So I would hope that that his request be well taken by the court. Okay, well, that wraps up this episode. If you have suggestions for future episodes, please email us at cow 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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Here is another recent opinion in which the Court of Appeal thumbs its nose at the California Rule of Court that prohibits the citing of unpublished opinions for any reason. (Ironically, the Court of Appeal does its nose-thumbing in an unpublished opinion.)
In the hit-and-run personal injury case of Shui v. B.R. & Sons (D2d2 Feb. 25, 2021) No. B299251 (unpublished), the Second District also provides a good illustration for personal-injury plaintiffs how to get key evidence into the record, and how to make a judgment more appeal-proof through the use of jury instructions.
The case also demonstrates how difficult it is to challenge rulings admitting allegedly improper evidence: such challenges not only are subject to wide latitude, but they are easily waived or forfeited, and the plaintiff must also demonstrate prejudice.
In Shui, the driver of a work truck clipped a passenger car on the freeway, causing it to careen out of traffic and into a woman standing behind her car on the freeway's shoulder. The driver drove on.
Defendants strategically stipulated to liability rather than let plaintiff dog them in front of the jury all trial long for committing a hit-and-run.
But plaintiff got the hit-and-run evidence in anyway. How? Plaintiff argued she was aware plaintiff had left the scene, and her awareness contributed to her emotional injuries. The trial court thought that was enough to send the evidence to the jury.
Also at plaintiff's shrewd suggestion, the court instructed the jury that the hit-and-run evidence may only be considered for the "limited purpose" of emotional distress, and not to award any damages "to punish or make an example of" defendants. Plaintiff also avoided suggesting "punishment" during closing argument.
The jury awarded the woman $4 million for her pain and suffering, in addition to $1.3 million for future medical expenses.
Defendants moved for new trial, arguing the $4 million for pain and suffering was excessive, raising the issue over the hit-and-run evidence. The trial court denied the motion.
The Court of Appeal affirmed, finding the trial court did not abuse its discretion in finding the hit-and-run evidence relevant.
Defendants' Expert Challenges Held Forfeited or Frivolous:
Defendants challenged plaintiff's psychologist expert because the expert was not plaintiff's treating physician. The court held this challenge was forfeited because it was not raised in the trial court. The court also held the challenge was frivolous because the law is well-settled that non-treating physicians may testify as experts.
Defendants also raised a Sanchez objection to plaintiff's expert, claiming that the expert impermissibly relayed to the jury what plaintiff had told him, which violates the hearsay rule under People v. Sanchez (2016) 63 Cal.4th 665. The court concluded this claim was also frivolous, as experts may relay "case-specific facts" that are "independently proven by competent evidence" (id. at p. 686), and plaintiff here competently testified at trial to the statements the expert relayed to the jury.
Defendants also raised five arguments why the hit-and-run evidence ought to have been excluded under Evidence Code section 352. The court rejected all of them, and held even if the trial court erred, any error was not prejudicial to defendants.
This illustrates how difficult the abuse-of-discretion standard is to overcome on evidentiary issues.
Moving to defendants' excessive-damages argument, the court first noted defendants "arguably forfeited" the argument "by making no more than a passing reference to it in their motion for new trial."
The court also rejected the argument on the merits, colorfully explaining: "Whether a noneconomic damages award of this size for a significant injury that risked—and still risks—the loss of a limb is closer to the infield or to the outfield wall, the award is still well within the proverbial ballpark."
Reliance on Unpublished Opinions:
Defendants argued that the damages award was "out of whack" with other cases involving crushed limbs. The court analyzed this issue as follows:
"Defendants point to several cases where the noneconomic damages award was substantially less than the $4 million award in this case; plaintiff cites cases where the award was substantially more (e.g., Cobb v. Cty. of L.A. (2019) 2019 Cal.App.Unpub.LEXIS 3084, *3-*6 [award of $9.8 million for past and future noneconomic damages due to crushed foot and leg]). If anything, this exercise in comparison confirms that the award in this case is within—and not beyond—the pale."
The Second District clearly relied upon an unpublished case here. Yet the court made no reference to California Rules of Court 8.1115, the rule stating unpublished cases "must not be cited or relied upon by a court or a party."
But of course, Shui itself is unpublished, so you may not rely upon its example for similarly citing unpublished cases.
This is another installment in a series of posts about ways appellate courts have cited unpublished cases, despite rule 8.1115. These cases might inspire ideas of how, with a little ingenuity, you too might bring up unpublished cases. But there is one thing you can bank on: if ever we find an example of someone being sanctioned for violating 8.1115, the perpetrator will not be an appellate justice. So follow these judges' examples, if at all, with extreme caution.
Approaching the 60-day deadline to appeal the trial court's dismissal of her action, plaintiff filed a notice of appeal. But the Court of Appeal in Lee v. Medrano (D2d5 Feb. 24, 2021) No. B305536 (unpublished), dismissed her appeal. Why? Because the dismissal was not signed, as required under Code of Civil Procedure section 581d, and thus not appealable.
While this is technically the correct outcome, I cannot fault the plaintiff-appellate here. Technically nonappealable orders are often deemed appealable, and in such cases, failing to appeal would prove fatal. It just so happens that for this particular type of nonappealable order, the courts have decided never to treat them as appealable.
(But, being a cynic, and averse to malpractice exposure, I would not bank on it.)
Read on:
After the Labor Commissioner awarded a residential care facility employee over $300,000, the facility's owner appealed the award to the trial court.
Plaintiff failed to file a Case Management Conference Statement, and also failed to appear at the CMC. Whoops.
The trial court issued an order to show cause re dismissal. But things still weren't clicking for plaintiff. Although plaintiff filed the CMC statement this time, she didn't file it 15 days before the hearing as required. She filed it on the same day as the OSC. Plaintiff did send counsel to appear at the OSC. But the trial court's minute order reflected there was "no Cause shown." The court dismissed plaintiff's case.
