If you are making or considering a CCP 998 offer in an employment case, note the current split of authority. In some cases, an employee making an unsuccessful overtime claim could be made to pay employer's costs under CCP 1032. That rule is adopted in the Fourth District, Div. 2. But the Second District, Div. 3, and the Sixth District reject that rule.
And now so does the Fourth District, Div. 1 in Cruz v. Fusion Buffet (Cal. Ct. App. - Nov. 10, 2020), concluding Labor Code 1194, governing minimum wage and overtime claims, "is intended to operate as a one-way fee and cost shifting statute." Thus, there is no role for CCP 1032 to play. And as CCP 998 offers only augment costs under CCP 1031 and 1032, they don't apply.
In the Cruz case, employee sued his employer restaurant and its two owners on an alter ego theory. The owners each made 998 offers for all of $1 each. Cruz prevailed against the restaurant, but got zilch against the owners.
Wells Fargo's attorneys moved the trial court, unsuccessfully, to continue a San Diego trial at the outset of the pandemic, and petitioned the Court of Appeal, again unsuccessfully, for a writ. Now the Supreme Court has granted review on the question:
"During the current pandemic, may a trial court compel participation in a large in-person trial—with 20 or more persons in the courtroom—in a civil case in which there is no calendar preference and no exigency requiring an immediate trial?"
Skimming the petition, it strikes me as calling for a legislative remedy, i.e., new rules for trial procedure for the foreseeable future.
As for a judicial remedy, I have an easy solution: Stipulate to a pro tem judge. Phase 1 of this trial is for declaratory relief, meaning, no jury. Send this out to a JAMS or ADR facility and have a socially-distanced or even a Zoom trial according to preference.
We just did this for a trial, and is working great so far. Let me know if you need the forms.
Another non-conference-day PFR ruling shows Supreme Court interest in pandemic trial practices
For the second week in a row, the Supreme Court uncharacteristically ruled on a petition for review on a Friday, a non-conference day. And, like last week’s decision, yesterday’s order signaled the court’s interest in having the Courts of Appeal opine about trial procedures during the COVID-19 pandemic.
1. During the current pandemic, may a trial court compel participation in a large in-person trial—with 20 or more persons in the courtroom—in a civil case in which there is no calendar preference and no exigency requiring an immediate trial?
2. If such a trial is permissible, may the trial court, in an effort to comply with social-distancing requirements, exclude from the courtroom parties to the litigation, in violation of Evidence Code section 777 and of the due process requirements of the state and federal constitutions?
Following the Fourth District, Division One, Court of Appeal’s summarily denial of a writ petition, the Supreme Court granted review and transferred the case back to the appellate court with directions to issue an order to show cause why relief should not be granted. The Supreme Court also kept in place a stay of trial proceedings it had issued three days after the petition for review was filed.
“Murphy's law applies to trial lawyers as well as pilots. Even an expert will occasionally blunder.” Unitherm Food v. Swifteckrich, 546 U.S. 394, 407 (2006) (Stevens, J., dissenting).
Senior Judge Silberman of the DC Court of Appeals is having none of your alphabet-soup acronyms:
"The Agency and thereby the parties regularly use the acronym “ILEC” for Incumbent Local Exchange Carriers, and “CLEC” for Competitive Local Exchange Carriers, but we prefer the use of the English language and deplore the practice of using acronyms unknown to the general public. Thus, we use “incumbents” to refer to what the parties call “ILECs,” and “insurgents” to refer to what the parties call “CLECs.”"
I cannot tell you how happy this makes me. I find few things more repellent than looking down-page upon forests of menacing, unpronounceable non-words. So do judges. That is a feeling in your readers you want to avoid at all costs.
Comptel v. Fed. Commc'ns Comm'n, No. 19-1164, at *3 n.1 (D.C. Cir. Nov. 3, 2020). https://lnkd.in/dHHVHqP
19-1164-1869487.pdf
The 10th Circuit sanctioned the attorney of a homeowner tenaciously trying to avoid foreclosure on her home. The court noted that "an appeal may be frivolous as filed or as argued." An appeal frivolous as-filed is one where the decision is "plainly correct" so there is no genuine appealable issue.
But an appeal may be genuine, but just frivolously argued, and thus subject to sanctions. "A party may argue an appeal frivolously by “mak[ing] no attempt to address the elements requisite to obtaining reversal,” advancing “irrelevant arguments,” “failing to explain how the lower tribunal erred or to present clear or cogent arguments for overturning the decision below,” and “cit[ing] inapplicable or irrelevant authorities.” "
Here, the court sanctioned the attorney, but not his client, because the client was not responsible for the attorney's poor briefing. The court noted that "parts of his briefs “read[] as though [their] author simply has not read the order he is appealing.” "
The court also sanctioned the attorney for double the bank's cost of preparing an appendix. Attorney had only included docket entries, the complaint, and the district court's order, which was "wholly inadequate."
In fairness, I have seen much worse arguments than this.
On behalf of his AirBnB client, attorney files suit against AirBnB employees in McCluskey v. Henry (D1d3 Nov. 2, 2020) no. A158851, but the case is stayed and sent to arbitration at AAA. Through a clerical error, AAA doesn't acknowledge receipt of defendants' arbitration fees, and administratively closes the case. AAA then acknowledges the error and asks plaintiff if she wants to reopen the case.
Instead of responding in the affirmative (or at all), attorney rushes back to court and files a motion to lift the stay and resume litigation. The court denies it. Defendants file a motion to sanction attorney, arguing the motion to lift the stay was frivolous and in bad faith, and the court grants that, in the amount of $22,159.50.
Attorney appeals. Incidentally, client appeals, too, but she has no standing regarding the sanctions award against attorney, and the order refusing to lift the stay pending arbitration is not an appealable order because it is not a final judgment.
