My colleague Jeff Lewis and I started the California Appellate Law Podcast because many of our best clients are attorneys, and we wanted to create a resource to help these attorneys avoid falling into appellate traps before they have a chance to call us.
On episode 5, we discuss a recent decision holding that an order an a special motion to strike under CCP 425.16 (a "SLAPP" motion) is akin to a final appealable judgment. As in, a motion for reconsideration is not available here. More anon.
But first, we discuss a new bill every trial attorney will need to be aware of. Under AB 3070 now awaiting Gov. Newsom's signature, any peremptory challenge to a prospective juror will be subject to objection as motivated by the juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, "or perceived membership in any of those groups." And the ruling on the objection is subject to de novo review on appeal.
I think it will be an earthquake in jury-selection procedure. Jeff expects some tremors and a chilling effect, but not a major disruption. In either event, if this is enacted, consider this very carefully before your next jury trial. The bill would not go into effect for civil cases until 2026. If the governor signs it, we will watch how it unfolds in criminal cases.
Also: May an expert witness testify what fraud "smells" and "tastes" like? Held: Not error, but reversed when she went on to testify about punitive damages.
And the clincher: How much will you get sanctioned if your call your judge "succubustic"?
I hope you will tune in. Listen online at www.CALPodcast.com, or search for California Appellate Podcast wherever you listen to podcasts.
On the most recent episode of the California Appellate Law Podcast, Jeff Lewis and I covered the recent Third District decision in Marshall v. Webster, which holds that an order an a special motion to strike under CCP 425.16 (a "SLAPP" motion) is akin to a final appealable judgment, upon entry of which no motion for reconsideration may be taken.
The Sixth District now publishes a similar holding in Reyes v. Kruger (Cal. Ct. App. Sept. 25, 2020) D6 H044661. It likewise holds the order following a SLAPP motion is independently appealable, and the time to appeal cannot be extended by the entry of a subsequent judgment. It is a useful cautionary tale. The multiplicity of this same cautionary tale perhaps suggests the appellate bench is trying to tell us something. And in footnote 6, the Sixth District is trying to tell the Legislature something, too.
In Reyes, an order granting an anti-SLAPP motion is entered. It is followed by a formal judgment. Instead of appealing from the order, appellant appeals from the formal judgment.
That was a mistake, because while a judgment normally follows a non-appealable order, in the case of an anti-SLAPP motion CCP 425.16 explicitly makes the order itself appealable. So the time to appeal ran based on the order, not the judgment.
The new trial motion based on the judgment did not extend the appellate deadline either, because, being likewise untimely, it was not "valid." (Branner v. Regents of Univ. of Calif. (2009) 175 Cal.App.4th 1043, 1046 (also covered on CAL Podcast, ep. 5).)
The Sixth District sympathizes with appellant, but, it says, its hands are tied: "Indeed, courts before us have cautioned that litigants in SLAPP litigation frequently fail to recognize that the grant of a special motion to strike is an appealable order and have even suggested that the Legislature reconsider this aspect of section 425.16."
In a footnote, the Court discusses the 2008 Second District decision in Russell v. Foglio, in which Justice Rubin noted that this aspect of the SLAPP statute created a "trap for the unwary" for "even highly regarded and experienced counsel," who sometimes "overlook that an order granting a motion to strike is immediately appealable." Justice Rubin, and apparently Justice Premo for the Sixth District as well, are "unable to identify a public policy benefit to 'justify the cost to the parties and the courts of two separate appeals." Justice Premo implicitly renews Justice Rubin's suggestion "that the 'Legislature consider changing the statute.'"
Until the Legislature accepts the invitation, remember not to wait to take an appeal on an order on a SLAPP motion.
Reyes v. Kruger (Cal. Ct. App. Sept. 25, 2020) D6 H044661.
(This article is available on LinkedIn here.)
To help demystify the subject of appeal bonds, the ABA released this 10-minute primer on appeal bonds this past summer through its “Sound Advice” resource. It covers some of the types of collateral that may be used, and notes that posting cash with a surety may sometimes return interest in excess of the bond premium!
Daniel Huckabay and Arturo Ayala with CSBA are great resources for bonds. My colleague Bill Mazurek can also help.
(Not covered: Personal surety bonds, an interesting option available in California. And many judgments require the trial court to set the amount of a bond. A temporary stay may also be available without a bond.)
I am often asked: If we reverse the judge on appeal, can we 170.6 the judge so we don't get sour grapes from the bench? The answer is: It depends on if the judge "is assigned to conduct a new trial." That is not always the case. Or, it is not always *immediately* the case.
A case in point. At trial, defense attorney during voir dire strikes seven Hispanic jurors. The next day, the judge raises the Batson/Wheeler issue. Plaintiff agrees, but then the judge decides it's "yesterday's news" and the objection goes no further. On plaintiff's appeal, the Court of Appeal reverses and instructs the trial court to rule on the Batson/Wheeler objection and, if the objection is sustained, to conduct a new trial.
This is where the 170.6 comes in. Defendant moves to strike the trial judge, who had originally raised the Batson/Wheeler objection. The judge accepted the strike, and plaintiff took a writ.
Held: No 170.6 challenges lies here, because no "new trial" had yet been ordered. Any new trial was conditioned on first sustaining a Batson/Wheeler objection. Writ granted.
"During closing argument, at the end of his rebuttal, the prosecutor told the jury that the presumption of innocence no longer applied. He said: 'This idea of this presumption of innocence is over. Mr. Ford had a fair trial....'"
Is this permissible?
A split 2-1 9th Circuit panel in Ford v. Peery (9th Cir. - Sept. 28, 2020) says no (and that the error was not harmless, either). Judge Nelson thinks it is permissible (and that, if it was error, it was harmless).
California Courts of Appeal are split on the issue. See here.
What do you think?
For clients on a budget, that is the question. Clients often assume that's where the magic happens. Yet many judges can seldom recall a case where oral argument mattered. And preparing for argument is time-intensive, and thus expensive.
BUT! If you are expected to show, BE THERE!
Link to Ben Shatz's article here.
Should you include attorney fees in your 998 offer? Or stay silent on them? That question came up this week, and this recent case suggests it is probably coming up for a lot for many of attorneys -- particularly those of us who did not find the choice between law school and accountancy school a particularly vexing one.
Defendant makes 998 offer for $12,001. Silent on pre-offer fees/costs. (Thus, by law they are added to the offer.)
Plaintiff declines.
At trial, plaintiff recovers $11,490. And is entitled to pre-offer fees/costs. So trial court rules that $12,001 was LOWER than $11,490.
Held: Reversed. The Fourth Appellate District explained that the 998 offer, because it was silent on pre-offer fees/costs, included them. So the comparison was:
$12,001 + (F+C) versus $11,490 + (F+C)
Drop (F+C) from both sides of the equation and you get $12,001 > $11,490. Plaintiff should have taken the 998. No post-offer fees and costs for you -- defendant gets to recover post-offer fees and costs.
Still, Justice Ikola thinks this is overly complicated and suggests that the Legislature consider simplifying it.
Martinez v. EatLite One (Cal. Ct. App. D4d3 Oct. 3, 2018)
https://lnkd.in/gGxta5C
The Ireland Supreme Court held this week that Subway's bread, having a sugar content of 10% of the weight of flour, fell out of the tax-free "staple food" category and fell instead into the "all other confectionary and bakery products" category.
All this time I thought I was eating really bad sandwiches, turns out I was really eating really bad éclairs.
Back in our own country, the high court in 1893 declared a fruit, the tomato, a vegetable. I have heard people snipe at that juridical intrusion into the province of horticulture, but I think we ought to accept it, and leave the finer distinctions to others. The fox knows a tomato is a fruit. But the hedgehog knows not to put it in a fruit salad. The philosopher wonders if Ketchup is a smoothie.
And that is why professors have tenure.
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast.
In episode 5 we discuss California cases and procedures in impacting making and challenging peremptory challenges to jurors and motions for reconsideration.
Appellate Specialist Jeff Lewis' biography
Appellate Specialist Tim Kowal's biography
Sign up for Tim Kowal’s Weekly Legal Update
Cases and Laws mentioned in this episode
AB 3070 – New law governing Peremptory Challenges
Rule 8.108 – Appellate Extensions for Motions for Reconsideration
Branner v. Regents of Univ. of Cal. (2009) 175 Cal.App.4th 1043
Marshall v. Webster (Aug. 27, 2020, No. C088240) 2020 WL 5051525
Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894
Rowan v. Kirkpatrick(Sept. 4, 2020, No. A160568).