Here is where the appellate problems come in for plaintiff: The trial court dismissed the case via a minute order. And the minute order was not signed. The Second District held that, consistent with the plain language of Code of Civil Procedure section 581d, dismissal orders must be signed. No signed dismissal, no appeal. Appeal dismissed.
But I note that this hard-and-fast rule does not apply to other kinds of orders, where an unsigned minute order might be appealable. The rules are rather uncertain and give little comfort. For example, statements of decision ordinarily are not appealable, but the California Supreme Court says "Reviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits.” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901 (italics added).)
But courts have not taken Alan's requirement of a "signed" statement of decision too seriously. For example, Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 904 found an unsigned statement of decision appealable because the trial court "clearly intended the statement of decision to constitute its final decision on the merits." So the signature does not appear to be an absolute requirement.
On dismissals under Code of Civil Procedure section 581d, however, a signature is absolutely required. The published opinion of the Fourth District, Division Three, in Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1579, is instructive on this. As the Lee court does here, Powell explained how signed dismissals were not required prior to the 1963 amendment to section 581d, so cases predating that change are no longer applicable. But they are absolutely required now.
And Powell suggests a good tip if you find yourself having appealed an unsigned dismissal order: simply ask the trial court to issue a signed dismissal nunc pro tunc. After all, it is a ministerial act the trial court is obliged to perform. See a similar recent case discussed here.
Failing that, however, had the plaintiff come to me on the last day to take an appeal from this technically nonappealable order, I must say I would have advised the same course she took here. I would never be too confident the court is going to find an order nonappealable. You are better off assuming the order is appealable.
But don't feel too badly for the appellant here. After a brief trip back to the trial court to get her signed dismissal, she will be right back before the Court of Appeal.
In a first-of-its-kind case, California's Court of Appeal has authorized a "Wi-Fi Sickeness" case to proceed. Although such cases have been rejected in ADA cases in federal courts, the California court in Brown v. Los Angeles Unified School District (D2d8 Feb. 18, 2021) No. B294240 noted the broad "physical disability" protections of the California Fair Employment and Housing Act (FEHA) and California's liberal pleading standard made the difference here.
In a concurring opinion, Justice Wiley says he sees how we practitioners are using expert witnesses, and he doesn't like it. He urges the bar instead to consider using court-appointed experts.
If I may be permitted to disagree, I think this is not the right case for that. In a cause of action for accounting, by all means. But in a case involving still-emerging science, fact-finders need to be presented with what the parties think the most compelling hypotheses.
On a preliminary point concerning appellate record designation: The Court rejected the school district's challenges to the sufficiency of the appellate record. The district noted that, in plaintiff's challenge to the judgment of dismissal following the trial court's order sustaining the district's demurrer without leave to amend, the plaintiff did not include her original complaint, and the demurrer and ruling concerning that pleading.
This was of no moment because an amended pleading "supersedes the original complaint." (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1372.) "The record on appeal contains the operative FAC and LAUSD's demurrer; these are the pleadings necessary for our review."
On the other hand, if a plaintiff purports to make contradictory allegations in an amended pleading amounting to a "sham pleading," the defendant should be sure to designate those earlier pleadings in a respondent's counter-designation.
The (mis)use of expert witnesses:
Though concurring in the result, Justice Wiley anticipates this case will be decided on expert advocacy, a subject on which he has some opinions. Justice Wiley worries that experts-for-hire seeking recognition and promotion may be all too ready to peddle "junk science in the courtroom." For this proposition, Justice Wiley marshals law review articles written by law professors (presumably also seeking recognition and promotion) stating that expert opinions often are "made to correspond with the wishes or interests of the parties who call them," and that experts often become "incapable of expressing a candid opinion."
"The use of expert witnesses," Justice Wiley intones, "has run riot." Too often they are "a weapon of pure advocacy" that "can imperil the search for truth."
The better course: court-appointed experts under Evid. Code, §§ 730-732. "Preferably in consultation with counsel and avoiding ex parte contacts, the trial court can select and appoint an independent expert of unquestioned stature. The parties foot the bill. The expert can write a report, be deposed, testify, and be cross-examined, like any other expert. Crucially, the jury can learn this expert has been appointed by the court rather than hired by the parties." Although underused because parties "never suggest it," Justice Wiley notes that "the hard-working judges with experience 'reported a high degree of satisfaction with the services provided by the expert . . . .'"
Justice Wiley encourages the parties to consider this option in this case.
Curiously, however, Justice Wiley does not await the submission of independent experts on the matter before chiding plaintiff's claims. Justice Wiley "worr[ies] about giving any sort of green light to this unprecedented and unorthodox disability claim." He notes "we are the first court in the United States of America—a nation of over 300 million people—to allow a claim that "Wi-Fi can make you sick."" If this leaves any doubt whether he thinks this is a not a very good thing, Justice Wiley then juxtaposes the idea with the "fear of black cats."
But in fact, the majority opinion notes that, in this early stage of Wi-Fi technology, the science remains largely unsettled, and the long-term effects of Wi-Fi woefully understudied. The majority recounts that one environmental scientist mentioned during public comment for the district's Wi-Fi system that "she could not support URS's [the district's retained expert] conclusions about the safety of the new Wi-Fi system." The district's own medical personnel admitted they "were uncertain about any long-term effects."
We often forget how slowly science moves, and that there are few shortcuts. What many, including Justice Wiley, sometimes call "junk science" may just be part of the hypothesis and trial-and-error phases of the scientific method.
I suspect that, despite Justice Wiley's concurrence, the parties here will present the best expert hypotheses they can muster for their respective sides of this important issue of technology and public policy. Watch this space.
An order granting terminating sanctions may seem like the end of the world. It isn't. The judgment on the order granting terminating sanctions is the end of the world. Then, and only then, may you appeal.