As mentioned, I've seen attorneys make worse arguments than this. But on appeal, attorney's arguments did not get a lot better. He argued the trial court lack jurisdiction to sanction him in a matter subject to arbitration. (Recall: attorney had filed his frivolous motion in the trial court.) Attorney argued he didn't know AirBnB was paying its employee-defendants' fees, and that attorney cannot be made to pay that because the defendants did not "incur" them. And attorney argued defendants didn't really need to file an opposition, and didn't "prevail" when his motion was denied. And more like this.
The First Appellate District states that attorney's appeal "comes right up to the line of sanctionable conduct" by "forcing us to examine [his] myriad arguments before rejecting them as having no factual or relevant legal support." The Court notes that arguments such as these cause a "'useless diversion of this court's attention' from '[o]ther appellate parties, many of whom wait years for a resolution of bona fide disputes.'"
But the Court mercifully refrains from sanctioning attorney here, as appellate sanctions "should be used most sparingly to deter only the most egregious conduct," citing Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651.
And that, attorney takes away in a published decision.
Do not take the common-interest privilege for granted if you represent a client in multiple-party litigation.
In Finjan, Inc. v. SonicWall, Inc., Case No. 17-cv-04467-BLF (VKD), 2020 U.S. Dist. LEXIS 128725, at *3-4 (N.D. Cal. July 7, 2020), Finjan held board meetings attended by a representative of Cisco, an investor who had a contractual right to observe Finjan's board meetings. Finjan claimed privilege protection based on the common-interest doctrine for documents disclosed during its board meetings. But the court rejected the common interest argument. The court held that Cisco’s status as an investor right a right to observe board meetings "did not create a common legal interest.” Id. at *11. Finjan and Cisco also did not anticipate joint litigation. Id. Instead, Finjan's “voluntary disclosure waived whatever attorney-client privilege otherwise attached to these materials.” Id. at *12.
But before you rush to create a joint-defense agreement to cover your client, consider a few things.
A joint-defense agreement should always be in writing and reviewed with and signed by the client. United States v. Stepney, 246 F. Supp. 2d 1069, 1080 (N.D.Cal. 2003). An oral joint-defense agreement might be enforceable, but I would not count on it.
But when you consider a joint-defense agreement, beware that the Ninth Circuit has found this "establishes an implied attorney-client relationship with the co-defendant," which "can also create a disqualifying conflict." United States v. Henke, 222 F.3d 633. In Henke, the agreement apparently did not contain a waiver of the right to seek disqualification of counsel or the right to object to the use of joint-defense materials.
But see Stepney, 246 F. Supp. 2d 1069 (joint-defense agreements merely create a duty of confidentiality, which is limited to information actually shared within the group; the agreement does not create a "true" attorney-client relationship).
The Stepney court took a uniquely proactive stance, requiring joint-defense agreements to be in writing and submitted to the court for review in camera prior to going into effect.
Also note that the joint-defense doctrine is not a standalone privilege. Rather, it merely extends an underlying privilege. Thus, when creating a privilege log, never list the common interest doctrine or joint-defense doctrine by itself. Instead, assert the underlying privilege or work-product doctrine, followed by the common interest doctrine. See OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874 at 894 (compelling production of documents asserted to be protected solely by the “common interest privilege).
Moreover, where the common interest is not obvious (such as where parties who shared privileged communications based on their “common interest” are adversaries), courts may scrutinize claims that the documents were shared to further a common legal purpose and may even order in camera review.
Last but not least, the privilege does not extend beyond the areas where the parties' interests overlap. “[T]he attorneys do, at a minimum, need to be ‘engaged in maintaining substantially the same cause on behalf of other parties in the same litigation.’” United States v. Gonzalez, 669 F.3d 974, 980 (9th Cir.2012).
Be aware of the limits of the joint interest, and thus the limits of the protection.
I have a new short video up explaining what an appellate attorney is, and why you should bring an appellate attorney on to your litigation team.
Sean Thomas Lobb has Tips Learned While Clerking in Orange County in the November OC Lawyer magazine. Some takeaways:
DO: Cite well-reasoned decisions from the same federal district court – even UN-published decisions!
DON'T: Use legalese. It's like biting into the frozen center of a microwave burrito.
DO: Make focused, targeted arguments to tentative rulings. And answer judges' questions directly.
DON'T: Flub the local rules, especially relating to discovery motions. https://lnkd.in/gCPy-6H
OC Lawyer November 2020, Volume 62, #11
The president of a multibillion-dollar gas company, Mark Hazelwood, was accused of participating in a manual-rebate scheme by shorting customers of purchased diesel fuel and cooking the books to avoid detection. The government had a key piece of evidence. It had an audio recording of Hazelwood. The government's recording of Hazelwood didn't contain anything that suggested Hazelwood participated in the fraud. But the recording did depict Hazelwood making truly odious racist statements. (As a taste, it revealed Hazelwood as a David Allan Coe fan.)
Defense counsel wisely confirmed he did not wish to open up issues of character.
So, the government came up with this clever idea. The government asked a witness whether Hazelwood was a "good businessman." He was. The government then moved to admit the offensive recording as evidence that, in fact, Hazelwood would and did jeopardize the company's reputation by making the offensive statements, tending to rebut the evidence that he was a "good businessman."
The Sixth Circuit reversed. United States v. Hazelwood, Nos. 18-6023/6101/6102 (6th Cir. 2020). The Court asks a simple question: Do the statements make it more likely defendant committed fraud? No. Do the statements make it more likely the jury will convict? Yes. Henry Ford, after all, was an excellent businessman, despite being a rabid anti-semite. Fortunately, character flaws do not have a natural correlation with business judgment.
That is why we have rules against character evidence.
The Sixth Circuit explains the other ways character evidence may be properly admitted, such as "proving motive, opportunity, intent," etc. under Rule 404(b)(2). But those did not apply here.
The error in admitting the evidence was prejudicial error because the government's evidence "was not ironclad," and the error left the conviction "in grave doubt."
