In Zazueta v. Imperial Heights Healthcare & Wellness Centre, LLC (Oct. 26, 2020) D075879 (D4d1), the trial court compelled the case to aribtration. But defendant "failed to engage and participate" in arbitration. So plaintiff went back to trial court and filed a "motion to restore" the case to the civil active list, which the trial court granted.

The Fourth District reversed, holding an order lifting a litigation stay and resuming a matter previously ordered to arbitration was the "functional equivalent" of an appealable order denying arbitration.

A recurring theme on the California Appellate Law Podcast (www.CALPodcast.com) is how appealable orders often come in unusual guises. This is a good example of that. A tip for the wary.

The Court points to an interesting distinction of a 2016 case, Gastelum v. Remax Internat., Inc. (2016) 244 Cal.App.4th 1016, 1022-1023, where the arbitrator -- not the trial judge -- had terminated the arbitration on procedural grounds. There, the order was not the "functional equivalent" of an order denying arbitration.

The safer course is to appeal immediately. If you wait and you are wrong, the issue will be lost forever.

I found this interesting. Part way in to the appeal, the parties stipulated to dismiss the appeal and to ask the trial court to vacate its order and resume the arbitration. But the Court rejected the stipulation. The Court did reverse the order. The Court did send the parties back to arbitration. And the Court did not publish its opinion. This is the same outcome to which the parties had stipulated. I can only speculate that the Court had something different in mind when it rejected that outcome previously.

https://www.courts.ca.gov/opinions/nonpub/D075879.PDF

If you have ever held a redacted document up to the light to see the redacted text, you know other attorneys are doing the same. In a redacted PDF, you might be able to copy and paste the obscured text. I've also seen redactions made with black boxes that could simply be moved aside.

Here's a trap I hadn't thought of: If you redact text in a deposition transcript, make sure to redact the corresponding entries in the index. Over at Above the Law:
"For example, if there’s a redacted word that comes right after “clients” in the index, and on the corresponding page the phrase “President _______” is redacted, it isn’t too hard to figure out that the redacted word is “Clinton.”"

And in a deposition of Ghislane Maxwell in the sordid Jeffrey Epstein litigation, those following the scandal can easily deduce that Prince Andrew's might be the name that falls alphabetically between "analyzed" and "angeles."

https://lnkd.in/gbDftCB

Governor Newsom recently signed SB 1146, which among other provides new Code Civ. Proc., § 599, which extends "any deadlines that have not already passed as of March 19, 2020" upon continuance or postponement of trial. That includes discovery, expert discovery, and summary judgment motions.

It also provides at Code Civ. Proc., § 2035.310 that deposition officers may appear remotely upon election of either the noticing party or the deponent.
https://lnkd.in/giXwYic

Court Data and Statistics

The Prior Ruling Doctrine is yet another appellate trap for trial attorneys to consider when filing a motion for reconsideration. In Kerns v. CSE Insurance Group (2003) 106 Cal.App.4th 368, the First District reversed an order granting reconsideration of a prior judge's ruling, even though the motion was procedurally invalid. The court traced a split of authority in the District Courts of Appeal, some holding trial courts have jurisdiction under their inherent authority (Dist. 2 and 4), and some holding they do not (Dist. 1, 2, and 4).

Kerns held that the trial court could not even grant the procedurally invalid motion on its own inherent authority. Presumably this was because the trial court had "simply ignor[ed] the existence of th[e] prior ruling," rather than expressly correct it. But Kerns goes on to observe that even had it acknowledged and corrected the prior ruling, this "would completely undermine "the general rule that one trial court judge may not reconsider and overrule an interim ruling of another judge." [Citation.]"

What should the practitioner make of the court's inherent power to change its decisions at any time before judgment? Until split resolves, be mindful of the precedent in your particular appellate division.

 Every practitioner in California state courts knows you may not cite to unpublished opinions. (CRC 8.1115.) This is often frustrating when there are unpublished opinions favorable to your case. Still more frustrating is that you cannot prevent judges from reading unpublished decisions that are unfavorable to your case, or from relying on those opinions.

A recent (published) decision out of the First Appellate District upheld the validity of a bail bond even though it was for the wrong amount. The bond company, American Surety Co., had relied on a published 1919 Court of Appeal holding for its position. But the Court rejected that holding, stating:

"In the course of our research we encountered—but cannot mention by name—a number of unpublished Court of Appeal decisions rejecting American’s argument and distinguishing [the 1919 Court of Appeal opinion]."

Now, is it possible that, when preparing its briefs for the appeal, or preparing for oral argument, counsel for American became aware of those unpublished cases, but, due to the constraints imposed by Rule 8.1115, could not mention them? Perhaps American found other authorities that refuted those unpublished cases, but, alas, they too were unpublished?

I am troubled by the prospect suggested here that the bench may be relying on a subterranean body of law that the bar may not gainsay.

People v. Am. Surety Co. (Cal. Ct. App. - Oct. 1, 2020) D1d2 case no. A157154.

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

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.

Great news, you won your trial! Bad news, you only used half of your trial exhibits, so your client can't recover costs for the unused exhibits.

That could change. The California Supreme Court has granted review in Segal v. ASICS America Corp. for the limited purpose to resolve the split in authority over whether the prevailing party may recover costs for unused trial exhibits under Code Civ. Proc., § 1033.5. The Second Appellate District held such costs are recoverable, reasoning that the statute’s interpretation “must reflect the reality of how complicated cases are tried.”

A sound approach. A black-letter rule in either direction on this strikes me as a wrong one.