King v. U.S. Bank National Association (2020) 52 Cal.App.5th 728
Pankey v. Petco Animal Supplies, Inc. (2020) 51 Cal.App.5th 61 [depublished]
Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431
Conservatorship of O.B. (2020) 9 Cal.5th 989
Thurston v. Fairfield Collectibles of Georgia, LLC (2020) 53 Cal.App.5th 1231
Margeson v. Ford Motor Co. (Sept. 22, 2020 Case No. B287445)
Martinez v. O'Hara (2019) 32 Cal.App.5th 853
Pavone v. State Bar of California (2:20-cv-07193)
Bus. & Prof. Code, § 6068
Transcript:
Tim Kowal : 0:04
A single complete valid motion, not one that is later assembled from constituent parts, some Frankenstein monster. Announcer : 0:15
Welcome to the California pela 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 : 0:30
Welcome, everyone. I'm Jeff Lewis. Tim Kowal : 0:32
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 five of the California appellate law podcast. Today we'll be discussing some recent cases involving motions for reconsideration. These recent cases highlight the importance of correctly navigating the deadlines to appeal. But first, Jeff, I thought we've discussed this new bill out of the California Legislature AB 3070. It's a new bill that will drastically curtail peremptory challenges to jurors in California Courts. The bill has passed both chambers of the California Legislature and is now awaiting the governor's signature, which I expect he will sign the bill will amend section 230 1.7 of the California Code of civil procedure concerning jury selection. In short, it prohibits attorneys from excluding jurors based on their membership in a protected class. Certainly a laudable goal. But in the process, I suspect we may see a seismic impact on jury selection. What do you think, Jeff? Jeff Lewis : 1:56
Well, you know, look peremptory is have been around forever. And it has long been the law of the land that you cannot exercise peremptories -- that means challenging a juror and eliminating them from the jury -- it has long been the law you can't do that on the basis of a protected class such as gender or race. This law imposes a lot of structure on how lawyers can assert objections regarding the use of peremptories, and some interesting structure about how the Court of Appeal is to treat challenges made on the basis of peremptories. And I think at the end of the day, there's probably going to be a chilling effect on the number of peremptory challenges that are asserted by trial lawyers, because they don't want to step into the morass of, of the of the process and the structure that we're about to discuss. Tim Kowal : 2:51
Am I correct, Jeff, that there has not really been any teeth in the prohibition against making peremptory challenges against jurors based on protected classes? Jeff Lewis : 3:02
Yeah, yeah. There have to have been no statutory teeth that's for sure. Tim Kowal : 3:07
I suppose if a litigant were to come right out and say, I don't want juror number seven, because she's so and so. But I don't I don't guess any attorney is going to be overt. Yeah, so just doesn't happen. Right. So here's some of the nuts and bolts of AB 3070. That would put some teeth in the prohibition against peremptory challenges against jurors for based on protected classes. First, any peremptory challenge would be subject to objection by the objecting party. The objecting party may claim that the challenge was motivated by the by the jurors race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or and I thought this was interesting, quote, perceived membership in any of those groups and quote, that ladder clause, I thought, seemed an especially likely source of litigation. Jeff Lewis : 4:06
Yeah, what you call it interesting as what appellate lawyers call full employment, I think there'll be a lot of litigation over that phrase "perceived membership" in any of these groups. Tim Kowal : 4:16
Yeah, I think you may be right. There's also a list of other factors in AB 3070, that now may not be considered in challenging adjure. And those include, among other things, quote, dress attire or personal appearance and, quote, as well as employment in a field that disproportionately serves members of protected groups. And I thought this one was interesting as well quote, a parent friendliness and quote with another prospective juror who is a member of a protected group. So I take that to mean if a juror is not a member of a protected class, but is apparently friendly with another juror who is and that friendly jury jury is challenged that could be subject to an objection. Jeff Lewis : 5:02
Yeah. So and I don't know how you establish a parent friendliness and you know, oftentimes, reporters, transcripts regarding jury selection are not even fully transcribed when I get the file. So I could see that as a result of inclusion of these phrases, such as apparent friendliness. So we're going to see a lot more reported transcripts, including jury selection as part of our review of appeals. But let me ask you this, Tim, assuming the objecting party states one of these grounds what happens next? Tim Kowal : 5:34
Well, at that point, the burden is on the party who made the peremptory challenge. The party who made the challenge, quote, shall state the reasons the peremptory challenge has been exercised and quote, now, Jeff, you and I have both participated in selecting juries. I don't think I've ever acted on any invidious discrimination. But that does not mean my motivations were all perfectly polite. And more importantly, some of the reasons go to my trial strategies that I wouldn't be happy to divulge in open court in front of my adversary. And just to be literal for a moment, a challenge that is peremptory is one that is not subject to debate or challenge. So we should be clear that this bill effectively ends peremptory challenges in California, presuming it can fall under one of these objections under AB 3070. A. Jeff, are you as concerned as I am about this requirement to state the reasons for exercising a peremptory challenge? Jeff Lewis : 6:30
Well, let me give you a lawyerly answer, yes, and no. You know, it adds a couple layers to the jury selection process, not only you have to think about what's in the best interest of your client terms of picking an optimal juror, but you also have to evaluate whether your peremptories or the other side's show some sort of pattern of discrimination in the middle of jury selection, you don't want yet another thing to think about. You're thinking about opening statements, to think about witness issues. You think about a million things and this additional layer of concern about whether or not you're going to trigger an objection from the other side or whether you should be objecting to the other side is something that I think trial lawyers are going to find burdensome. So you could find that peremptories, there'll be some sort of chilling effect and fewer parameters are going to be exercised. On the other hand, you know, there's already a ban on discriminatory exercise of peremptory challenges. So will this really impact the way Trial Lawyers pictures and the way Courts of Appeal review them? I'm not sure. I'm not sure. Tim Kowal : 7:34
Just a circle back to a point you made a minute ago about having a court reporter during the year. Judges tend to ask counsel if they want the court reporter during jury voir, dear, and I think I always tend to, to keep the the court reporter even during voir dire, but I would certainly do. So now. If AB 3070. becomes the law. What about you? Yeah, Jeff Lewis : 7:57
yeah, the better question from the judge would be Do you want to go call your insurance carrier about whether you should waive reporter? Tim Kowal : 8:05
Yeah. All right. So back to the new peremptory challenge procedure. Once the objection is made, and the challenging party states the reason for the challenge, the judge will then make a ruling and making the ruling. The judge may not speculate about any other possible legitimate reasons that the challenging party might not have stated. So back to my point earlier about, maybe you want to give some some more sanitized reasons that would justify your challenge without having to divulge maybe your sub Rossa purposes that more that go into your letter may be legitimate. But but we've been to your trial theories and strategies that you don't want to disclose in front of opposing counsel. But if you choose not to disclose all of your reasons, the trial judge may not speculate that you had any other reasons than the ones that you gave. Yeah, right. The judge then must weigh the totality of the circumstances and determine whether there is a quote substantial likelihood and quote, that an objectively reasonable person would view the Gers, membership in a protected class as being a factor in the challenge, then the objection, quote, shall be sustained, and quote, all this, I think adds up to a serious likelihood that many of these objections are likely to be sustained. What do you think, Jeff? Jeff Lewis : 9:22
I think you're right, there's gonna be a lot more objections. And you're right, that there's gonna be a lot more objections being sustained. The more interesting question I think is whether there will be a chilling effect and fewer parameters actually exercise just to avoid these objections. That's the big unknown. Tim Kowal : 9:40
Yeah, well, I think it's self evident that there will be there is going to be a chilling effect. I don't know if there's any way to measure that we'll be able to measure other than just asking different trial attorneys if they are exercising fewer objections, and Jeff Lewis : 9:54
some poor law student could be assigned by a law professor, to do a review article to review a bunch of trial transcripts from one One department for a given year and see, see what happens. Tim Kowal : 10:03
Yeah, Yeah, that'd be maybe a good subject for a law review article. Well, Jeff, let me give you an example. Let's say, let's say that you're concerned that a jers employment is closely related to the opposing party's employment. But the jury is in the same protected class as the opposing party. And you're worried that based on the totality of the circumstances, the protected class played a factor in the challenge. Now, once the objection is made, the statement of reasons is made outside the presence of the panel. But assuming the objection against your challenges sustained, how does this wind up making you look in front of that juror? Jeff Lewis : 10:41
You're wearing egg on your face in front of that juror in front of the other jurors? I've picked juries and I've interviewed jurors afterwards. And they they're human beings. They wonder why why was that person challenged? And why? Why was that person even asked to leave. And when the judge has stains, or overrules that challenge. The jurors Remember that? Tim Kowal : 11:04
The interesting angle on this that I think is not is maybe overlooked is that this law is meant to give teeth to a prohibition against excusing jurors based on suspect classes that could harm litigants who are members of that class. But from the perspective of the jurors, or the prospective jurors who are members of that class, they probably like most of us want to be excused from the from the jury. They don't want to spend the next several weeks of their life schlepping back and forth downtown to court sitting on a jury for them. They might feel like they've been slighted by this by this new law that's keeping them on jury panels. What do you think? Yeah, Jeff Lewis : 11:40
yeah, that's a good point. I have thought about that. Tim Kowal : 11:42
One more notable point from an appellate perspective about AB 3070. The ruling on the objection made by the trial judge is subject to de novo review on appeal. So from the standpoint of appellate strategy, I think this suggests that trial attorneys should be fairly liberal in making these objections, Jeff? Jeff Lewis : 12:02
Yeah, you know, that was the first thing that caught my eye looking at this statute that the Court of Appeal applies it to novo standard review. Not only does this mean that trial lawyer should be making these objections. But I assume appellate lawyers will be raising these issues and more and more appeals. And I have to say, I don't ever recall once running across any other California statute that tells the Court of Appeal, how to review a case, you know, whether to apply de novo as opposed to abuse of discretion, or substantial evidence, I find this very unusual. Tim Kowal : 12:39
Now, the bill does not say but I would suspect in addition to being reviewed de novo. There's an argument here that at the Court of Appeal concludes an error occurred in the process. The error may be per se reversible, I would argue that errors relating to composing the jury are structural in nature, which taints the entire judgment and requires reversal? Jeff Lewis : 13:00
Well, yeah, you can bet that the first lawyers who raised these issues on appeal to challenge or interpret this law will argue for per se reversal, just just as you've articulating, it's interesting to see what kind of legislative intent materials exist regarding what the California Legislature really intended here in terms of remedies. Tim Kowal : 13:18
I think this is going to be an earthquake in terms of jury selection. But I know I tend to be more excitable than you are. What do you think? Jeff Lewis : 13:25
Well, you know, look, there'll be a few quakes at the beginning, when the courts are first issuing decisions interpreting and applying this law. But once these first few cases come out, that actually tells Trial Lawyers how this law is going to be applied, I don't think much is really going to change. Because the law already prohibits discrimination against protected classes. This is more of a process issue. It gives appellate lawyers maybe more wiggle room to argue for reversal. But I think at the end of the day, it's not gonna change much for travelers. Tim Kowal : 14:00