Judge Donald dissented. Judge Donald thinks Hazelwood's theory that he was too good a businessman to participate in the fraudulent scheme opened the door to the recording of his racist and sexist statements. And that the recording could be admissible under Rule 404(b). And that "jury trials are not antiseptic events," and so even if a close call, the evidentiary ruling does not require reversal.
Hiding Bitcoin from your spouse is a righteously bad idea, and claiming you don't have to deliver her half of the Bitcoin because it was hacked is not a winning argument. In re Marriage of DeSouza (2020) 54 Cal.App.5th 25.
In a spousal support modification request, the court shifts the burden of proof to the party opposing the request. In In re Marriage of Hein (2020) 52 Cal.App.5th 519, 545–546, the Fifth Appellate District held father did not satisfy his burden by relying on expenses listed in his businesses tax returns. (Look for this case to be cited in civil appeals seeking to shift the burden of proof.)
Jeff Lewis: The lesson from this case is after separation. spouses should hide Bitcoin trading from each other.
Announcer: 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 Cole 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 our appellate specialist who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal.
Jeff Lewis: All right, Tim, On today's episode, we're going to cover the topic of Family Law appellate proceedings, about one quarter of my appellate practice concerns, challenges to family law orders by way of written or direct appeal, and I thought it'd be a good idea to share some tips I've picked up along the way in my practice.
Tim Kowal: Jeff, before we dive into the specifics, let me ask you a broader question. What is it that makes for a good family law appeal? My impression is that a lot of family law litigation gets so contentious that an appeal might just be another way for one litigant to wage law fair against another and force the other side to spend money. And and then on the other end of the spectrum, there are litigants who have very tight budgets, and they might be forced to forego a righteous appeal, because they simply can't afford it. But there's it's that that group in the middle the rest of the cases that involve litigants who might be able to afford an appeal, but don't want to spend the money. If there's not a good chance of winning the appeal. What kinds of things are you looking for in a family law appeal that makes for a winning issue?
Jeff Lewis: Yeah, that's a great question. Let me say there's one other challenge in that because most family law issues involve either custody of children or support and appeals take so long, sometimes two or three years, and things can change with kids and support and change circumstances that can move an appeal. So finding a prospect for an appeal that can be resolved before circumstances have changed that moot, the appeals also a challenge. What I look for is generally I try to find a legal issue that is subject to de novo review, I usually will reject cases that are primarily involving substantial evidence challenges, credibility issues. questions regarding the character or value of assets are very difficult to win. But on the other hand, cases involving move away, and cases involving one party's access to funding to fund litigation, for example, a temporary attorneys fees or support order, those are right barriers for immediate read or an appeal.
Tim Kowal: Another point is that family law trials are always bench trials. So it's critically important to request a statement of decision at the end of any family law bench trial. And also after you've requested the statement of decision. It's important to appropriately appropriately object to any deficiencies in the statement of decision because an effective statement of decision can furnish solid challenges on an appeal.
Jeff Lewis: That's right in the absence of a statement decision or a defective statement of decision can doom an appeal before the court even begins. Just like civil appeals a family law appeal where there's no statement a decision can result in the application of the doctrine of implied findings, where the Court of Appeal will, the Court of Appeal will look in the record for any evidence that could support the implied findings and will presume that the court the trial court made all findings necessary to affirm the judgment. Let's, let's start with some of the basics regarding Family Law orders, in terms of what types of issues make for possible writs and appeals. About once a week I get approached about appealing some sort of discretionary ruling involving support or custody. That turns on fact questions. How much money does dad make? Is dad a good parent? Is wife really spending money for the good of the children? Those kinds of questions. And for those types of orders, I usually recommend that the client wait six months, and at the trial level file a request for modification due to change circumstances. So for example, when when I'm approached with those kinds of appeals, I have to tell the client that it's going to take two to three years, only 90% or over 90% of all appeals result no change of the judgment. So I usually turn down those appeals. When I recommend to clients simply go back to the trial court in six months.
Tim Kowal: And the benefit of doing that Jeff is what just to make a better evidentiary record,
Jeff Lewis: that and their dollars are better spent on a family law attorney at the trial level to convince the judge that things have changed, you just have a higher percentage chance of getting a different result and sooner you can get in front of a judge in six months as opposed to an appeal, which can take a year or more.
Tim Kowal: Right. Right. And by the time the appeal has concluded, it might be a moot issue. So a decision might not ever issue.
Unknown: Yeah, that's right. Unless you've decided it's a case where you're going to take a writ. Yeah, absolutely. Absolutely. Yeah. So the the cases that I typically likely accept for an appeal involve predominantly legal issues such as FLARPL , which is a family law, real property, lien wether a FLARPL is valid. With our trial court had legal authority to do what it did. For example, I have an appeal pending right now. We're a family law court, retroactively modified support, and the interpretation of Family Law statutes, those are all good areas for appeals. Also, a big challenge in family law appeals is identifying whether or not the order or the judgment is appealable. Just like in civil cases, it's important to identify an actual final order that can be appealed.
Tim Kowal: And here we're talking about the final judgment rule. Right,
Jeff Lewis: exactly. Just like civil cases, you need a final judgment to appeal from.
Tim Kowal: Yeah, so in a in a family law case to determine finality of an order or judgment. The question is whether any further litigation is required by the court in order to essentially render a final determination of the rights and duties of the parties on the given subject matter. And that that's the California Supreme Court case of Olson versus Cory. And all cases cited in the podcast will be in the show notes. I've seen that I've seen finality, the finality question becoming very complicated in family law cases because Family Law trials are often bifurcated, with dissolution status being decided first, and other post dissolution issues like property, property division being decided later bifurcation in in a way splits the atom of finality. So you might wind up getting multiple, quote unquote, final orders that therefore become appealable. So really, what makes for an appealable final judgment or order? and what doesn't, can be subject to many exceptions. And so what I suggest, Jeff, is that we include a non exhaustive list of some of the most common appealable orders in the show notes.