In the employment dispute involved in Chung & Assocs. v. Mendoza (D2d1 Feb. 18, 2021) No. B297304 (unpublished), employer plaintiff sued erstwhile employees for breach of their employment agreements, including misappropriation of proprietary information. The employee defendants cross-complained.
Following some discovery disputes not described in the opinion, plaintiff moved for terminating sanctions. The trial court granted the motion, striking defendants' answers and their cross-complaint.
Without waiting for entry of judgment, defendants moved to vacate and set aside the terminating sanctions order under Code of Civil Procedure section 473(b). The trial court denied the motion to vacate.
Defendants then moved for reconsideration. That was denied, too.
Defendants appealed.
But where, plaintiff asked on appeal, is the appealable order? The Second Appellate District agreed there wasn't one and dismissed the appeal.
A terminating sanctions order is not appealable. Instead, "the losing party must await the entry of the order of dismissal or judgment unless the terminating order is inextricably intertwined with another, appealable order." (Nickell v. Matlock (2012) 206 Cal.App.4th 934, 940.) (The 7th Division of the Second District does not like the "inextricably intertwined" exception, as we discussed here, but the 1st Division here offers no comment on it.)
Nor does an appeal lie from an order denying a motion to vacate, unless the underlying order was itself appealable. "[A]n appeal may not be taken from a nonappealable order by the device of moving to vacate the order and appealing from a ruling denying the motion." ' " (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331.)
And "[a]n order denying a motion for reconsideration is not independently appealable." (Mack v. All Counties Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 937, fn. 1.)
Don't feel too badly for appellants. As in a similar recent case discussed here, all is not lost. On remand, they need simply to file a motion under Code of Civil Procedure 664 to have the court enter the default judgment against them. They should cite Yu v. Superior Court (Oct. 27, 2020) 56 Cal.App.5th 636 (discussed here), for the proposition that "Section 664 specifies that when, such as here, "the trial has been had by the court, judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision."”
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. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Practitioners know that amendments to pleadings are liberally allowed. But every now and then, they are denied. What can you do then?
An order denying leave to amend is not directly appealable. So that's out.
You could try your case on the existing complaint and appeal if you are unsuccessful. But in that case, it would be difficult to establish any error in denying leave was prejudicial – after all, the trier of fact rejected your evidence.
There's always a writ petition. Good luck with that.
The solution: Strategic voluntary dismissal to expedite an appeal.
In Raza v. Spain (D2d1 2019) No. B278096 (unpublished), plaintiff tried everything he could to get his claims before the trial court. Plaintiff sued for water damage to his home caused by defendant neighbor's negligent landscaping.
First, after his claim for punitive damages had been stricken as "vague and conclusory," plaintiff moved for leave to amend. The trial court denied leave to amend because plaintiff did not explain why the new allegations had not been raised originally (which is not really a valid ground). That order was not appealable.
Next, plaintiff filed a new complaint. Plaintiff moved three times to consolidate the two actions. All denied. Those orders were not appealable either.
Then the trial court granted defendant's motions in limine, excluding plaintiff's evidence. Also not appealable.
So here is what plaintiff did to get his case before the Court of Appeal. Plaintiff requested dismissal with prejudice to facilitate appeal. The trial court granted dismissal. Plaintiff appealed from that dismissal order.
And it worked.
Defendant argued a voluntary dismissal is not an appealable order. And defendant has case law to back him up. “It is well established that a voluntary dismissal under Code of Civil Procedure section 581 is not appealable. ‘The entry [of a request for dismissal] is a ministerial, not a judicial, act, and no appeal lies therefrom.’ (Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120, 108 Cal.Rptr. 782.)” (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975.)
Gutkin goes on to cite Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760–761, which states: “there is no kinship of a voluntary dismissal to a final judgment. A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review rulings on demurrers or motions made prior to the dismissal.”
But to every rule, an exception: "Ordinarily, a plaintiff's voluntary dismissal is deemed to be nonappealable on the theory that dismissal of the action is a ministerial action of the clerk, not a judicial act." (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012.) "However, appellate courts treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling." (Ibid.; see also Austin v. Valverde (2012) 211 Cal.App.4th 546, 550-551 [" '[M]any courts have allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial court, on the theory the dismissals were not really voluntary, but only done to expedite an appeal' "].)
Here, the Raza court reasoned, plaintiff exhausted all other remedies, and "made clear she [plaintiff's mother became the appellant when plaintiff passed away while the appeal was pending] was requesting dismissal in order to facilitate plaintiff's appellate rights. Thus, the dismissal was " 'not really voluntary' " (Austin v. Valverde, supra, 211 Cal.App.4th at p. 550), and plaintiff is entitled to appeal."
On the merits, the Raza court found the trial court abused its discretion in refusing leave to amend, because "[n]othing about the complaint indicated it was "incapable of amendment.""
Keep the Raza analysis and authorities handy if ever you have a trial judge preventing you from alleging key aspects of your client's case.
Appellate stays can play a significant role in changing the posture of litigation and the relative bargaining power of the parties. We discuss where to watch out for stays in anti-SLAPP cases, order involving attorney fees and costs only, injunctions, and order denying petitions to compel arbitration.
We also discuss the powerful exception to appellate stays in probate court under Probate Code § 1310(b). Appellants should be prepared to cite Gold v. Superior Court (1970) 3 Cal.3d 275, 281, which held that “the Legislature has determined that the exception should be operative only in a limited class of cases…. [T]he language of this statute strongly suggests that the exception applies only to the exceptional case involving a risk of imminent injury or loss."
Post-judgment motions also make an appearance: Motions for reconsideration, motions for new trial, and motions for JNOV. Once you file your notice of appeal and the stay under § 916 attaches, can you still proceed with motions for reconsideration, new trial, and JNOV? The answers are: No. Yes. And, Maybe.
Other topics discussed: bankruptcy stays, exhaustion of remedies, surety bonds, the little-known personal surety bond, how to require the appellant to increase a bond, discretionary stays, and writs of supersedeas.