All right, well, now let's move on to something completely different. Let's move on to some cases involving motions for reconsideration. There have been a couple of recent cases that suggest that many attorneys are falling into untimeliness traps when seeking reconsideration of unfavorable rulings. The extension rules are under California rules of court rule 8.108. Jeff, can you give us a quick rundown on the on the extension provisions provided under 8.108? Jeff Lewis : 14:28
Yeah, let me just say this. I don't do many motions for reconsideration, because to have a proper and appropriate motion for reconsideration, you truly have to have new facts or new law that weren't available at the time the original order was made. And that's a rare circumstance. So I don't really deal with this a whole lot. But what the rule says is that if if you file a valid motion to reconsider an order that is appealable the time to appeal from the order Being reconsidered is extended. And it's extended from the earliest of three possible time periods either 30 days after the clerk, or a party serves an order denying the motion for reconsideration, or 90 days after the first motion reconsider is filed, or 100 180 days after the entry of the order. That is the subject of the motion for reconsideration. Tim Kowal : 15:26
Right. So it's important not to fall into the trap of thinking that merely waiting for the denial of the motion for reconsideration, and then filing your appeal 30 days after that will give you a safe harbor and in every instance, because in many cases, a trial judge may not set your hearing on the motion to reconsider consideration until beyond 90 days after the motion was filed. At which point you are Jeff Lewis : 15:49
right. And the other key is it's got to be a valid motion, you better be better be timely, and it better be valid. If you've messed up. you've blown your your appellate rights. Tim Kowal : 15:59
Yeah, yeah, that's right. And speaking of validity of the motion, the key case on that is branner versus Regents of University of California. That's a 2009 case. All citations we reference on the podcast will be listed in the show notes. The branner. Case held that even though the appellant had attempted to cure the omission of the declaration with the subsequent filing of a subsequent declaration, and even though the trial court accepted that declaration, branner still held the motion was not valid. Thus, no extension of time to appeal under Rule 8.108 could apply. And what I took to be a rather curmudgeonly tone. The third district held that quote, a single complete valid motion must be filed, not one that is later assembled from constituent parts, like some Frankenstein monster, let's move to to our recent case from just this past August 2020. It's also a third Appellate District decision. It's the case is Marshall versus Webster. And it's an anti slap case, which is your bailiwick. Jeff, can you tell us some of the facts of Marshall? Jeff Lewis : 17:06
Well, yeah, so yeah, the it's the procedure of this case, it's most interesting to appellate lawyers. Plaintiff sued for defamation, emotional distress, the complaint was dismissed on an anti slap motion. There was a motion to reconsider, which was denied, and the defendants were awarded attorneys fees. Now, the interesting thing is the plaintiff filed a single notice of appeal seeking review of the slap, seeking review of the motion to reconsider the slap in the field award. And there's an interesting procedural history here, because in May, the trial court issued a document that was entitled, quote, ruling re defended special motion, anti special motion anti slap, close quote, and there's a certificate of clerk's mailing attached to that ruling. This is not your typical notice of entry of order that most appellate lawyers think of that will trigger the 60 days time limit to appeal. Calm qidenus this fact was that the very next month after the clerk serve that order, was a one page attorney prepared order granting the slap. And that was signed, and then a notice of entry of that attorney order was also filed and served. So and then you have this August motion to reconsider filed a couple months later. And then you have a single notice of appeal purporting to appeal from the slap the fee motion and the order on the motion for reconsider which having been heard yet is an interesting, interesting set of facts for this case. Tim Kowal : 18:38
Yeah, that is interesting. So there's there's multiple orders here. This was kind of the kind of the instance that that Alan versus American Honda said that litigants shouldn't be made to fall into traps, because there's there's so many different orders, and it's unclear which one is the appealable order. But motions for reconsideration aren't entirely uncommon after rulings on anti slap motions, are they? Jeff Lewis : 19:00
Well, in my practice, they are personally but I do see a lot of them in the reporting decisions. I wanted to ask you about this, Tim Kowal : 19:07
Jeff, because I was not aware of this rule. And this is a real cited or stated in martial. I wasn't clear if this was a ruling in the first instance or whether there are other cases that hold it has it been the rule that an anti slap order that disposes of the entire case, is akin to an entry of a final judgment. And after a final judgment, there's no jurisdiction for the trial court to hear a motion for reconsideration. You know, I have to say, I know a lot about slaps. I've done dozens of them. I knew that an order granting a slap motion is is the equivalent of an A appealable judgment. But I did not know until preparing for this podcast that a court has ruled that the court loses jurisdiction to even entertain or design a motion for reconsideration. Yeah, okay. So here's what Marshall says. Here's the quote, quote, The may 11. Order granting his anti slap motion and striking the complaint. was an appealable judgment and upon its entry and service by the clerk, the trial court lost jurisdiction to entertain or decide a motion for reconsideration. And quote that that seems significant to me. Jeff Lewis : 20:14
Yeah, it held that the motion for reconsideration is not valid after entry of judgment. Thus there can be no valid reconsideration motion of such an order and no extension. Tim Kowal : 20:23
Right. And as we learned from the branner case, if there is no valid motion for reconsideration, there can be no extension of time to appeal under Rule 8.1 await which plaintiff had relied upon. So the result is that plaintiff's appeal was dismissed. Jeff Lewis : 20:37
Yeah, this is yet another way you can injure your appellate rights via reconsideration motion proceed with caution. If you are relying on the appellate extension rules from reconsideration motions. Tim Kowal : 20:47
Here's another interesting bit from the marshal opinion. The California Supreme Court decision in Allen American Allen versus American Honda has struck again, Alan is an important case that's used to determine when the time to appeal begins running under rules of court rule 8.104. We discussed Allen in Episode Two. The third district here relies on Alan versus American Honda, for the proposition that an otherwise non appealable order a an allen It was a statement of decision. Here. It's a minute order, that that a non appealable order may be appealable in the courts discretion. But the often overlooked conclusion of Allen is that the Supreme Court found it was error to find the statement of decision appealable. It wasn't an abuse of discretion, but it was legal error. The High Court and Alan versus American Honda didn't explain that conclusion. But presumably it had to do with the liberal policy of quote, according the right to appeal in doubtful cases and quote, rather than dismissing appeals on technical grounds, but here the third district like many other districts feels it is compelled to treat the minute order before it, though such orders typically are not appealable as appealable with the result that the appeal is dismissed on technical grounds. So sometimes what the courts say may be different from what they do. So again, be very wary. You know, just as we were getting ready to record this episode, I ran across another recent appellate decision involving another motion for reconsideration. That case is Rowan versus Kirkpatrick out of the first district Division Three. That case involved orders concerning civil harassment restraining orders, and the deadline to appeal those orders failed during the COVID extension periods earlier this year. That period ended the day the Superior Court reopened on June 1 and appellant filed a motion for reconsideration the next day on June 2, but the 10 day period to file that motion under go to civil procedure section 1008 had expired in early March before the COVID extensions. The Court of Appeal treated the motion as a renewed motion for restraining orders. So it didn't just deny it outright. But as a motion for restraining order. It was not a motion for reconsideration. So the rule 8.108 extensions applicable to reconsideration motions did not apply. The court tried to soften the blow a bit saying in closing quote, although we recognize the distinct possibility that some litigants may have been denied the right to appeal through no fault of their own. We leave those concerns for another day. The first district goes on to suggest the possibility that forgiveness from the otherwise harsh appellate deadlines may be available due to COVID. But the appellant here, quote, does not contend she was prevented in any way from timely filing notices of appeal and quote. So I think that you might still be able to get relief from an untimely appeal, if you have a COVID excuse but it has to be a honest to goodness COVID excuse. Right, while on the subject of post judgment motions. Here's a good cautionary tale about moving for new trial. This recent case is king versus US Bank. It's out of a third district from July. At the trial. In that case, the jury had returned a monstrous verdict against US Bank for wrongful termination of plaintiff in the amount of $24.4 million. After the bank successful new trial motion, judgment was entered in a vastly reduced amount of $5.6 million. So that was a pretty effective new trial motion. But unfortunately for the bank, the bank wasn't done. The bank appealed, which wound up being a very bad move. That's because the plaintiff having consented to the remittitur in the judgment, waived his right to appeal, but when when the bank appealed, plaintiff had the right to cross appeal, which he did. The Court of Appeal agreed with plaintiffs cross appeal and reversed parts of the new trial order reducing the award. The upshot is that a modified judgment was entered in the amount of $17.1 million, which was triple what the bank had against it. You Before it decided to appeal, Jeff Lewis : 25:02
wow, I would have loved to have seen the the disclosure and advice letter by the appellate lawyers to the bank in advising the client to proceed in that fashion. In reviewing this decision and also looks like US Bank had a good argument to challenge the irregularity at trial, but found that was waived. The Court of Nevada was waived because US Bank failed to include its Memorandum of points and authorities in support of its new trial motion in the pellets appendix on appeal. So another another misstep by this appellate attorney. Tim Kowal : 25:37
Yeah, that's that's a devastating result to have to bring back to the client. So let's get on to some other recent cases that may be of some significance to practitioners. The first one that I that jumped out at me was pankey vs Petco animal supplies. It involves a fourth district division one divided opinion about a pet rat that tragically gave a 10 year old boy a fatal bacterial infection. The fourth district affirmed a defense judgment for Petco and the boy's parents sought review in the Supreme Court. Yeah, Jeff Lewis : 26:10
clients with sympathetic cases often asked about the remedies in the state Supreme Court. But the supreme court does not look at cases the same way the Court of Appeal looks at cases and certainly not the way the trial court looks at cases. Tim Kowal : 26:24
Right. This is a good example of that the fourth district held quote, a live pet animal sold in its unaltered state is not a product subject to the design defect, consumer expectations theory of strict products liability and quote. But justice dado dissented, he would have found that a rat fits the legal definition of product. I think I agree with justice dado here, just on the definition of product, it might not fit a layman's definition, but I think it fits the legal definition. Jeff Lewis : 26:54
Well, let me just go on a rant here and just say this, I just had a $4,000 bill to my car to get it fixed because rats eat out the engine. I think during COVID, with us driving our cars, less than less rats have invaded everybody on my street. So I have a bias against rats. But let me just say this, I tend to favor the approach of the dissent here. You know, when a consumer buys a rat from a trusted source such as Petco, they expect some sort of screening or quality assurance and expect some sort of consumer protection, and would look to the courts for consumer protection here. And this is a real disservice. I disagree with the results here. Tim Kowal : 27:39
Yeah. So we have a situation where the the fourth district majority says a rat is not a product and justice dado and Jeff and I disagree and think that a rat is a product. But how does this come out? Unfortunately, we don't know because the supreme court denied review. Jeff Lewis : 27:57
Well, we know the fourth districts answer. Tim Kowal : 28:00
Yeah. But the but the supreme court also decided to de publish the fourth districts opinion. So we're left with no Supreme Court decision and an unsuitable fourth district majority opinion and an equally unsuitable justice dado dissent. So where does that leave us? Jeff Lewis : 28:18
Yeah. Where's it leave Petco? I mean, I guess they could try, but they couldn't expect that this defense will work the next time around. Tim Kowal : 28:25