Jeff Lewis: Oh, yeah, that's a great idea. And you're right, oftentimes, bifurcating judgments or bifurcating a divorce proceeding can result in multiple, separate final and appealable orders or judgments. So the status of marriage could result in one appeal. And then later, the disposition of property could result in a second appeal. And if you wait too long, and don't appeal, the first bifurcated judgment, you might be barred from reviewing an important issue later. So it's important to look at these issues anytime, a separate and appealable order or judgment is issued.
Tim Kowal: Yeah, it also makes the prospect of appealing more expensive, doesn't it? Because you might be looking at taking up multiple appeals if you've got an appeal of a of a status order, and then and then an issue you want to raise in a post status order. That's going to require separate retentions of appellate counsel and separate rounds of briefing in the court of appeal. You're absolutely right. You know, in the normal civil world, you could contemplate perhaps consolidating appeals. But in the family law context, sometimes these bifurcated proceedings are years apart and consolidation, you know, for briefing or arguments Not really, not really an option. All right. So let's, let's shift away from discussion about appeals and talk about what makes a an issue that's ripe for RIT review.
Jeff Lewis: Tim, before we jump into specifics of Family Law, what criteria Do you use in civil matters when evaluating whether to recommend that client seek a petition for writ of mandate?
Tim Kowal: Right. Well, the basic requirements for a writ are that there is no adequate remedy at law and that there's irreparable injury. So you have to make sure you've exhausted all your remedies in the trial court, and you need to look and see if there is something truly life changing at stake. It ought to be the sort of thing that if left uncorrected, would make a compelling pitch to a journalist or to your congressperson. In other words, I don't want to be salesy here, but if you're trying to decide if you have good grounds for a writ, you really do need outside an outside perspective. So I think it's a great time to call appellate counsel to get an independent perspective on whether you have good grounds here for for review.
Jeff Lewis: Yeah, and let me suggest that in a family law context, Family Law clients have a bit of a leg up over civil law clients in terms of being able to make the case for a compelling situation requiring relief. In general, I've identified seven types of orders that I will consider for filing a writ for Family Law client. The first is a challenge to a 170 point six peremptory challenge as to a judge. In that case in family law in all of simple a writ is the exclusive method to review how the trial court handled a 170 point six peremptory challenge. If you wait, if you don't do a writ, within 20 days, we've decided to wait and try to review it from the final judgment, you'll found to have weighed the issue. Right. So that's the first kind of order the second kind of orders a temporary support order. Because that the circumstances of that are so quick and so quick to change. That is really the only way to get meaningful relief for a client.
Tim Kowal: Yeah, it's always good to be moot pending full appeal.
Unknown: That's right. That's right. If you wait two to three years for the appeal to conclude the divorce might be over. Yep, a denial. And similarly, you know, family law cases, one side of the other might ask the other side to pay their attorneys fees. So sometimes when the husband is the primary breadwinner, wife will go to a family law court and ask that husband advance fees to pay for attorneys fees. And so the denial of this kind of request for attorneys fees is another area that's ripe for review. A fourth type of order that I'll consider for RIT is a move away order, especially an out of state, move away where the child that's going to move is going to be outside the jurisdiction of the court and waiting for a direct appeal may leave the Court of Appeal without the ability to
Tim Kowal: Right
Unknown: obtain any meaningful relief,
Tim Kowal: Right. Anything that threatens to deprive the court of appeal of jurist or the California Court of jurisdiction is going to be a good candidate for review.
Jeff Lewis: And then the fifth area for review is contempt proceedings. Sometimes a party into solution is judged to be in contempt. And a writ of prohibition similar to writ of mandate might be the sole remedy there. And once in a while family law attorneys will be called on to move to expunge others pendants on real property, and orders either granting or denying such as pendants, orders are only reviewable by way of read, try to wait till the end of the case to appeal. It's too little too late. And then finally, similar to civil, if there's any discovery orders, compelling disclosure privilege materials, that's another good area for review.
Tim Kowal: There might there might also be some orders that you should consider taking up on a writ, even though they are appealable, such as when you're trying to compel a parent to pose security for payment review may be granted in those cases, if the court is concerned that the estate may be dissipated before an appeal can be resolved.
Jeff Lewis: Yeah, yeah, great point. So let's talk about some timing issues because oftentimes, I'm only called by trial counsel two or three weeks after an order has been issued, and sometimes deadlines have passed. Some writs have very specific deadlines, some as short as 10 or 20 days to file a writ, while others are subject to a longer 60 day deadline to file a writ. Well, let me ask you this, Tim, if you've got 60 days to file a writ, do you generally wait till date 59 or 60? to file your it?
Tim Kowal: No, no, of course not you. When you file a writ petition, you're asking the court, the Court of Appeal to basically move your case up to the front of its queue. If you haven't pushed that case up to the front of your queue and gotten that out your door as soon as possible. It's a little chance that the court of appeal is going to oblige.
Jeff Lewis: Yeah. And similarly sometimes on trial counsel, wait for the reporter's transcript, the final perfect reporter's transcript to be prepared and sent over before they decide to appeal and a call appellate counsel. Is that your practice to wait for that transcript tip?
Tim Kowal: No, no, you can when filing a writ petition, you can submit a declaration that gives the you know what's the basic meat on the bones in lieu of waiting for the transcript? And then I believe you can submit that transcript later. Can you draft it becomes That's
Unknown: Right. So long as you have fairly described, you know what happened at the trial level both the good, the bad and the ugly. As long as you fairly describe what happened by way of declaration that the court would prefer that you file your writ sooner and not wait for that transcript. Another common question I get asked in the context of Family Law appeals are stays, what issues are stayed and which are not if you file a writ or notice of appeal, and in the context of the emotions of a family law proceeding involving their custody or support. This question is frequently asked
Tim Kowal: the issue of stays could be a topic for an entire episode. general rule is the set forth and code of civil procedures section 916, which imposes an automatic stay over any matter that's embraced in or affected by the order on appeal. And that default rule is that matters are stayed pending appeal. But it's subject to so many exceptions that there's almost no point in talking about a default rule, but to say maybe especially crucial in dealing with orders that change child custody, and that could result in California Courts being divested of jurisdiction. And in those kinds of cases, you should be thinking about both stays and repetitions.