Jeff and I also debate whether attorney fees awarded on anti-SLAPP motions are automatically stayed. Compare Quiles v. Parent (2017) 10 Cal.App.5th 130 and Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400.
Listen here:
Here are the cases discussed in the episode:
Episode 7 – This episode discusses stays and bonds in California appeals
You can either trust your own skills to diagram that sentence fragment, or you can take the Westlaw and start drilling through the notes of decisions. Announcer: 0:10
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Jeff Lewis: 0:25
Welcome, everyone. I'm Jeff Lewis. Tim Kowal: 0:27
And I'm Tim Kowal. 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. So welcome to episode seven of the podcast. Today we'll be discussing appellate bonds and stays. During appeals stays come up often in my practice, Jeff after appealability and timeliness issues, it's one of the first issues I cover with my clients stays can be absolutely crucial in some custody cases, for instance, where the California Courts might lose jurisdiction, or when they're when there are injunctions or other orders that could destroy a business or other subject matter that would render the entire appeal moot. And in the case of money judgments, obviously, the appellant is not anxious to appear at judgment debtor exams or have their property levy upon what about you, Jeff, for you, you come across a lot of bond and stay issues in your practice. Jeff Lewis: 1:34
I do outside the context of slap cases, bonds come up quite a big quite a bit. And I agree that stays are a big issue and frequently can change the calculus in deciding, you know, should we file an immediate return as opposed to a more traditional appeal, or whether to even appeal at all? If there's going to be enforcement pending the appeal and there's no effective way to stay it that could end an appeal effectively before it even starts? Tim Kowal: 1:59
Yeah, I've got a I've got a story later on that I'll share about a stay that I effected that that I think played a large role in getting a pretty darn good settlement for my client. So let's let's start by talking with some of the about some of the basics on appellate stays. So just to start with the good news for appellants who have judgments against them. The good news is that the default rule is that judgment enforcement is stayed pending appeal. And the operative statute there is Code of Civil Procedure section 916. The bad news for appellant is that the statute is an open invitation to argument in language that might have been drafted by Thomson Reuters, perfecting the appeal stays proceedings in the trial court upon the judgement "or upon the batters embraced therein in or affected thereby," so that sentence fragment gives us our mantra for determining whether there's a stay embraced therein or affected thereby and you can either trust your own skills to diagram that sentence fragment, or you can take to Westlaw and start drilling through the notes of decisions. So despite a nice statute providing for a general rule that an appeal stays judgment enforcement, and further trial court proceedings, in my practice, very few judgments are automatically stayed on appeal. Jeff Lewis: 3:15
Right. The big big exception that swallows the automatic stay rule is money judgments, a judgment for money is not automatically stayed on appeal. That's code of civil procedure section 917. point one. Instead, you have to post a bond. And there are several other exceptions. The automatic stay rule contain that code of civil procedure sections 917 point one through 917 point nine. Tim Kowal: 3:38
Right It's important to review those those statutes very carefully to determine whether your judgment that you're appealing from falls under one of them so you can determine what the right step is for whether you have an automatically stayed judgment or whether you have to take some steps steps to perfect the state. So some of the types of judgments and orders that do entitle and appellant to an automatic stay on appeal include anti slap orders, orders for costs and fees only, although that's subject to an exception for family law attorney fees Family Law Attorneys get to collect whether or not there's an appeal, the rest of us have to wait it out. injunctions are automatically stayed but only if they are mandatory in nature, a mandatory preliminary injunction is automatically stayed on appeal and orders denying petitions to compel arbitration are also automatically state Jeff Lewis: 4:26
Right and on the other hand, judgments and orders that are expressly not stayed include money judgments money judgments are not stayed without posting a bond orders to remove or remediate hazardous substances orders to assign, deliver or sell or lease or sell real or personal property receiver orders or right to attach orders, custody or visitation orders, Family Law, Attorney fee orders and orders allowing inspection of corporate books and records in orders closing a building deemed to be a nuisance are all examples of judgments and orders that are expressed not stayed, Tim Kowal: 5:01
Right and even when judgments are otherwise automatically stayed, the trial court may impose a bond requirement for other kinds of orders. The kinds of orders where the trial court may make a stay conditional include orders where the appellant was found to possess money or property belonging to the respondent orders where the appellant is required to perform some act for the respondents benefit or orders where the judgment is solely for costs under code of civil procedure section 917. point nine. Jeff Lewis: 5:30
Yeah, but touching on up on the probate realm. The general rule is that orders under the probate code are also automatically state pending appeal. That's per probate code section 1310. subdivision a. But there is an important exception, the legislature has carved out a safe harbor exception that validates certain actions of fiduciary regardless of the result of any appeal under probate code section 1310 subdivision B. Quote, for the purpose of preventing injury or loss to a person or property close quote, a trial court may direct a fiduciary to act, "as if no appeal is taken", all acts of fiduciary ticket pursuant to those directions are "valid irrespective of the result of the appeal," The effect and import of a probate code section 1310 b order was recently confirmed by the California Court of Appeal and East Bay Regional Park District vs. Griffin a 2016 case which dismissed is moot to appeal seeking to undo the acts of a fiduciary made pursuant to a probate code section 1310 b order. So if you are the prevailing party in a probate action, it may be to your advantage to get the court to issue the order pursuant to probate code section 1310 B. Tim Kowal: 6:40
Yeah, I I think the probate code section 1310 B is a is a really critical statute that practitioners should be aware of when practicing and probate if you're the appellant, you obviously want to avoid orders under Section 3010 be at all costs. And you should be prepared to point to the Supreme Court decision in gold versus Superior Court. That's a 1970 case. 3 Cal. 275. All case citations in the podcast are contained in the show notes. So in gold dealing with the statute virtually identical to 1310. b, the supreme court concluded that, quote, the legislature has determined that the exception should be operative only in a limited class of cases. And the language of the statute strongly suggests that the exception applies only to the exceptional case involving a risk of imminent injury or loss. So that's the good news in trying to avoid a ruling under 1310. b. It's not supposed to be overused. It's only for exceptional cases involving imminent injury or loss. Jeff Lewis: 7:44