Yeah, I wonder if that was the Supreme Court's intent is to let the results stand but don't let Petco rest on its laurels. Perhaps this is my cynicism, but I tend to find the practice of de publication to be somewhat mischievous. Maybe we can devote a future episode to this. Okay. Let's do it. The next recent significant decision also comes from the fourth district, holding that Amazon may be held strictly liable for product defects. Jeff Lewis : 28:55
Right. This is the Bolger v Amazon case and plaintiff bought a laptop battery from linode. Technologies HQ Unlimited, but bought it through Amazon. The battery exploded while plaintiff was using it causing serious burns and hospitalization. Plaintiff sued Amazon and Amazon moved for summary judgment which was granted up to the fourth Appellate District it was reversed Amazon and was held to have inserted itself into the chain of distribution. Amazon charged for the purchase and stored, packaged and delivered the product. Tim Kowal : 29:30
I thought it noteworthy that the United States Chamber of Commerce appeared as Amica is for Amazon here, I guess make that what you will the next case that I think is important for trial and appellate practitioners. Back in July, the Supreme Court in conservator conservatorship of ob held that when the heightened clear and convincing evidence standard of proof applies at trial. It also affects the way an appellate court must address the evidence. Jeff Lewis : 29:58
Yeah, right. previous cases head held that this issue kind of fell away on appeal and back findings were all reviewed under the deferential substantial evidence standard. So if the trial court did not apply the clear and convincing standard, under prior law, it didn't really matter. But now with this new case, now more than ever, this is a good issue to consider raising on appeal. Tim Kowal : 30:19
The next seemingly momentous decision again out of the fourth district gives California Courts jurisdiction over out of state online sellers who operate a website if that website fails to comply with California accessibility laws. The case is Thurston versus Fairfield collectables of Georgia LLC. Jeff Lewis : 30:40
The fourth district noted that although the Georgia seller here does not direct sales to California 8% of its sales were to California and this factor supported the fourth district's conclusion finding adverse selection in California, Tim Kowal : 30:55
I found this 8% factoid to be particularly unpersuasive, since California represents 12% of the national population. So from that vantage, the seller actually undersold to California residents, but I'm worried Jeff, perhaps, could all commerce soon be regulable. under California law via private action, under the principle in this in this fourth district case? What are the limits? Jeff Lewis : 31:21
Yeah, I found this decision perplexing. There are no real limits, at least in the fourth Appellate District, and businesses outside of California don't have much guidance in terms of the outer limit of when they could be called into a California Court. So a their counsel for out of California businesses are probably going to advise them either not to do business in California or out of an abundance of caution. comply with comply with California's laws. Tim Kowal : 31:50
No Justice munnetra has had it as a dissent here, doesn't he? Jeff Lewis : 31:53
Yeah, he just sent it. He said the Fairfax. The Fairfield website is no more directed at California residents and anyone else on earth who speaks English has access to the internet. Tim Kowal : 32:04
Yeah. Obviously, I tend to agree with Justice munnetra is here. And here's a here's an appellate zinger from the case the appeal is from an unsigned minute order. There are some very fine lawyers who will tell you perhaps even remotely that minute orders are not appealable. As this case illustrates, this advice should come with a very big asterisk. Jeff Lewis : 32:26
Yeah, you know, these days most of my answers on appellate jurisdiction begin with the phrase it depends and end with just in case let's file multiple notices of appeal because no appeal was ever denied. or lost from filing multiple notices. Tim Kowal : 32:40
Yeah, that's right. Jeff Lewis : 32:42
All right. One more case to discuss. Also hot off the presses. This is the largest in vs. Ford Motor Company case. It's unpublished, issued September 23. It came out of division five, the second district which is a very difficult panel to win in front of in my experience, I do not enjoy going in front of that panel as an appellant they are tough group of justices. In this case, they upheld a fraud claim against Ford Motor Company regarding the sale of a truck and they struck down a punitive damages award and remanded the punitive damages award for a re trial. The Court of Appeal found that plaintiff's expert barber Luna serve the rule the jury in a $1.4 million award of punitive damages was reversed. And I found this decision interesting. For two reasons. First, plaintiff's expert barber Luna Luna was allowed to testify as to indicia of fraud. She reviewed a stack of documents. And she testified that in her expert opinion that these documents were indicia that Ford acted with fraud. I was really surprised that this testimony was allowed in at trial and more surprised the Court of Appeal affirmed. This does not seem to me to be appropriate rule for an expert. Testimony as described an opinion seemed more like argument of counsel. She claimed that after reviewing enough documents over the year, she could discern patterns of fraud, and even smell and taste fraud. I don't know what fraud smells and tastes like an expert. Tim Kowal : 34:12
Apparently, in this case, it seems Jeff Lewis : 34:15
The second reason I found this case interesting is when she offered opinion on the amount of punitive damages to the jury, she suggested the outer limit of punitive damages based on her review of case law was 10% of Ford's net worth. That's where the second district stepped in and said she crossed the line and that was not appropriate expert testimony. That's the reason it will be remanded for a new trial. Tim Kowal : 34:37
Interesting. So in the end, the whole thing gets thrown out even though the the court wasn't flummoxed by Barbara Luna, giving expert testimony on what fraud smells and tastes like in terms of a liability determination. Right? Well, yeah, that does seem like it crosses the boundaries of proper expert testimony. It may be a good idea when you get your opponent's expert disclosure to run a search on Westlaw. See if the expert has made herself conspicuous to reviewing courts and past cases, if you're dealing with a particularly boisterous opposing expert may need to be prepared with objections. Jeff Lewis : 35:10
Yeah, absolutely. one bit of news I also wanted to bring up during our podcast has been update on this case of Martinez versus O'Hara. This was a case involving beforethe Appellate District Division Three, Justice five will sanction a lawyer and how to report it to the state bar for being disrespectful to the trial judge. The notice of appeal in this case was not the standard Judicial Council form that most lawyers use when appealing bonuses instead an attorney drafted order and this this lawyer who was appealing wrote as follows the rulings "succubustic," I think I mispronounced that "succubustic adoption of the defense position and resulting validation of the defendants psuedohermaphroditic misconduct prompt one to entertain, reverse peristalis unto its four corners." I've never read a notice of appeal like that. Have you? Tim? Tim Kowal : 36:11
No, no, I haven't done. That kind of language is typically not but maybe not intended to be read out loud it causes to one causes one to blush Jeff Lewis : 36:20
and also to mispronounce that. He also said in the same notice of appeal, that plaintiff never actually received a copy of a signed judgment. He suggested as follows. "it appeared apparently, in a apparently cynical attempt to suppress notice of the judgment in order to thwart review," thereby suggesting the trial lawyer suggested the trial judge was intentionally trying to avoid review of the decision. So listen, this decision was sent to the State Bar he was sanctioned, and the State Bar initiated proceedings. And now the San Diego attorney Benjamin Pavone, has filed a federal lawsuit to challenge the State Bar proceedings that arose from the case. And specifically he wants to block enforcement of the due respect provisions of the Business and Professions Code that require attorneys to be respectful to judges. So while the Martinez cases over the state bar proceedings are proceeding and this it'll be interesting to see what happens with this federal lawsuit challenging the rules requiring us lawyers to be respectful to trial judges. Tim Kowal : 37:29
I'm just interested interested to see how quickly it gets dismissed. Jeff Lewis : 37:35
Right and whether or not there's a motion to reconsider? Well, I think that wraps up this episode. Tim Kowal : 37:40
If you have suggestions for future episodes, please email us at calpodcast@gmail.com. That's c-a-l podcast@gmail.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. See you next time. Announcer : 38:00
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TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here.
Under AB 3070 now awaiting Gov. Newsom's signature, any peremptory challenge to a juror would be subject to objection as motivated by the juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, "or perceived membership in any of those groups." The latter clause strikes me as an especially likely source of litigation.
There is also a list of other factors that now may *not* be considered in challenging a juror, including "dress, attire, or personal appearance," employment in a field that disproportionately serves members of protected groups, and "apparently friendliness" with a juror who is a member of a protected group.
Upon objection, the party who made the challenge "shall state the reasons the peremptory challenge has been exercised." So be ready to explain your jury selection strategy very, very carefully.
And the ruling on the objection is subject to de novo review on appeal.
If this is enacted, consider this very carefully before your next jury trial.
https://lnkd.in/g2Uurtt
Motions for reconsideration are common after adverse rulings, such as rulings granting Anti-SLAPP motions. And reconsideration motions extend the time to file an appeal. But the Third Appellate District recently held that an Anti-SLAPP order that disposes of the entire case is akin to entry of a final judgment. As the court puts it:
"[T]he May 11 order granting his anti-SLAPP motion and striking the complaint was an appealable judgment, and [] upon its entry and service by the clerk, the trial court lost jurisdiction to entertain or decide a motion for reconsideration."
Why is this significant? Because a motion for reconsideration is not valid after entry of judgment. Thus, there can be no valid reconsideration motion of such an order.
And no valid motion, no extension of time to appeal under CRC 8.108, which plaintiff had relied upon. Result: Plaintiff's appeal dismissed.
This is yet another way you can injure your appellate rights via reconsideration motions. Be wary.
Also: The California Supreme Court decision in Alan v. American Honda strikes again. Alan is an important case used to determine when the time to appeal begins running under Rules of Court rule 8.104. The Third District relies on it here for the proposition that an otherwise nonappealable order -- a statement of decision in Alan; a minute order here -- may be appealable, in the court's discretion. But the oft overlooked conclusion of Alan is that the Supreme Court found it was error to find the statement of decision appealable. Not an abuse of discretion, but legal error.
The high Court in Alan did not explain this conclusion, but presumably it had to do with the liberal policy of “according [the] right [to appeal] in doubtful cases," rather than dismissing appeals on technical grounds.
Yet the Third District, like many of districts, feels it is compelled to treat the minute order before it -- though such orders typically are not appealable -- as appealable. With the result that the appeal is dismissed... on technical grounds.
What the courts say is often different from what they do. Again, be wary.
Marshall v. Webster (Cal. Ct. App. Aug. 27, 2020) C088240. https://law.justia.com/cases/california/court-of-appeal/2020/c088240.html
The appellate attorneys in this case over alleged police misconduct worked valiantly on appeal, and convinced the Third Appellate District that the trial court had abused its discretion in excluding a report critical of the police department's handling of a bank robbery that had left multiple dead, including a hostage.
The bad news: The error was harmless. The Court of Appeal concluded that, even considering the report, summary judgment for the department nonetheless was appropriate. Judgment affirmed.
The opinion has useful discussion of the adoptive-admission exception to hearsay, holding that the party or representative does not need to subjectively believe in the truth of the matter; instead, if there is a "manifestation" of adoption of the matter, it qualifies under the exception.
Koussaya v. City of Stockton, No. C089159 (D3 Sept. 21, 2020). https://lnkd.in/gh_7h6e
C089159.PDF
Researchers from Michigan State and University of Wisconsin find that "an attorney who formerly clerked for a justice is 16
percent more likely to capture that justice’s vote than an otherwise identical attorney who never clerked." Compared to a former clerk for a different justice, the effect is similar, 14-16%.
“In the scheme of social science research, it’s uncommon to see something that moves that much,” .... “We usually are able to see something like a 5% point change, with a little spin on it. But this is a sizable effect.”