Jeff Lewis: Yeah, absolutely. And maybe we will do a future episode on issue of stays. In the context of Family Law orders, there are three issues that are automatically stayed upon the filing of a notice of appeal. One is if the family law court order is the equivalent of a mandatory injunction that is automatically stayed without any kind of bond or undertaking. If there's a move away order, the the order is stayed automatically for the first 30 days, which should give you time to go to the court of appeal, file a notice of appeal, and then ask the court of appeal for further stays. You could at the trial court's discretion, ask for the trial court to stay the movie move away order after 30 days, but my experience the kind of judge that grants a move away where there's not likely to stay their own order. And then finally, a judgment. awarding routine costs are also automatically stayed upon filing a notice of appeal. But there are other orders that if you post an undertaking, you can obtain a stay. So for example, an award of attorneys fees, an award of costs, that includes expert fees, conveyances of property or support orders, all of those types of orders can be stayed if the losing party is willing to post an undertaking. And you know, the Court of Appeal also always has the discretion to grant a stay if upon motion to the court of appeal. And the trial court has discretion to stay custody and visitation orders. But again, in my experience, the kind of judge that grants a custody and visitation orders not likely to stay its own order.
Tim Kowal: Jeff does the discretionary stay statute of CCP section 918. Apply in family law proceedings?
Jeff Lewis: I think it does except where specific Family Law codes apply. So for example, a move away order I believe there's specific statute that gives a 30 day automatic stay in that context,
Tim Kowal: right and in for our listeners, section 918 provides that a trial judge may stay may stay the effect of its order, up to 10 days after the deadline to file a notice of appeal. And that state may be issued regardless of whether an appeal is actually filed.
Jeff Lewis: Okay, let's let's shift gears here and talk about the issue of waiver on appeal, much more so than in civil law and family law. Sometimes, circumstances will happen after the filing a notice of appeal, where a party may be found to have waived the right to appeal before the Court of Appeal gets to the point of rendering.
Tim Kowal: Right a party who stipulates to entry of a judgment would would be hard pressed to appeal that judgment without first raising an issue in the trial court. The principle is that if you voluntarily comply with a judgment, that could be deemed to be a waiver. So whenever I, whenever I'm talking with the client about paying a judgment, for example, to achieve a stay of further enforcement of the judgment, I always want to make sure that we are sending opposing counsel a letter stating that we're only paying this under protest or under duress because my my client doesn't want to have to endure any more judgment enforcement efforts. And not because we are acquiescing in the judgment and And specifically, we are still reserving our right to appeal.
Jeff Lewis: You know, it's interesting, the civil world is pretty cut and dry. But family law may not always be so if you have an order, for example, that direct payment of support, direct payment of attorneys fees, but then also makes orders regarding custody. Suppose the losing party who has to pay support and has to pay attorneys fees, really likes the order regarding custody, and takes advantage of that custody order follows that custody order. in that circumstance, you might be able to argue that voluntary compliance with the order relating to custody, acceptance of the benefits as it relates to custody is a waiver of the right to challenge the order.
Tim Kowal: Yeah, that sounds like a big potential trap.
Jeff Lewis: It is it is that Tim, one area that sometimes gets played in civil law but gets more play in the family law context is the disentanglement doctrine. You want to explain what that is?
Tim Kowal: Yeah, under the disentanglement doctrine. It's a little known doctrine among practitioners. It basically stands for the principle that if you are flouting orders of the trial court, the Court of Appeal can basically strip you of your rights of appeal the dissent title doctrine, it's a discretionary tool that may be used to dismiss an appeal, when the balance of the equitable concerns makes dismissal and appropriate sanction. It's essentially a motion to dismiss with dismissal being a form of remedy or sanction for violation of court orders.
Jeff Lewis: Right. So in the key in the distant title, the doctrine is to show not only that the other side willfully disobeyed a court order, but the ability to comply with that quarter. So for example, in a custody case, a parent that hides a kid, it doesn't turn the kid over to the other parent. That could be grounds for disentanglement. On the other hand, if somebody is destitute in order to pay fees, and there's no showing them the ability to pay those fees, they don't know that that would give rise to application of this entitlement doctrine. But usually, these three points we've talked about either stipulation, voluntary compliance, acceptance of the benefit of an order, or disentanglement, all of these issues are raised by an early motion to dismiss filed in the Court of Appeal. And in my in my experience, the earlier you file that motion, the better odds you are have of getting the case dismissed.
Tim Kowal: Right? Right, we should, we should be clear that the dis entitlement doctrine doesn't apply just because they have an appellant failure to pay a money judgment, for example, it has to be an equitable order. But it's also important to note that a finding of contempt is not a prerequisite to to being subject to the disentanglement doctrine. So the so the respondent does not need to first file an OSC re contempt or getting any other kind of finding by the trial court of a violation of the court order. It can be raised for the first in the first instance in the court of appeal. Yeah,
Jeff Lewis: yeah. And by the way, you know, normally in the world we live in, Tim, if it's not in the record, it doesn't exist, the Court of Appeal only considers what's in the appellate record, the court transcript, etc. But we file a motion to dismiss, you can attach a declaration with post order evidence stuff that's not necessarily included in the clerk's transcript. And and through the willful violation and the ability to comply with the order with matters that were never even brought before the trial court.
Tim Kowal: That's right. That's a good tip of have a way to get matters into the appellate record, that you might not otherwise be able to. I don't know if that's considered part of the the formal corpus of the record that the court can rely on in in resolving the merits, but it's hard to disentangle disentangle that evidence once the judges have read it.