Right. I wonder, by the way, if that determination 1310 (b) determination is itself subject to appeal or attack by way of read. I suppose that's a subject for a different podcast episode. Tim Kowal: 7:57
And I wouldn't put it past them. But yeah, that would be that would be dooming, because it would foreclose the ability to appeal at all. Jeff Lewis: 8:08
Alright, as a good rule of thumb concerning stays on appeal, if you're in doubt whether the order is stayed a good question to ask is this. If the judgment or order were to be enforced, would it moot the appeal, the stay rule is designed to protect the jurisdiction of the Court of Appeal. So if you appealed an injunction that required you to tear down a building or structure, for example, and you went ahead and tore it down, there would be no meaningful remedy remaining for the Court of Appeal to grant. That is why mandatory injunctions are stayed on appeal. Tim Kowal: 8:37
Alright, so now before we jump into how to affect the stay, let's consider a couple of ways how affecting the stay prematurely could wind up wrong footing your own case. So for example, if you are filing post judgment motions or planning to and appellate stay might prevent your emotion from going forward. Right. And there are three common post judgment motions and motion for reconsideration. motion for new trial and a motion for JNOV. And once you file your notice of appeal and the stay under Section 916 attaches, can you still proceed with motions for reconsideration new trial and JNOV? The answers are no, yes and maybe. Right. That's because the trial court loses jurisdiction to reconsider an order once it's been appealed. That's Young v. Tri-City Healthcare District 2012 case only one court at a time has jurisdiction over an order. Jeff Lewis: 9:32
But a new trial motion is treated a little differently from a reconsideration motion, because a new trial motion is considered collateral to the order on appeal. So you can proceed with a new trial motion even after you filed the appeal. That set forth in the Varian Medical Systems Inc versus Delfino case from 2005. And for JNOV motions, there's a split of authority. Some courts consider a JNOV motion to be like a reconsideration motion and the trial court may not grant such a motion pending appeal. This is the rule in the fourth district and other courts consider a JNOV motion to be collateral like a new trial motion, meaning the trial court may rule on and granted janno v motion even after the appeal is filed. That is the rule in the first district. Tim Kowal: 10:17
And I know that the first district case in the Foggy case Foggy v. Ralph F. Clark and Associates, I thought that the court seemed to be at a loss as to why a new trial and Jane Doe v motion should be treated differently. And I tend to agree with that analysis. I think whatever rule applies to one ought to apply to the other. Jeff Lewis: 10:39
Well, have you had a situation where you needed to appeal right away to affect the stay, but you wanted to preserve your right to proceed with the JNOV motion? Tim Kowal: 10:48
Yeah, I did have that situation. A few years ago, I had a client where a money judgment had been entered against him. And the plaintiff had been very aggressive and had begun judgment enforcement efforts already, before we had even filed the appeal. So my client obtained a bond, and wanted to get the stay imposed right away by filing the appeal. But we also wanted to bring a JNOV motion. And I was concerned about about some of these cases that suggested that a JNOV motion might be for close to me, once I filed the notice of appeal. So the solution was to file a motion in the trial court for a temporary stay under code of civil procedure section 918. I think every attorney ought to have a 918 motion template in their file ready to go. In this kind of situation. Section 918 empowers the trial court to impose a temporary stay for a limited time period, up to but not exceeding 10 days after the deadline to take an appeal and the courts power to enter a 918 temporary stay applies whether or not the appeal has actually been taken or or will be taken. So we went in an X party and got a temporary stay. The court ultimately denied RJV motion, but because I think because of the weight of some of the issues we raised, and they were obviously going to be raised in our appeal, which we had previewed in our post judgment motions, coupled with our effecting a stay and enforcing the plaintiff to realize that he'd have to wait two years to collect, we were able to get the plaintiff to settle for close to half the judgment amount. So knowing your way around these procedures can create very valuable leverage for your client. Jeff Lewis: 12:24
Yeah, and I suppose having a 918 motion template would be handy. Could you send me a copy of yours? Yeah, I'd be happy to. Alright, let's let's briefly touch on some other strategic considerations attorneys should consider before seeking a stay. Let's start with a common case of staying a money judgment while posting a bond stays judgment enforcement, it does not stop interest from accruing at a very steep rate of 10%. So before paying the premium costs of a bond and carrying 10% interest, make sure to consider the possibility of simply paying the judgment, right, Tim Kowal: 12:55
I always consider this option with my clients. And while they sometimes go that route, it's somewhat rare. Unfortunately, getting the cash together is always tends to be difficult. And there is always the hope that the appeal will ultimately make that unnecessary. But if you are going to satisfy the judgment, make sure that it can't be construed as a waiver of any appellate rights. To do that, I'd like to make sure I like to wait for some kind of evidence that judgment enforcement is imminent or already underway. And then I'll send counsel a cover letter, along with the check and satisfaction of the judgment stating that the payments being made in light of the pending judgment enforcement efforts and not as a waiver of any appellate rights. Jeff Lewis: 13:40
Yeah, good advice. Good advice. If the judgment involves the disposition of or detriment relating to the property during the appeal, if the property is damaged or loses income, your client could be liable for that, and it will come out of the bar and the court require as a condition of any stay. Tim Kowal: 13:57
Yeah. And on the other side of that coin, if you if you're the appellant and you do not get a stay pending appeal, and the respondent proceeds to misuse the property, or worse to sell or transfer it, you may face an uphill battle getting compensation for that loss if you do achieve reversal on appeal. And you have no ability to force the respondent to post a bond for that loss in advance. Jeff Lewis: 14:20