The effect plays prominently in 5-4 cases. The authors highlight Peugh v. United States, where Justice Kennedy cast a surprising vote for the 5-4 majority, the only liberal vote Kennedy ever cast in a bank-robbery case. "Perhaps it ought not to have been surprising though," the authors write. "It was his former clerk, Stephen Kinnaird, who argued on behalf of Peugh."
(This is among the many reasons I believe the justices of the Supreme Court should be made to sit on a rotation basis, rather than hold permanent seats.)
https://lnkd.in/grVzndk
Trial Judge: The sentencing guidelines of 97 to 120 months' prison for downloading 1,000 images of children being raped seems too harsh. Sentence: 12 months' home confinement.
Court of Appeals: No. The sentence ignores the severity and fails to account for deterrence. Vacated and remanded.
Trial Judge: No it doesn't. Same sentence.
Court of Appeals. Yes, it does. Vacated and remanded for reassignment to a different judge.
https://lnkd.in/g9K8naT
Forgot to mention an amusing line from that Second Appellate District decision I referenced earlier. Respondent, a special probate administrator, thought it would be a good idea to pick nits over five documents in appellants' appendix, filing a motion to strike them in the Court of Appeal. Turns out the respondent had included four of them in her own trial exhibits, and the fifth was of undebatable relevance. The Court summed up:
"We find plaintiffs' motion baffling and pointless, and no legal authority requires us to grant it. We accordingly deny it, and turn to the merits of the appeals."
I do not think the attorneys will get their fees for that motion paid from the estate.
B268380.PDF
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here.
The First Appellate District (Rowan v. Kirkpatrick, A160568) observes that while the Covid-related extended deadlines have passed, "Courts have long recognized the policy, based on the remedial character of the right of appeal, to accord that right in doubtful cases when it can be accomplished without doing violence to applicable rules." The court concludes: "Here, however, Kirkpatrick does not contend she was prevented in any way from timely filing notices of appeal...."
Which suggests -- does it not? -- that the Court was prepared to consider other circumstances amounting to good cause to extend the time to appeal.
(Is it sinking in that appellate deadlines are not truly "jurisdictional" as it is often said?)
https://lnkd.in/dKFTaf2
Clients with sympathetic cases often ask about their remedies in the state Supreme Court. But the Supreme Court does not look at cases the way the Court of Appeal looks at cases, and certainly not the way the trial court looks at cases.
Case in point: A 10-year-old boy died from a bacteria carried by a pet rat his grandmother bought from Petco. Defense judgment for Petco.
The Fourth Appellate District in Pankey v. Petco Animal Supplies, Inc., holds: “a live pet animal sold in its unaltered state is not a product subject to the design defect consumer expectations theory of strict products liability.”
Justice Dato dissents: a rat fits the legal definition of "product."
The Supreme Court denies review. So the decision of the Fourth District stands. But the Supreme Court also depublishes the Fourth District's opinion.
So what is the lesson of this case? Does the boy's family come away with justice? Do pet retailers come away with a dependable defense?
Your thoughts?
https://lnkd.in/dwDi_ty
Expect to hear more about this.
Plaintiff bought a "Lenoge Technologies HK Ltd." laptop battery from Amazon. The battery exploded while plaintiff was using it, causing serious burns and hospitalization. Plaintiff sued Amazon, and Amazon moved for summary judgment, which was granted.
Fourth Appellate District: Reversed. Amazon inserted itself into the chain of distribution. Amazon charged for the purchase, and stored, packaged, and delivered the product.
The U.S. Chamber of Commerce appeared as amicus for Amazon here.
Bolger v. Amazon.com, LLC (8/13/20) D4d1 case no. D075738, available at https://lnkd.in/gk-_dFa.
D075738.PDF
More ink on the recent holding that the clear-and-convincing standard must be considered on appeal. (https://lnkd.in/g4dhaDc. Paywall. Here is a short, free post: https://lnkd.in/ghVeSpD.)
Previous cases held it fell away on appeal, and fact findings were all reviewed under the deferential "substantial evidence" standard. But even that rule was not without exception. For example:
“the erroneous application of the preponderance of the evidence standard rather than the clear and convincing evidence standard . . . . have analyzed the error under the Watson standard [People v. Watson (1956) 46 Cal.2d 818] and required a showing it was reasonably probable the appellant would have achieved a more favorable result under the proper standard of proof.” (Conservatorship of Person, supra, 218 Cal.App.4th at p. 535.)
So if the trial court did not apply the clear and convincing standard, now more than ever it is a good issue to consider raising on appeal.
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here.
Beware Appealing Questions of Law on a Preliminary Injunction: Does New Jersey's ban on large capacity magazines violate the Second Amendment?
Third Circuit: We already decided that it does not when we denied the plaintiffs' motion for a preliminary injunction, so we're bound by the law of the case and cannot reconsider.
There is a vigorous dissent. But the affirmance of the preliminary injunction in the prior case ends this one.
Link.
h/t Institute for Justice
More CA Jurisdiction Means More Jobs for CA Plaintiff Lawyers California plaintiffs may sue an out-of-state online seller for operating a website that fails to comply with CA accessibility laws, a recent Fourth District decision holds. Though the GA seller does not direct sales to CA, the Court found specific jurisdiction because 8% of its sales were to CA.
But CA represents 12% of the national population, so the seller actually UNDERSOLD to CA.
I am having Wickard v. Filburn flashbacks -- perhaps all commerce may soon be regulable under CA law via private action?
Justice Menetrez dissents: "The Fairfield website is no more directed at California residents than at anyone else on Earth who speaks English and has access to the Internet."
And an appellate zinger: The appeal is from an unsigned minute order. There are very fine lawyers who will tell you, rotely -- perhaps even involuntarily, as though by muscle memory -- that minute orders are not appealable. As this case illustrates, this advice should come with a very big asterisk!
Calif. App. Court (4th Dist) Rejects Jurisdictional Challenge in Website Accessibility Case | Lexology
Pre-Trial Waivers of Jury Trial Not Enforceable in CA -- even in the guise of a forum-selection clause.
So ruled a CA Superior Court recently. (https://lnkd.in/dQwpq35)
But it is not really news, as the First District Court of Appeal held the same a few years ago. (https://lnkd.in/diNW5bV)
And contractual jury waivers have been held invalid for some time. (https://lnkd.in/dWC5bME)
So your right to a civil jury trial is still safe.
We still do not know when we will ever hold civil jury trials again.
But you still have a right to one.
In theory.
Link.
This Is Your Second Warning: A Second California State Court Judge Says the ADA Covers Online-Only Businesses
If you are not sure whether your website is ADA compliant, contact a professional website developer immediately... before a professional ADA plaintiff contacts you!
A Second California State Court Judge Says the ADA Covers Online-Only Businesses
Will Trial Courtrooms Pandemic Changes Become Permanent? Michigan Chief Justice Bridget McCormack testified recently to a Congressional subcommittee that the pandemic "may be the disruption we needed to transform our judiciary into a more accessibly, transparent, efficient and customer-friendly branch of government."
“There’s something about the equalizing nature of all the Zoom boxes being the same size that makes people feel more heard and more respected,” she said. “Maybe it’s just less intimidating.”
"We must rebuild what we do from the ground up and create a 21st century justice system.”
https://lnkd.in/ggNeqGJ
Meanwhile, appellate practice also surges toward progress at a dizzying pace. This recent article on "Typography for Judges" signals what's ahead: "Real em dashes — not two hyphens autocorrected as en dashes."
https://lnkd.in/gmNVDqu
I guess what counts as major technological advances may be relative.
No File-Stamp, No CRC 8.104 60-day Appellate Deadline
Appellant waited to file a notice of appeal more than 90 days after the appealable order. Respondent moved to dismiss the appeal, which was denied. In the full opinion, the First District explains, yes, the order was appealable, but because it was not "file stamped" by the clerk, the 60-day deadline did not apply.
That was a bold move by Appellant, with no upside. I would not advise hanging the fate of your appeal on the existence of a file stamp.
And had Respondent served a Notice of Entry, the appeal would have been dismissed as untimely.
Valuable Lesson on Appealing New-Trial Motions: Do Not Get Greedy
Verdict against US Bank for wrongful term plaintiff: $24.4 million.
Judgment after bank's successful New Trial motion: $5.6 million.
Bank then appeals, unsuccessfully.
This was a very bad move for bank. Here is why:
Plaintiff, having consented to the remittur in the judgment, waived his right to appeal. But when bank appealed, plaintiff had the right to cross-appeal, which he did. The Court agreed with plaintiff's cross-appeal, and reversed parts of the new trial order reducing the award.
Result: Modified judgment of $17.1 million. Triple what he had before bank appealed.
Insult to injury: US Bank's challenge to irregularity at trial was waived because US Bank failed to include its memorandum of points and authorities in support of its new trial motion in its appellant's appendix on appeal.
King v. U.S. Bank N.A., No. C085276 (D3 Jul.28, 2020), C085276.PDF
Traffic Medians Are Free Speech Zones
Free speech rights on Facebook? Twitter? YouTube? Y'know, the places where everyone is?
Private platforms, so -- likely not.
But a right to speak from traffic medians? Tenth Circuit says: Yes! (Though concurrence worries about really narrow medians.)
Aren't Constitutional rights amazing? They're like the weeds that grow between the cracks in the pavement. Or in the traffic medians.
(For curious cases like this you really ought to follow the delightful Institute for Justice weekly newsletter.)
https://lnkd.in/gxp3Kfa
TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here.
NOT the Schoolhouse Rock Version of Cal. Supreme Court Review.
First, a chilling Third District decision says if a sheriff's deputy asks you to check on a neighbor, omits the fact the neighbor had whispered her call to the 911 dispatcher, with the result that you are near-fatally stabbed in the neck by the neighbor's murderer, you have no remedies except worker's comp.
So how did this get to the Cal. Supreme Court? Petition for review? No. Instead, a third party named John Hsu from Berkeley (not even in the Third Appellate District!) petitioned the Supreme Court to depublish the opinion. Mr. Hsu said he found the Third District's decision so chilling it ought to be depublished.
Did the Supreme Court depublish? No. It granted review. Did the Supreme Court reverse? No. It affirmed. Just another posse comitatus case. (Justice Groban, joined by Justice Chin, dissented: they think the deputy's statements & omissions matter.)
A bizarre case.
Links: https://lnkd.in/gTedxUd
And: https://lnkd.in/gitg5_J
Preliminary Injunctions Covered on the CAL Podcast:
In a recent episode of the California Appellate Law Podcast, Jeff Lewis and Tim Kowal tell trial attorneys how to get an edge on their next preliminary injunction motion. www.CALpodcast.com. Highlights:
Please tune in & share.... And please SUBSCRIBE in your podcast app!