Unknown: Yeah, you can't unring that bell. Right. Tim, in a prior episode of our podcast, you brought to my attention this new case involving conservatorship and appellate standards, want to remind our listeners about that case.
Tim Kowal: Yeah, that case was Conservatorship of O.B., as case issued this year 2020. It's a California Supreme Court case. The reason that we covered that case is it involves a clear and convincing evidence standard. And prior to conservatorship of ob, the the higher that higher clear and convincing evidence standard actually didn't make its way into the appellate analysis. But after that decision, the higher burden does apply on appeal. Essentially, what had happened before is our listeners probably know on review of factual issues, the deferential substantial evidence standard applies. That means if there is any evidence that is substantial enough to merit consideration by the court of appeal, that will be deemed to support affirmance of the judgment. So the question that often came up prior to Conservatorship of O.B. is what happens to that standard of review when the standard of evidence at the trial was clear and convincing. Well, prior to conservatorship of ob, the clear and convincing evidence standard just kind of melted away. And you've still got the same old deferential substantial evidence review. And and if you are the defendant, you didn't really get the benefit of the clear and convincing evidence once it went up on appeal. But conservatorship of ob held that when reviewing a finding. That effect has been proved by clear and convincing evidence. The question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable Fact Finder could have found it highly probable that the fact was true. So in other words, it's still the same substantial evidence standard, but now instead of substantial evidence to support a conclusion that the the fact was more probable than not. Now, there has to be a finding by the court of appeal that the evidence was substantial enough to support the higher evidence standard. So so at least at least, the clear and convincing evidence makes its way into appellate review. And I think that that itself may be significant, but we'll have to wait and see whether that whether practitioners actually find that their their appeals on substantial evidence basis. coming out with a higher reversal rates.
Jeff Lewis: Yeah, we'll wait and see how that plays out in the context of family law. They're, you know, six or seven types of orders that in the past before this conservatorship case, I probably would not be excited about appealing because of the daunting, substantial evidence standards, a very difficult standard to meet, but with this new language. Next time I'm presented with a issue involving the clear and convincing evidence standard at the trial level, I would take a second look and maybe consider raising this issue on appeal. And the areas where this could come come up for Family Law Attorneys, even though it's not strictly Family Law. Oftentimes, family law attorneys are called on to make or defend a civil harassment restraining orders, which call for clear and convincing evidence of harassment, waivers of significant property rights, allegations of non disclosure regarding assets, facts. And when a spouse asks after remarriage to continue to receive spousal support pursuant to an agreement, there are clear and convincing evidence, findings requirements. And when a spouse requests an award of ownership of an asset transferred or not disclosed in violation of the other spouse's fiduciary duty, that's another area where clear and convincing evidence is required. Termination of a party's parental rights to a dependent child requires clear and convincing evidence and finally, allegations of fraudulent or improper conduct, warranty and position punitive damages requires clear and convincing evidence. These are all areas where prior to 2020, I might be dubious about taking an appeal, but with this new conservatorship case might take a second look.
Tim Kowal: Yeah, at least at least warrants a second look.
Jeff Lewis: Alright, let's shift gears here and talk about commencing the family law appeal. Similar similar to civil rules, family law attorneys have time limits in which to file a notice of appeal to get jurisdiction of the court of appeals to hear a case.
Tim Kowal: Right, the general rule is you have 180 days after entry of an appealable order to file the notice of appeal. But you should always be looking over your shoulder for the exceptions to this rule. The exceptions under rules of court 8.104 gives you only 60 days to file the notice of appeal,
Jeff Lewis: right and that time, either 60 or 180 days that runs from notice of entry of judgment. What does that mean?
Tim Kowal: Right? If there's a file stamped copy of the order that served by the clerk, or if there's a notice of entry of judgment or order that served by any party, then your time to file a notice of appeal is only 60 days from that date,
Jeff Lewis: right and there's no extension if these documents are served by email, or fax or FedEx, it's that hard 60 or 180 days. And there is a rule, by the way, a family law rule that a clerk must serve certain types of Family Law judgments, then the clerk must serve the notice of entry of judgment. But that rule or violation of that rule doesn't impact the calculation of the 60 or 180 days. So if you are prevailing party in a family law matter, and the clerk has not served, copy of the order. My advice to the winning party is to immediately serve a notice of entry of ordered start the time ticking for both notices of appeal and motions for reconsideration.
Tim Kowal: I still would not rely on those rules and waiting to file a notice of appeal. I think there's also I've seen orders served by the court that were not file stamped. But I wouldn't rely on the file stamp to avail myself of of any extension. I would just get that on file.
Jeff Lewis: And also I should point out that there have been a lot of recent temporary measures and acted by the Judicial Council of the governor regarding extensions of time. I have not seen any that extended either the 60 or 180 day deadline for filing a notice of appeal and the Superior Court.
Tim Kowal: Right nor have I although in previous episodes, Jeff, we've covered at least one or two cases that have suggested that maybe the court would would take a look at legitimate COVID excuses that if a litigant actually had come down with COVID. Maybe the court could look the other way on a missed deadline. But I don't I don't anticipate we'll see a case like that.