Oh, good point. All right, let's discuss some of the common types of stays bankruptcy stays very common and it's automatically imposed under 11 USC section 363 when appellant files for bankruptcy. What happens in multi defendant cases. Jeff, if you know where only one of the judgment debtors files bankruptcy? Well, the way it's supposed to work is the state only applies to the bankruptcy debtor, the debtor itself, and the appeal is to codefendants is not stayed. I've not had in my experience that rule applied correctly. Oftentimes, in my experience, trial courts or Courts of Appeal are overly eager to stay once they see the bankruptcy word, but there may be exceptions where the bankruptcy defendant is indispensable to the case, in which case, the entire case will also be stayed. Tim Kowal: 15:10
Yeah. And also note that whenever imposing a bankruptcy stay, or you're imposing any other type of stay, you as counsel have a duty to notify the court and the other parties of the stay. That's California rule of court 3.6 50. And there is a mandatory Judicial Council form to use for that purpose. Jeff Lewis: 15:30
Yep. But beware, however, a bankruptcy stay does not stay the deadline to file a notice of appeal. Tim Kowal: 15:37
That's right. So even if your client decides to effect a stay by filing bankruptcy, you still need to plan to timely file your notice of appeal, and another exception to notice that the bankruptcy state does not suspend the District Court of Appeals power to sanction debtor or counsel for abusing the appellate process. This falls under the bankruptcy codes exemption to enforce government police and regulatory power under 11 USC 362. Okay, so assuming you are appealing a money judgment and your client is not going to file bankruptcy. The simplest and most common way of staying enforcement of a judgment is by posting a surety bond. surety bonds are governed by by statute starting at go to civil procedure section 990 5.1 20. And using a bond agent is usually the the simplest way to ensure compliance with the bond statutes, the annual premiums that the surety will charge on these admitted surety bonds are usually about a quarter of a percent to a percent or sometimes more. The surety usually requires full collateralization of these bonds. But But not all the time, I've had a case where a client had sufficient net wealth and the bond was small enough so that the surety did not require posting of any collateral. Jeff Lewis: 16:51
And is there any deadline to post a surety bond? Tim Kowal: 16:55
No, there there's no statutory or other kind of deadline, the only deadline is a practical one, you have to ask yourself, How soon do you want to stop the judgment enforcement efforts against your client? What can be tricky is setting the correct amount of your bond. on its face, this seems easy, the amount is 150% of the amount of the judgment. So it's, you know, you just break out your calculator. But in many cases, a judgment is followed by a cost award, including fee awards. And although costs and fee awards standing alone do not need to be bonded. If you want to stay a money judgment on appeal, you have to also post a bond that includes the total investment Dales of our rentals. We'll put that in the show notes. Jeff Lewis: 17:38
Okay. And what about when a fee award is entered after the judgment has already been appealed and a bond posted? How can the respondent force the appellant to file and increased bond? Tim Kowal: 17:49
By enforcing the judgment this will force the appellant to file another bond or to seek other relief? A second way is for the creditor respondent to to file a motion for an order to increase the bond or undertaking and bond are undertaking in my experience are just completely synonymous. I don't believe there's any if there ever was any distinction between the two. I don't know that there's any any meaningful distinction, a distinction in 2020. The court has discretion not only to include post judgment cost orders, but the court may also include post judgment interest as well. That's something the statutes do not otherwise require. So if you are the appellant, it's a good idea to post a bond for post judgment orders voluntarily and immediately, you could get stuck with an obligation to post a bond that includes not only the post judgment fee and cost orders, but post judgment interest as well. And that's the case for that is grant versus Superior Court. And we'll post that in the show notes. Jeff Lewis: 18:48
Yeah, it is also worth noting that the order fixing the amount of the bond is itself an appealable order. I've actually dealt with that, as a respondent. Good luck with getting review of that before the issue is moot. And it's a discretionary ruling. So good luck getting that overturned on appeal. Tim Kowal: 19:04
Right. Yeah. If you think you need to raise that you better look look hard at whether you should raise it in a writ petition. There is also a little known alternative code of civil procedure section 995 point 510. Under that statute, any California resident who owns real estate in the state, and who has a net worth of twice the amount of the judgment may simply sign an affidavit agreeing to be liable for the judgment in the event it's affirmed on appeal. It's a good alternative for you as an appellant if it's available, because it eliminates the need to put up collateral with an admitted surety and you can avoid the bond premiums. On the other hand, of course, it can be difficult finding someone to sign on to a money judgment obligation. Have any of your clients ever used a personal surety bond, Jeff? Jeff Lewis: 19:50
Tim, one of the reasons I enjoy doing this podcast with you is I always learn something new and I can't say I was aware of this option. Tim Kowal: 19:57
I wasn't aware of it until a couple of years ago. Since then I've I've intrigued a lot of clients with the with the possibility, but after after pounding the pavement looking for personal surety to sign on to it that I've not found any clients who are successful in doing so, I can't find one person who can satisfy the 200% net worth requirement, you can use multiple personal charities if their combined net worth is 400% of the judgment. So under this procedure, the judgment debtor can even transfer his own property to a spouse or third party for the purpose of getting up to that 400% net worth requirement. And the question of whether that might be a fraudulent conveyance was was answered in the negative in the very interesting case of booze, booze, Gaya versus Lee ASCO, Sierra Grove, it's a 1994 decision. And it held that that such a transfer was not fraudulent because the transfer was for the benefit of the creditor because obviously it was as a means to posting a personal surety bond that would guarantee the respondents recovery of the judgment in the event of a affirmance on appeal. Interesting. Jeff Lewis: 21:09
All right. Let's shift gears and talk about discretionary states. There are some orders that can only be stayed by trial court order. These include Family Law orders involving custody and visitation, unlawful detainer orders inspection of corporate records, nuisance abatement, enclosures of places adjudged a nuisance. discretionary stays may also be ordered in appeals of orders denying disqualification of counsel, Tim Kowal: 21:34