Summary Judgment Appellate Tip:
In our previous episode of The Cal. Appellate Law Podcast (www.CALpodcast.com), Jeff Lewis and Tim Kowal covered Mosley v. Pacific Specialty Ins. Co. (E071287), a May decision out of the Fourth District, which reversed a summary judgment based on grounds never raised in the trial court. The decision offers comfort to any trial attorney who has awoken in the middle of the night, bolt upright, awash in horror, realizing a key argument was left not raised at the hearing the day before. Because, as Mosley nicely explains, it is for the party *moving* for summary judgment to carry the burden that judgment is required AS A MATTER OF LAW. A legal argument can never be forfeit by the nonmoving defendant's failure to raise it in opposition, because that goes to the moving plaintiff's initial burden.
But now we have learned that, a month earlier in April, the Second District issued a decision in People v. Braum (B289603, B289604), upholding a summary judgment against a defendant landlord, finding the landlord's legal argument -- challenging the city's legal authority to require a landlord to evict a tenant -- was forfeit because not raised in the trial court.
Curiously, the court published the decision...except for that analysis.
A petition for review has been filed. (And, unfortunately, was recently denied.)
The statement of decision is a key time to bring in appellate counsel.
In a bench trial, the all-important statement of decision fills the empyrean role of the jury verdict. If you did not outline your appellate issues in the statement of decision, then I have bad news for you, because: yes, you did -- only, you may have outlined them very poorly. A nice recent blog post on this technical and tripwire-rich exercise discusses this:
https://lnkd.in/gi7FRU9
The statement of decision is a key time to bring in appellate counsel. The crucible of trial often reveals new issues or subtleties in the case that may be raised on appeal. But if they are not raised in a statement of decision... forget about it!
An appellate trap for the unwary -- Designating the Record
If you designate less than all of the transcripts from trial, you have to specify the issues you will raise on appeal. This is not easy, because the designation of record occurs very early in the appeal -- just 10 days after the appeal is filed! If have seen lawyers step in this trap before, but now the trap has teeth: The appellant's failure (after respondent's objection) "precludes him from raising ANY points on appeal"!
Obey 8.130(a)(2) or else...
Appellate Bonds
Here is a nice article on the kinds of bonds and stays available pending appeal. https://lnkd.in/gVW-7_7 Hot tips for appellants:
Appellate Bonds Without Collateral
If you represent clients on appeal, did you know you may be able to get an appellate bond without posting any collateral? I was pleasantly surprised when Arturo Ayala at CSBA helped our client obtain an appellate bond recently based solely on our client's financial position, without having to put up any assets.
It's these little details that can start to move the needle for your clients on appeal.
Law-and-motion in the time of Covid:
Should trial courts keep hearings on discovery motions & especially MSJs on calendar, for the good of fostering mediation & settlement? Good discussion on this Daily Journal podcast episode at about the 24 min. mark. https://lnkd.in/ggQ8Spa
This may be useful:
When “a local court [seeks to] advance[ ] the goals of efficiency and conservation of judicial resources by adopting procedures . . . deviat[ing] from those established by statute, [it] thereby impair[s] the countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding.” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1353.)
(But: the Cal. Supreme Court recently denied our petition for review of an order indefinitely deferring ruling on an MSJ.) Courts in the Time of Covid
Dispatches from some trial courts indicate that many departments may be too small to accommodate socially-distanced 12-person juries, and that parties may be asked to stipulate to 8-person juries, or else be transferred to a different department or courthouse. You will need to consider how this impacts your clients' ability to get a timely trial. But remember, Article I, Section 16 of the Cal. Constitution entitles litigants to a jury of 12:
“In civil causes the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.”
On Jury Waivers
When civil litigators finally get back to jury trials, expect a bevy of new local rules -- and even "local local" rules. But don't worry: missteps on such non-statutory rules cannot result in a jury waiver. Under Article I, section 16 of the California State Constitution, a jury trial can be waived only on grounds authorized by statute. Failing to comply with court or department rules may get you into hot water with the judge, including sanctions -- but striking a jury demand is per se reversible error.
Chen v. Lin, No. JAD19-10 (L.A. Super. App. Div. Nov. 14, 2019)
https://lnkd.in/gmet5FR
Eviction Moratorium to End Sept. 1
The Judicial Council recently voted to end the emergency rules halting evictions and foreclosures in California. Lawmakers had requested the Judicial Council extend the rules. But Chief Justice Cantil-Sakauye said -- absolutely rightly, IMO -- that it’s now up to the Legislature and Governor to act:
“The judicial branch cannot usurp the responsibility of the other two branches on a long-term basis to deal with the myriad impacts of the pandemic. The duty of the judicial branch is to resolve disputes under the law and not to legislate.” https://lnkd.in/gnM_FAq
Five months is more than enough time for lawmakers to act. https://lnkd.in/gzEMYPY
The Oxford Comma Is the Law of the Land
Among those who fail to respect the Oxford comma are lawmakers, sloppy thinkers and sloppy writers.
(Do you see what I did there? We Oxford comma advocates are a blast at parties!)
"A lawsuit over the absence of an Oxford comma was settled for $5 million"
https://qz.com/1204146/oxford-comma-court-case-maines-oakhurst-dairy-has-settled-with-its-drivers-for-5-million/
A cardinal rule of brief-writing: Know your audience ...and for petitions for review at the Cal. Supreme Court, that audience includes... law students.
https://lnkd.in/drPV_h6
When Specious Strategies Work...
Will this one?
Plaintiff judgment-creditor gets this devilishly devious idea when the corporation defendant appeals: Why not just get a receiver appointed, and suggest that the receiver simply abandon the appeal, as an asset of the receivership?
So plaintiff does, and receiver does.
Will it work? Stay tuned.
Supreme Court Limits Regulatory Penalties Against Nursing Facilities A divided Supreme Court in Jarman v. HCR ManorCare limits private remedies against skilled nursing facilities, wiping out almost all of the $95,500 in statutory damages — $250 for each of 382 regulatory violations — awarded by a jury.
Are judges making light of making law?
Some judges are making a habit of deploying light-hearted pop-culture references in judicial opinions. There is an interesting conversation about this in the Pro Say podcast (ep. 151) at the 33 min. mark. (https://lnkd.in/gj9tmbW)
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast.
This episode discusses cases and procedures in appealing preliminary injunctions.
Appellate Specialist Jeff Lewis' biography.
Appellate Specialist Tim Kowal's biography .
Cases mentioned in this episode
ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1
Abbott Laboratories v. The Superior Court (2018) 24 Cal.App.5th 1 (2018)
Amgen v. Health Care Services (2020) 47 Cal.App.5th 716
Ashburn v. AIG Fin'l Advisors, Inc. (2015) 234 Cal.App.4th 79
Bearden v. Ballad Health (2020)
DOE v. Regents of the University of California (2020) 51 Cal.App.5th 531
Fletcher v. Superior Court(2002) 100 Cal.App.4th 386
Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352
Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723
Ligon v. New York (2013) 925 F.Supp.2d 478
Luckett v. Panos (2008) 161 Cal.App.4th 77
Newsom v. Superior Court of Sutter County (July 10, 2020, No. C092070)
People v. HomeAdvisor (May 14, 2020 No. A154960)
People v. Tyson Theodore Mayfield (2020) 50 Cal.App.5th 1096
PV Little Italy v. MetroWork Condo Association (2012) 210 Cal.App.4th 132 (2012)
Welsch v. Goswick (1982) 130 Cal.App.3d 398
Yost v. Forestiere(Jun. 29, 2020 No. F078582)
Transcript
Tim Kowal : 0:01
Although the abuse of discretion standard of review is deferential, it is not sycophantic. Announcer : 0:08
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 : 0:22
Welcome, everyone. I'm Jeff Lewis. Tim Kowal : 0:24
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. Welcome to Episode Four of the California appellate law podcast. Today we'll be discussing appeals and stays of preliminary injunctions right to attach orders Another provisional remedies and orders subject to immediate appellate review. Jeff Lewis : 1:04
Now, this is an interesting topic for me, because sometimes when a party obtains an order at the outset of a case, like an injunction or receivership, that's a game changer for the rest of the lawsuit. The parties get a preliminary determination from the judge about the merits of the case. And the remedy that is imposed often ends the case pretty quickly in terms of initiating settlement conversations or one side or the other running out of money to litigate the case. But in some cases, the parties may immediately appeal, Tim Kowal : 1:33
They may immediately appeal and not only appeal, but in some cases, they can stay the effect of the order. A preliminary injunction is the example I bring up most often to remind practitioners they need to be appellate minded from the very beginning of the case. Too often appellate strategies only come onto the radar after appeal, but the powerful remedies of preliminary injunctions pre judgment liens and receiverships can end the case before it really begins in my own practice. I have felt both edges of the preliminary injunction sword, I obtained a preliminary injunction for a client once in a trade secrets dispute. And within days thereafter, I obtained a very favorable settlement for my client. And on the other hand, I've seen injunctions imposed against clients that have thrown the case into disarray. Jeff Lewis : 2:17
Yeah, me too. That is why it is so crucial to understand that these orders may be immediately challenged on appeal on the right to take up these interlocutory appeals and potentially stay there. In fact, it literally can mean the difference between winning and losing the case. Tim Kowal : 2:31
You know, just a few weeks ago, I was reading about the stop and frisk cases in New York City years ago. And it's a good example I thought of just how powerful preliminary injunctions can be. That litigation took place in 2013. And it involved two key cases. Floyd versus New York was abroad class action that made a prime aphasia challenge to all stop and frisk in New York City. It had been filed way back in 2008, but because of its broad scope, and the city appeal of the class cert order. No trial was in sight as of 2013, five years into the litigation. One of the narrower related cases was a case called Ligon versus New York. And the Ligon case challenged only the stops around certain private buildings in the Bronx. The Ligon plaintiffs sought a preliminary injunction. In that narrower case, the trial judge granted the injunction in what would prove a case ending 157 page decision that strongly condemned stop and frisk as unconstitutional. Jeff Lewis : 3:34
Yeah, I wonder how long the decision would have been if the more general case had been challenged? I assume the city could have sought a stay of the injunction pending appeal in the in the New York case. Tim Kowal : 3:47
Yes, it did, in fact, and the judge stayed the injunction in light of the appeal in the Floyd case. Unfortunately for the city, the optics were just too damning, and the city was forced to settle and end it stop and frisk program. Without awaiting the decision on the broader class action. Jeff Lewis : 4:03
Yeah, that looks like it was a shrewd strategy. It appears the plaintiffs had an idea the trial judge was inclined to rule in their favor. But the class action was mired in procedural delays. And a preliminary injunction in the narrower case allowed the plaintiffs to give the judge a bullhorn to explain the merits of plaintiff's case to the public. Even while a trial on the merits was still years away. Obviously, that can have a major impact on a case. Tim Kowal : 4:27
So in private litigation, the game changer is usually the injunction itself. But in the stop and frisk cases, it was the forceful preview of the trial court's conclusion on the merits that forced the defendant city to capitulate. And perhaps that's what that's what the Orange County District Attorney Todd Spitzer is up to in his office's litigation against several pharmaceutical companies. The pharmaceutical companies have delayed the release of their generic version of the popular cholesterol cholesterol drug Niaspan. The DEA allege that this violates the state's unfair competition law, and the DEA sought an injunction against further violation. Jeff Lewis : 5:08