Unknown: Yeah, me either. All right. Another frequent area of inquiry I get from trial counsel and Family Law appeals is well, if we win the appeal, can we get an award of costs and attorneys fees or if we lose the appeal? Do we have to pay the other side's costs and attorneys fees? And let me say this, the award of costs attorney's fees is made by request to the trial court after the appeal. It's not really up to the Court of Appeal determine a fee award. All the Court of Appeal does is Determined to one side or the other is entitled to costs. In most cases, sometimes the Court of Appeal will have each side bear their own costs in the interest of justice. But once the Court of Appeal has determined that one side of the other has been awarded costs, and the case is remanded to the trial court, then the Family Law Attorneys free to make whatever fee motion they want to make, including a needs based fee award or emotion, emotion for sanctions. Now let's talk about two cases. recent cases in family law that should be of interest to our listeners, the first case is in a Marriage of D'Souza. This is a case involving Bitcoin. The lesson from this case is after separation, spouses shouldn't hide Bitcoin trading from each other. In this case, pre pre separation, the wife was not involved in any kind of family finances, and post separation, the husband secretly purchased a $200,000 in Bitcoin in a series of transactions. And the judgment in the case ordered half of the Bitcoin to the wife. And this wouldn't be a problem except for the fact that it has been not only didn't tell his wife that he was buying this Bitcoin, but he didn't tell the wife that the Bitcoin company that he invested in, had filed for bankruptcy was subject to hacking and the husband turned over the Bitcoin to the wife. When wife discovered this, there was a four day trial, post judgment trial on this non disclosure issue because spouses have a fiduciary duty to disclose all material information about their finances to their spouse, even post divorce or post separation before the divorce is final. And that has been lost badly at this trial. The judge found that he breached his fiduciary duty. The judge ordered more of the Bitcoin to the wife along with attorney fees. The husband appealed. He raised an interesting argument on appeal. He said, You know, this information about the Bitcoin wasn't material because wife wasn't involved in the finances, and she wouldn't have done anything with this information if she had known so it's not material. The Court of Appeal was not excited by that argument. The Court of Appeal said Erica's lack of involvement or interest in the couple's finances before they separated is undisputed. But it sheds little if any light on what she would do to protect her financial interests after retaining divorced counsel filing for divorce serving Frances with restraining orders that barred him from making unilateral decisions involving the community estate. The thing I found interesting about this case is this is usually the kind of ruling that is subject to either substantial evidence review in terms of the facts or abuse of discretion in terms of the award of Bitcoin. But this this case suggests a new rule or new law, that one spouse's lack of involvement in finances is not as a matter of law, dilute the duty of the other spouses duty of disclosure regarding finances.
Tim Kowal: Yeah, I tend to think that's the right outcome.
Unknown: All right, Tim, it did you want to discuss the marriage of Hein case?
Tim Kowal: Yeah, yeah. Marriage of Hein. It's another 2020 case. This is an interesting case that involves the burden of proof. It's a fifth district case, and it's a good it's a pretty good example of a successful Family Law challenge check. And I think it checks all the necessary boxes. It involves a support order with a fairly substantial amount at stake. And the award even though subject to the deferential abuse of discretion standard, was based on what the Court of Appeal ultimately found to be a dubious leap legal footing. So in Hein, Jessica, the mother petition for a modified support order against Martin, the father Martin owned and operated several ranches with substantial revenues, but due to the deductions reflected on his tax returns, his income available for support was greatly reduced. The Trial Court decided that Martin's tax returns were entitled to a presumption of correctness that Jessica was required to rebut. Jessica failed to rebut it. So the court denied her or modified support requests. The Court of Appeal reverses in a quite long decision, the court's decision could have been much shorter because the evidence code supported the trial court. And the family code was not dispositive one way or the other. But the court went on to analyze several other decisions and concluded that the general rule concerning burdens of proof, which would have put the burden on Jessica was subject to an exception based on which party had superior access to the information and also relied on factors of public policy considerations and others. The highest court concluded that the trial court's ruling that the tax returns were entitled to a presumption of correctness was not an appropriate use of the courts discretion. And so it ruled that this was an abuse of discretion. This was this would otherwise be well within the trial court's discretion, but the Court of Appeals seem to to go at this a different way and find that the lens that the trial Court used to view the evidence was improper to begin with. So throughout the court's conclusion,
Jeff Lewis: yeah, you know, I found this case interesting, because, you know, let's face it only applies to family law support calculations, but I could see appellate lawyers trying to expand this ruling outside of family law. In other areas, for example, when trying to calculate net worth for purposes of punitive damages in a civil case. What do you think, Tim?
Tim Kowal: Yeah, I agree. I think the court acknowledges that the burden of proof is established under the evidence code, as basically the party calling upon the court to make an order has the burden of proof in the normal case. But the court went on to explain that that's not the case, in all cases, and the court didn't quite say when when it should look to these factors of including who has superior knowledge about the issue, or who has better access to information that could prove or disprove the issue. I don't know that we're left with a very good rubric of when these when this factor based analysis applies to determine who has the burden and when we just resort to the general rule under the evidence code.
Jeff Lewis: Okay, let's move on to some recent news affecting the courts. in California. We've had some rules because of the COVID-19 emergency that have been passed by the Judicial Council in the form of amendments or appendices to the California rules of court. Well, this week, the governor has signed California Senate Bill 1146, which formalizes some of these previously enacted rules regarding remote appearances at depositions affect the accepting electronic service of documents, and most importantly, when a trial date has been disrupted or vacated due to the covid emergency, this new law, SB 1146, seems to enact 180 day extension of all discovery, including expert discovery, until 180 days after the governor's declaration of a coven emergency is over.
Tim Kowal: Well, that's a that's gonna change some things in the cases on my plate.
Jeff Lewis: It's gonna slow down any urgency, that's for sure to get cases done if people feel like they got a rolling six month deadline to get their discovery done.
Tim Kowal: Yeah. Is there work this is I take it effective immediately.
Jeff Lewis: my reading of the law is that it's effective for any dates that were not blown or any discovery deadlines that were not expired as of March of 2019.
Tim Kowal: Okay. Well, in other news, the California Supreme Court has granted review in a case called Seagal v. ASICS America Corporation, it's going to resolve a split in authority over whether the prevailing party in a case may recover costs for unused trial exhibits under code of civil procedure, section 10 33.5, the second Appellate District had held that such costs are recoverable, reasoning that the statutes interpretation, quote, must reflect the reality of how complicated cases are tried and quote, but some other some other appellate districts in the state had not agreed. And so it was, it was up to your particular district, whether you were going to get recovery of costs for exhibits that maybe that you didn't use for one reason or another at trial. It's also interesting, I
Jeff Lewis: just say I've had trials where the other side shows up with dozens and dozens of trial exhibits that they put up on counsel table, and they're never cracked open once. And I've seen trial courts go both ways and awarding fees or costs for reproduction of these unused exhibits. I'll be interested to see what the California Supreme Court does in this case.