Right and these discretionary stays may be sought by notice motion or by ex parte application. Okay. And finally, there is the most impressive sounding of all stays, and that's the writ of supersedeas. a writ of supersedeas is simply a stay that's issued by the court of appeal, we've covered a lot of stays that are imposed automatically by operation of law and an automatic stay sounds nice and in theory, but as lawyers are paid to disagree, disputes tend to arise pretty frequently about whether an automatic stay applies. So if the parties can't agree that one of these automatic stays applies, and if the trial court also does not agree that a stay applies, then your next move is a petition for writ of supersedeas in the court of appeal to to break the tie in the statute to look for that for a writ of superseding This is go to civil procedure section 923. And take a look at the state of Dabney case that confirms that in circumstances where the respondent or the trial court are not complying with what you believe to be an automatic stay, the appellant has an absolute right to seek supersedeas in the court of appeal. Jeff Lewis: 22:41
You know, I've never actually been involved directly in a case involving a supersedeas. I've only watched you do it from afar. The necessary elements for the Court of Appeal will consider supercilious are a pending appeal and exhaustion of remedies and the trial court. Tim Kowal: 22:58
And I've seen the Court of Appeal deny supersedeas for failure to exhaust remedies in the trial court, even when it was abundantly clear that the trial court was not going to grant a stay. So don't depend on arguing futility, get an order from the trial court denying a stay before seeking supersedeas in the Court of Appeal because the Court of Appeal loves to deny any kind of red and cooling supersedeas if there's still some kind of remedy that might be available to you in the trial court. Jeff Lewis: 23:26
All right. And once you are procedurally poised for supersede yes the factors the Court of Appeal considers in granting the writ r1 irreparable harm to lack of harm to the respondent in three, whether the appeal raises substantial questions, in other words, a likelihood of prevailing Tim Kowal: 23:45
And most attorneys know that that writ petitions in general carry a very low chance of prevailing, but that's usually because the threshold showing of need for immediate relief is seldom met in repetitions, but petitions for writs of supersedeas generally do meet that standard. So the relief is more likely than for ordinary writs. And so whether you're entitled or you're going to get a supersedeas granted, really will be just determine based on the legal merits of your rip. So let's move on to some recent cases. Jeff, so for our recent case, I thought we discuss the 2017 fourth district decision in Quiles v. Parent . That case deals with the situation that many attorneys will face at some point or another. And that is what do when a small money judgment is dwarfed by a very large award of fees and costs. Can you get an automatic stay of the fee and cost award? because as we've covered here already money judgments are not automatically stayed on appeal, but costs and attorney fee awards are automatically stayed. So the code of civil procedure helps us a little bit here at section 917 point one subsection D it provides that costs quote shall be included in the The amount of the judgment and quote for purposes of the bond and stay analysis, but what happens if the defendant simply pays the money judgment portion? Is the is the cost and fee award automatically stayed at that point? What happens to the you know, what happens to it? Is that bond still required to effect the stay pending the appeal? Or is the cost award, which is now standing alone without any unsatisfied money judgment to attach to automatically stayed? Jeff Lewis: 25:27
Yeah, those are the questions that the Four/Three answers in the Quiles or Quiles.... Tim Kowal: 25:33
I call it Quiles. But I'm not definitive on that Jeff Lewis: 25:37
I am glad you pronounced it. First. Here are the facts, facts of Quiles. The plaintiff prevailed in her wrongful termination action under the federal Fair Labor Standards Act. And she obtained a judgment over $200,000. And as the Fair Labor Standards Standards Act provides a right to attorneys fees, she obtained an award of fees and costs of almost $750,000. Right, so we have a $200,000 judgment, which is not a little bit but it's it's fairly dwarfed by a $750,000 fee and cost award. Right, which is not that uncommon. I've got a case right now where there's a $50,000 Award of damages and about a half million dollar award of fees and costs. And when you have that situation when it happens, the defendant may be motivated to reduce the fee award and stay enforcement in the meantime, which is exactly what the defendant did here. The defendant parent appealed the fee and costs awards only. The defendant did not appeal the underlying judgment, and instead defendant tendered payment of the entire amount of the underlying $200,000 judgment and the plaintiff files continued enforcement efforts on the fees and costs award. After the trial court denied defendants motion for a stay The Court of Appeal granted supercilious money judgment exemption, excuse me, there's an exception to the rule, imposing an automatic stay pending appeal. But a judgment for cost alone was held is not an exception to the exception. And the four three set out a bright line rule that all costs awards are subject to the automatic stay of Section 917 point one subdivision D, except for costs under Section 998 and section 1141 dot 21 which are expressly accepted in the statute. Tim Kowal: 27:26
You know, what stuck out to me about Quiles is that it It tends to disagree with a California Supreme Court holding on this on on a very similar question. The 1992 opinion in bank of bank of San Pedro versus Superior Court had set out a factor based analysis rather than a bright line rule like Wiles uses. In Bank of San Pedro, the Supreme Court said that costs are stayed only if they are, quote, routine costs, and quote unquote non routine costs, on the other hand, are to be treated as money judgments, which are not automatically stayed on appeal. And one big example of non routine costs that I'm sure you're aware of Jeff, our fee Awards on anti slap motions, basically Quiles reasons that the routine versus non routine cost analysis in the 1992 Bank of San Pedro decision was superseded by the 1993 legislative amendment to the cost statutes and files holds that that that amendment supports its bright line rule. Jeff, I think I agree with Wiles. But this would mean that fee Awards on slap motions might be automatically stayed on appeal. Now, what do you think Jeff Lewis: 28:38
I wouldn't hold your breath there? I will never see any court of appeal finding the fee awards from slap motions are automatically stayed. That would be contrary to this both the spirit and letter of the slap law, which afford litigants, you know, full complete and speedy relief. There's a great decision Dowling v. Zimmerman from 2001 that I quote to my opponents in the anti slap proceedings, when they file a notice of appeal, and I proceed to ask for payment of fees and they say stayed pending execution stayed pending appeal. I point them to the Dowling v Zimmerman case. So I don't expect any change in the law here. Tim Kowal: 29:14