I understand that the pharma companies prevailed on the writ petition in the fourth district court of appeal. The court's order limited the jurisdiction of the suit to Orange County, Tim Kowal : 5:17
right. But in the California Supreme Court's June decision in the case titled Abbott Laboratories versus the Superior Court, the Supreme Court reversed the fourth district holding that the district attorney of any of California's 58 counties may sue for statewide enforcement under the unfair competition law. So suddenly, corporations may now find themselves up against 58 new mini attorneys general Jeff Lewis : 5:43
Wow, that's a that's an interesting result. I could see danger of conflicting rulings and races to the courthouse without result. I'm kind of surprised by that. But the unfair competition law does provide for injunctive relief, so I would not be surprised to see a preliminary injunction motion to be on the horizon in these cases. Tim Kowal : 6:03
And if the trial court grants a preliminary injunction in strong terms, as did the New York, the district court in New York and the stop and frisk cases, watch for the pharmaceutical companies to capitulate, even if the order could be stayed on appeal. But aside from such high profile public interest cases like this, the right to appeal and the right in certain cases to stay, a preliminary injunction can change the shape of a case. Jeff Lewis : 6:29
Now, when seeking an injunction, I always remind trial lawyers to pay attention to the fundamentals. There's an interesting preliminary injunction case in California last month involving a lawsuit brought by two California State Assembly Members against California Governor Newsom the case is Newsom v Superior Court will include a link in the show notes. The lawsuit was filed to block an executive order by Newsom allowing voters to vote by mail and the next election. The day after the lawsuit was filed, the plaintiff sought an injunction from the Superior Court to block enforcement of the order. The problem for the assembly members was that the governor had not been served, and lawyers for the Department of Justice were given very short notice by email the hearing on the injunction. The governor and his attorneys did not appear at the hearing on the injunction, and the court issued injunctive relief. The governor sought review by way of a read, although they could have sought review by an appeal and the Court of Appeal reversed. Tim Kowal : 7:23
So this was what we sometimes call a true ex parte hearing. It sounds like where the moving party appears without any notice to the other side, Jeff Lewis : 7:31
right a true ex parte but not complying with the strict requirements for true ex parte days. Incidentally, Michael Shipley has a great blog post on the history of the meaning of ex parte in California Civil Procedure, which we'll post in the show notes suffice it to say the state assembly members who are plaintiffs in this case did not seek proper ex parte relief. The court held that having not been properly notified of the ex parte hearing, the governor did not appear in the respondeat Superior Court. Nevertheless, without any evidence that would support court the immediate need to act at that time, without consideration of the governor's position. The superior court simply signed the proposed order as presented by the real parties of interest. The Newsome case provides a good roadmap for the requirements of going in ex parte to obtain an injunction. Tim Kowal : 8:16
When I read this decision, I was curious to find out what standard of review the third district use to vacate the injunction. Unfortunately, there was no mention of standard of review. standard of review can be a bit tricky in reviewing injunctions. injunctions are commonly said to be reviewed for abuse of discretion. But that's not always the case. Is it? Jeff? Jeff Lewis : 8:36
That's right. Preliminary injunctions are in many ways, like many trials. Sometimes there's findings of fact that are subject to substantial evidence review. Sometimes there are conclusions drawn from undisputed facts which are subject to de novo review, and sometimes they're evidentiary rulings that are reviewed for abuse of discretion. And just like judgments and junction orders involve findings of fact balancing of equities and questions of law So all three standards of review may apply to an injunction order, depending on which aspects of the decision you're challenging. That's why it's really critical to have an appellate lawyer who can help a trial lawyer select an appropriate issue to raise on appeal. Tim Kowal : 9:13
Right. I agree it underscores the need for careful pre motion and pre hearing planning of evidence and the strategic selection of issues for appeal. Jeff Lewis : 9:21
In fact, there's a lot of nuts and bolts about preliminary injunctions, and I like to go over with trial lawyers and it could be easy to miss. Let's cover some of those rules. First, injunctions are immediately appealable pursuant to code of civil procedure section 904. point one that includes orders granting an injunction orders denying an injunction orders dissolving an injunction and orders refusing to dissolve an injunction. That is important because that means if an injunction is entered against your client, you may bring subsequent motions, raising new facts to either dissolve or limit the injunction. And even if that motion is denied, that presents a new opportunity to present your case to the Court of Appeal Tim Kowal : 10:01
and relatedly an order enforcing an injunction is also appealable. That's the Welsh versus Goswick case. A 1982, Fourth District decision and an order modifying an existing injunction also appears to be appealable as well, that's Global Protein Products, Inc. vs. Li 2019. case out of the sixth district. Jeff Lewis : 10:22
A second important tip about injunctions, and it's often overlooked is that an order does not have to say it's an injunction to be appealable as an injunction. cases have repeatedly observed that whether an order is in fact an injunction does not depend on its title, or the form of the order, but on the substance and effect of the adjudication. Many of these cases discussing this point are collected in a case called Luckett v Panos is a fourth district opinion from 2008. Tim Kowal : 10:48
A good example of that can be found in the 2012 fourth district decision in PV Little Italy versus MetroWork Condo Association, a case involving a Sheraton Or dispute. In that case, the trial court issued an order that a prior shareholder election was void and ordered a new shareholder election to take place. The unhappy shareholder appealed. And on appeal, the prevailing shareholder argued that the order was not appealable as an injunction because the order never mentioned the word injunction. The court rejected that argument as disingenuous and reiterated that it's the substance not the form that determines whether the order is an injunction. Jeff Lewis : 11:31
A third often missed rule is that if an injunction fails the bond requirement the injunction is invalid. That requirement is codified at code of civil procedure section five to nine. And in the federal courts, the rule is federal rule of civil procedure 65. Tim Kowal : 11:46
I confess that for a long time, I did not realize how emphatic this rule was. But in fact, if a bond is not set by the order, the order is void. The key case on this is Abba Rubber Company versus Seaquist, a 1991 case out of the fourth district, it is reversible error that case held to issue an injunction without ordering that a bond be posted. I went back and looked at a preliminary injunction order that I had obtained early in my practice. And I was a little alarmed to find that in the blank space I had provided to the court in my proposed order the judge had written in zero. Thankfully, the defendant did not realize that this had rendered the order void, but I'm now more acutely aware that a judge must not fail to set a bond amount. In fact, the injunction we obtained in that case had the practical effect of completely shutting down the opposing defendants business. The purpose of the bond requirement is to mitigate the potentially devastating impact of injunctions by requiring that the plaintiff indemnify the defendant for any losses injunction order would impose. So had the defendant in that case raise the bond issue. My client would have been required to post possibly an onerous bond that could well have proved prohibitive. Jeff Lewis : 13:00
I guess the opposing injunction should then give thought to presenting detailed evidence and argument on what amount of the bond should be and should consider requesting a hearing and an opportunity to present evidence on the amount of the bond and also take care of the time we object to an insufficient bond. California law requires an adjoining party raise any objections to a bond, including the insufficiency of them out within 10 days of service of the bond that's set forth and code of civil procedure section 995 point 930. After 10 days, a party challenging a bond must show good cause for not having made a timely challenge to the bond. Tim Kowal : 13:37
I think that requesting an evidentiary hearing is an interesting idea. On the one hand, there's no right to an evidentiary hearing on a preliminary injunction motion. But if you are representing the defendant in opposition, I would consider asking for an evidentiary hearing to determine the proper bond amount. If the court refuses and sets an inadequate bond as a result that could would be a good issue to raise on appeal. Jeff Lewis : 14:02
Yeah, I agree, although the remedy the Court of Appeal might give you in that circumstance is a hearing only on that issue and the bond or excuse me, the injunction might still be valid pending appeal. But it's interesting tactic. The fourth appellate tip that we wanted to share today with Trial Lawyers for preliminary injunctions is that a preliminary injunction that is mandatory in nature is automatically stayed on appeal. That means if the injunction requires the enjoying party to take affirmative actions, it will be stayed on appeal. But determining whether an injunction is actually prohibitory or mandatory can be tricky. And the question is not often answered merely by the language used in the order. Tim Kowal : 14:42
That's right. Again, the nature of the order cannot be determined by mere labels. an instructive case on this is Hayworth versus city of Oakland. That's a 1982 case out of the first district, some of the touchstones in determining whether an injunction is prohibitive or mandatory or whether it requires a formative action, whether it changes the status quo or the relative position or rights of the parties, in light of the stay associated with mandatory injunctions. And in light of the bond requirement, a moving party should take special care to be very specific and limited when crafting a proposed injunction order. That's because an overbroad injunction exposes the order to many vulnerabilities on appeal. The overbreadth have a preliminary injunction might render the bond inadequate, and the overbreadth might render the injunction mandatory in nature, making it subject to an automatic stay on appeal, and the order might be challenged for bigness. Good point, Jeff Lewis : 15:38
the fifth appellate tip we want to share today regarding preliminary injunctions is to be attentive to mootness issues. If the order requires the enjoined party to take action before the Court of Appeal has a chance to issue its opinion. There's little The Court of Appeal can do about it. In that case, you might want to consider taking a rip because if you take the slower approach of a normal direct appeal, the other side might file a motion to dismiss on mootness grounds. Tim Kowal : 16:04
Absolutely. That's always an important consideration to take up when filing an appeal of even an appealable order might also be a good candidate for taking a read up as well. Let's discuss a couple of recent cases and see how our observations Hold up. The first case is the June decision out of the first district in people versus Home Advisor. Home Advisor is a company that provides various Home Improvement services through its network of service companies. In that case, the San Francisco district attorney sued home advisor for false advertising. The gist of the suit appears to be that home advisor had told customers that its professionals were all background checked, when in fact home advisor was only checking the managers of the companies that partnered with not the service professionals themselves. After five hearings, and after carefully considering the different problems of home advisors, various advertisements, the trial court agreed and granted the injunction. injunction allowed home advisor to still run certain ads, but ordered home advisor to stop running other ads unless accompanied by a disclaimer that the court had adopted from the district attorney. Home advisor appealed and the first district affirmed. The court rejected home advisors argument that the injunction was overbroad because the court had carefully enumerated 24 examples of prohibited ads and 14 examples of permissible ads. The end result the court concluded was a nuanced order that is not overbroad. What I found interesting is that homeadvisor also challenged that the disclaimers were compelled speech. Apparently the trial court had ordered certain ads to be broadcast with disclaimers until January 2019. And home advisor argued this amounted to compelled speech. But in the June 2020 decision, the Court of Appeal held that this argument was moved because obviously January 2019, had come and gone so I wondered Jeff, could homeadvisor have taken the position that the disclaimers made the injunction mandatory in nature and thus stayed pending the appeal? Jeff Lewis : 18:09