Tim Kowal: Yeah, yeah, I've I've been on both sides of that where we've we brought trial exhibits that we didn't wind up using. Maybe sometimes that's because we're being over inclusive. And other times it might be because we just don't know what the other side's going to say. And we want to have rebuttal evidence at the ready. I don't think it's fair to be penalized for having exhibits printed that we very melt very well made need, but just because of the way the trial was conducted, we happen not to need it. Probably a black and white rule either way, strikes me as not the right one. Also the official 2019 statistics for the California Courts were released recently, the rate of reversal in 2019 was up slightly to 18%. In civil cases, that rate was 16% in 2018. Last year also saw the most de published opinions in a decade. It's not by a lot, but I do find it noteworthy whenever the government says it does not want to hear from the public about something the government did. And the median number of days to process a civil appeal from filing to opinion has increased slightly from 577 days to 589 days. I thought that was a little curious because there has been a slight, slight downward trend in the number of appeals filed over recent years. Yeah, I would expect that deadline or that that time from filing to opinion that delay will increase over time given COVID and the impact of reporters transcripts, not getting the transcripts done. Next year. At this time on record this podcast, you're gonna see that number is much bigger. Well, I guess we'll find out. Well, that's uh, that's all the news I have for this week. Jeff. If you have suggestions for future episodes, please email us at cow podcast@gmail.com. That's ca l podcast@gmail.com. On the next episode will cover more appellate decisions and appellate tips.
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You will get a sense of the First District's frustration over this SLAPP appeal just by its disposition. The case is Oakland Bulk and Oversized Terminal LLC v. City of Oakland(D1d2 Sept 17, 2020) A157330. The Court does not merely affirm the order denying, without prejudice, the City of Oakland's SLAPP motion. No, the Court reverses that order, and directs the trial court to deny the City's motion WITH prejudice.
And the Court has some words for the Legislature as well.
Here is what happened. Oakland entered an agreement with a developer to create a shipping terminal at the former Oakland Army Base. Activist groups learned coal would be shipped out of the terminal, and gave the city an earful over it. The city capitulated and passed an ordinance banning coal handling, directly contradicting its agreement with the developer. So the developer sued in federal court, and got an order enjoining enforcement of the ordinance.
But the city continued to stall and delay performance under the agreement. So developer filed a breach of contract claim in state court.
As one does when seeking to stall and delay, City filed an anti-SLAPP motion. The City "never expressly says what is" the basis of its motion. Its motion is filled mostly with "boilerplate." The trial judge, having simultaneously sustained a demurrer with leave to amend, denied the SLAPP motion without prejudice as premature, referencing the forthcoming amended complaint.
City appealed the order denying its SLAPP motion. As a result, the entire action was stayed.
The First District has little trouble agreeing the City's SLAPP motion was properly denied. The developer was not challenging any right of petition or free speech in opposition to coal handling. The developer just wanted the City to abide by its contract.
Here is what the First District had to say to the Legislature in its concluding section, titled "Some Closing Observations—and a Plea." The Court traces the history of "misuse and abuse" of the SLAPP statute, and how "ironic and sad" it is that litigants file "meritless anti-SLAPP motions as a litigation weapon."
The Court has a specific proposal in mind: to repeal the automatic right to appeal denials of SLAPP orders. Such orders should be left to review on a writ basis only, as they were prior to 1999. In 1998, two law professors had suggested making denial orders immediately appealable. But the Judicial Council, wisely, rejected that suggestion, stating that review by writ petition was sufficient.
Unfortunately, the Legislature sided with the law professors against the Judicial Council and enacted an immediate right to appeal orders either granting or denying SLAPP motions. Criticism of that amendment was swift and widespread, and was even noted by the Senate Judiciary Committee. But the Legislature chose to do nothing.
Delays were added to increased costs when the Supreme Court in Varian Medical Systems v. Delfino (2005) 35 Cal.4th 180 held the appeal of a denial of a SLAPP motion automatically stayed further trial court proceedings. ... This means that however unsound an anti-SLAPP motion may be, it will typically stop the entire lawsuit dead in its tracks until an appellate court completes its review.” (Id. at pp. 1184–1185.)
Why would a defendant pour tens and hundreds of thousands of dollars into a SLAPP motion and appeal? The First District asked defense counsel that question. His response: If the City wins, it will get its fees.
But, the Court wants to know, even if successful, "just how much does the City expect to be awarded for the successful striking of two lines in a 63-page complaint?" (Oh, you would be surprised – big-firms can command six-figure SLAPP fee awards, even before an appeal is taken.)
"Something," the First District concludes, "is wrong with this picture." And "the time has come for the Supreme Court to revisit the issue of an automatic stay." And for the Legislature to revisit the wisdom of vesting a right to appeal orders denying SLAPP motions.
Wells Fargo's attorneys moved the trial court, unsuccessfully, to continue a San Diego trial at the outset of the pandemic, and petitioned the Court of Appeal, again unsuccessfully, for a writ. Now the Supreme Court has granted review on the question:
"During the current pandemic, may a trial court compel participation in a large in-person trial—with 20 or more persons in the courtroom—in a civil case in which there is no calendar preference and no exigency requiring an immediate trial?"
Skimming the petition, it strikes me as calling for a legislative remedy, i.e., new rules for trial procedure for the foreseeable future.
As for a judicial remedy, I have an easy solution: Stipulate to a pro tem judge. Phase 1 of this trial is for declaratory relief, meaning, no jury. Send this out to a JAMS or ADR facility and have a socially-distanced or even a Zoom trial according to preference.
We just did this for a trial, and is working great so far. Let me know if you need the forms.