Well, I think Quiles does reference Dowling. It doesn't really take up the merits of that question and leaves it to attorneys like us to and for future courts to decide how that dispute is going to come out. But yeah, it's suggested to you maybe we we take out this in a in an article somewhere and we could take opposing sides on it, because I think any court that takes us up and tries to answer that emotions are not stayed on appeal is going to have to pretty roundly disapprove with the coils analysis. So let's get to some recent the other recent cases on unrelated topics. The first that I noted was the Provost versus your mechanic case, which which I think set out a pretty important employment law holding and that is that an employee cannot be compelled to arbitrary individual claims. If the employee is also asserting paga claims, and the fourth district first division, in an opinion just last month in October, involved an employee alleging misclassification and Wage and Hour claims, both individually and as a packer representative, and the court rejected the employer's motion to compel arbitration. The the fourth Appellate District explained that the that the state is the real party in interest in all paga claims, and the state never consents to arbitration. So the threshold question of whether the plaintiff had standing as an aggrieved party, or as an aggrieved employee to bring the representative package claim may not be split and arbitrary that separately. I understand from a colleague who brings a lot of these claims that this is a major development. So employees, employee, employment attorneys should be sure to read the Provost versus your mechanic decision. Jeff Lewis: 30:58
Yeah, check that one out. I don't do that area law. That sounds interesting. Another another recent case reminds practitioners seeking sanctions in the court of appeal that they must file a separate motion in Lang v. Petaluma Hills Farm LLC, which is a November 20 2020 case, we'll put in the show notes, the trial court granted fees against the defendant for filing a frivolous slop motion. And the District Court of Appeal affirmed the trial court's award of fees and seemed poised to grant fees again for taking a frivolous appeal, but declined to do so because the sanctions request was not made in a separate motion. Another and by the way, an interesting procedural note there. If someone files a motion for fees in the court of appeal against you, did you know that under the rules, you're not allowed to file an opposition to that request for fees unless invited to do so by the court? Tim Kowal: 31:49
I am aware of that rule. I have seen attorneys flout that rule with no repercussions whatsoever. So Jeff Lewis: 31:57
Yeah, it's always an uncomfortable position to be in of either allowing an accusation of sanctionable conduct to stand on challenge or to violate the rules to meet that challenge. It's it's very frustrating, right. Another recent case also involves sanctions for frivolous anti slap. This was the Changsha Metro Group Company vs. Xufeng case that will put that in the show notes. And that case held that you can seek sanctions for frivolous anti slap motion. And even though that code of civil procedure section 120 8.5. It sets forth a 21 day safe harbor provision. This court had trouble reconciling, seeking sanctions for frivolous anti slap motion, and the Safe Harbor provision of CCP 120.5. So the upshot was that you can seek sanctions when opposing an anti slap motion on the grounds that it's frivolous, and you do not have to comply with the 21 day safe harbor provision notice. Tim Kowal: 32:56
Yeah, I found this I found that case surprising because I know the courts have wrestled quite a bit about the interplay between 128.5 and 128.7, whether the Safe Harbor requirement applies and the legislature's gone back and forth a little bit, but I thought it was fairly well settled that you had to comply with the Safe Harbor come hell or high water, but we found an exception. Another case, another case out of the fourth district Third Division in Buechler vs Butker provides a good reminder that fees for judgment enforcement are available even for attorney efforts that were not successful. So remember that when you're trying to when you're filing your motion to recover judgment enforcement fees, you don't have to limit yourself to for fees for actions that third Court of Appeal issued another unpublished decision in mirallas vs. Harris, that was interesting. It reminded the case caught my eye because the appellant narrowly avoided having her appeal dismissed because she had checked the wrong box on her Judicial Council notice of appeal form. I recall in that in that episode of the podcast, you would mention that you don't use the Judicial Council form. And after reading this nailbiter case, I decided that there's no utility for me and continuing to use it either. The checkboxes on those forms are just completely unnecessary that the rules of court and the CCP don't require don't require that to be in the notice of appeal. But the courts do pay them a lot of attention and they they can wind up dismissing your appeal. If they don't like what box you check. Yeah, let me just put an asterisk on that practice tip. I usually do not use the Judicial Council form notice of appeal for complicated appeals with a complicated set of facts, but for something involving maybe a slap motion order, I will use it. According to a survey conducted by the clerk of the Ninth Circuit, an overwhelming 86% of lawyers who have given oral arguments remotely thought that the level of engagement with the judges was the same or better than in person proceedings. The lower percentage that is still a majority rated experience to be overall positive with 62 percent rating the experience similar to or even better than in person proceedings, the remaining 38% rated it worse. Nonetheless, most attorneys were reluctant to support future remote arguments, unless in the case of a pandemic, or where opposing counsel was also appearing remotely. Only 13% would appear remotely again, without those conditions, and we'll put a link to the show notes. link to the survey in our show notes. Yeah, I thought that survey was interesting, because it's suggested people attorneys were had very positive experiences of the remote oral argument process, yet they still seem to be holding their breath for the time for for normalcy to return and, and to return to in person. oral arguments. Jeff Lewis: 35:43
Yeah, yeah. You know, I just concluded a two week trial via zoom. And if I had to do it over again, I think I would do it by zoom again, unless I knew that everybody else was going to show up in person. So I guess I'm in agreement with a minority of people who responded to the survey. Tim Kowal: 36:01
Yeah, well, that wraps up this episode. If you have suggestions for future episodes, please email us at cow podcast@gmail.com which is CALPodcast@gmail.com. In our upcoming episodes, look for more tips on appellate practice. Announcer: 36:34
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at calpodcast.com. That's calpodcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