Yeah, I agree with that approach completely. Those disclaimers are a classic example of a court compelling action that ought to be stayed pending appeal automatically. And I'm curious why home advisor did not seek immediate review via read the mootness issue also suggests that home advisor really should have considered filing a writ petition to avoid the mootness argument. So the next case we wanted to talk about is Amgen versus healthcare services in April decision out of the second district division one. Amgen is a pharmaceutical company and it submitted a price increase notice to about 170 registered purchasers of Amgen products, and one of those purchasers is California correctional healthcare services. Price Increase notices are given 60 days before the increases are made public. Now, Reuters news made a request under the California Public Records Act. Request for the notices, and Amgen responded by filing a petition for mandamus to block production of the notices. This is known as a reverse Supra action. Amgen invoked the trade secrets privilege of evidence Code Section 1060. Via government code section 6254. And Amgen also moved for a preliminary injunction. The trial court granted the injunction the court found that Amgen had showed the increase notice met the definition of a trade secret, despite the fact that the notice was sent to more than 170 registered purchasers and an unknown number of customers, a pharmacy benefit managers, the California correctional health care services appealed, and while the appeal was pending, the trial court sustained cc hc S is demurred Amgen mandamus petition with leave to a med. But instead of amending Amgen simply dismissed its action and on appeal of the injunction, Amgen argued its dismissal of the action mooted the appeal The second district reached the merits of the appeal. It held that even though the case was arguably moot, because there will be future price increases, and a pharmaceutical company could always obtain an injunction for the 60 day notice period and then dismiss the case after the prices are publicized, the pharmaceutical companies could evade judicial review of this issue forever. So the court exercised its discretion to hear this. the merits of this case, using the line of cases used to hear cases that are likely to recur, yet evade review and the same doctrine. This is the same doctrine that have allowed courts to rule the reproduction abortion cases, despite the fact that most lawsuits take longer than nine months, the same nine month period for a baby to come to term. The court also held that allergens price information was not a trade secret after having disseminated it to over 170 registered purchasers and supply no evidence about how its confidentiality could possibly be maintained in light of that distribution. The Court of Appeal held that in light of this absence of evidence, the trial court abused its discretion in finding the balance of harms favorite Amgen. Tim, I agree with both aspects of the Amgen decision on the question of mootness. And the question of confidentiality. What did you think about the outcome of this case? Tim Kowal : 21:17
I agree with you and I agree with the court as well. I think it's hard to argue confidentiality still obtained given the lack of effort to maintain it. And I also thought it was important to decide the issue given the short timeframe meant that it would always evade review in the future. The next recent case is the June decision in doe versus Regents of the University of California, that cases out of the second district division six. Doe was a freshman at UC Santa Barbara, who was placed on interim suspension pending investigation into allegations of dating relationship violence. But as too often happens in these cases, the university's investigation became interminable. Dough last first one academic quarter and then another doe sued in the Santa Barbara Superior Court and sought a preliminary injunction to lift his suspension. The Trial Court refused, reasoning that doe had failed to exhaust his administrative remedies. So don't took up a writ petition. The Court of Appeal issued a suggestive Palma notice. The court indicated that doe had been prevented from exhausting his administrative remedies due to the school's delay in investigation, which threatened to keep doe in suspension his entire freshman year. A suggested Palma notice as a procedure by which the Court of Appeal more or less hints to the trial court what it's thinking of doing and to give the trial court an opportunity to correct course on its own before the Court of Appeal issues a peremptory writ suggested pollmann notices are rare, but the possibility of a Palma notice suggests the importance of filing full scale preliminary opposition's to repetition so that the Court of Appeal can have your opposition in mind. Before it decides to issue a suggestive PAMA notice the trial court took the second district's hint and held a rehearing on the injunction. The university finally presented two emails that apparently it had it had been holding back that supported its suspension order. They were both hearsay and doe vigorously disputed their credibility due to the paucity of the university's evidence and that there was still no end in sight to its investigation. The trial court granted the preliminary injunction, doe was ultimately exonerated. The trial court then dismissed the action as moot. Doe moved for his fees under code of civil procedure 1021 dot five urging that the litigation had conferred a significant public benefit. The trial court denied that motion and doe appealed. The dismissal was affirmed against him but the Court reversed the order denying his fees, holding that those litigation had conferred a public benefit, in light of the university's Failure to follow its own policies. Finding that obtaining an injunction pending a title nine investigation confirmed a significant public benefit also tends to confirm the importance of a preliminary injunction and of RIT procedures. They represent a backstop to the star chamber proceedings that often occur in university and agency quasi adjudications. Jeff Lewis : 24:19
Yeah, good point. Now let's discuss next a special type of injunction known as a civil harassment restraining order or chro. This law was enacted to respond to stalkers. And these are very special proceedings. It's not typical where you file a complaint and the answer you do discovery, it's just a one off you file a restraining order petition and perhaps the other side can file a response seeking their own petition. parties can get an injunction very easily. And these injunctions are quite serious. The nonprofit the non moving party can be forced to surrender his guns. The non moving party can be entered into a police database, at any violation of the injunction by The non moving party can result in a criminal prosecution. So the stakes are very high. And you get the chro for several years and they can be renewed. The chro can issue on a showing of violence, which I think is appropriate or a threat of violence, which I also think is appropriate. But chro can also be issued on a showing of harassment. And it's this area that is the most vague and most concerning from a First Amendment point of view. Harassment can mean according to the statute, any course of conduct that is intentional, directed at a specific person harasses the person and serves no legitimate purpose of handle these appeals. Normally, they are very difficult to win. It's very hard to overturn a trial court's finding a fact usually these orders are issued based on credibility findings subject to substantial evidence review. Once in a while, you'll get a clean legal issue to argue on appeal. But most of the time I turned down clients asking to appeal these cases, because they are so difficult. It's much easier To go back in after some changed facts or additional facts to try to dissolve or modify the order. Tim Kowal : 26:06
Well, on the subject of civil harassment restraining orders, let's discuss the June decision the unpublished decision in Yost versus Forestiere out of the fifth district in Fresno. In Yost, a mother obtained a restraining order against her daughter's grandfather. Apparently the grandparents had once threatened to abduct the girl. But sometime later, the custody dispute between the girl's parents was resolved with the grandfather son obtaining 50% custody. This tended to make the restraining order rather pointless. So the grandfather moved to dissolve it. But the trial court denied the motion. Jeff Lewis : 26:42
And did the trial court explained how the restraining order was going to be effective now that the grandfather could just get access to his son. Tim Kowal : 26:49
The problem was the trial court didn't think that was the question under code of civil procedure section 533. In order modifying or dissolving a restraining order, maybe Based on a change in the facts upon which the order had been based, but the custody dispute was not one of the facts that the restraining order had been based on. So the trial court found that the resolution of that dispute was not relevant under the statute. And that was why the fifth district reversed. The Court of Appeal agreed with the appellant that the trial court had taken too narrow of view of its own discretion. And the Court of Appeal held that the grounds under Section 533 are not exhaustive, and the trial court may consider other factual grounds. And because the trial court did not consider the other grounds presented, this amounted to an abuse of discretion. Jeff Lewis : 27:39
There are actually some cases that hold that the failure to exercise discretion is itself an abuse of discretion. There's the Fletcher v. Superior Court case involving pitchess motions and discovery as to police officers, personnel records, and Ashburn versus AIG. were no no cherry hearing was held on a petition to compel arbitration Tim Kowal : 28:00
Right and there was a recent fourth district opinion written by Justice Bedworth where he said quote, although the abuse of discretion standard of review is deferential, it is not sycophantic. That's the people vs. Tyson Theodore Mayfield case. Okay, let's move to the topic of receiverships. This is another powerful remedy that may be available early in the litigation, such as by a partner with an interest in partnership property, or a vendor to vacate a fraudulent purchase or a secured lender for the foreclosure of a deed of trust. I haven't dealt with many receiverships in my practice of you, Jeff. Jeff Lewis : 28:35
Yeah, I just had one last week. We opposed a motion for receivership successfully. Part of our success is the courts understanding these are drastic remedies. You're turning over ownership and operation of a company to a third party to a stranger. So the law tends to favor defendants in the here unless the facts are really egregious. What is important to note about receivership orders is they are immediately appealable. Although one might consider a writ, if the keys to a company are being handed over to a complete stranger, Tim Kowal : 29:12
Right, and bear in mind that the appeal does not automatically stay a receivership. If you do need to stay at receivership consult code of civil procedure section 917 point five. That Section requires an order of the trial court and the posting of a bond. If the appeal is affirmed, the appellant will be liable for any damage resulting from the stay. Another preliminary remedy is a right to attach order. A right to attach order and receivership are pretty much the exclusive forms of obtaining a pre judgment lien against the defended. Orders granting a right to attach order are immediately appealable. You can also get a stay of an attachment by posting a bond in the amount specified in the order. That's code of civil procedure section. 917 point 65 While this comes at a cost, it does not require leave of the court. If you file the appeal and a bond sufficient under the statute, the stay is automatic. Jeff Lewis : 30:07
So we've been talking today about a lot of different types of interlocutory appeals involving preliminary injunctions. Another interesting area for interlocutory appeals concerns the disposition of whether a judge is disqualified from hearing a matter based on a peremptory challenge or other ground raised by a party. And this type of issue cannot be resolved by an appeal, either immediately or at the end of the case. The sole remedy for review regarding judges disqualification in a matter is to file a statutory petition for writ of mandate within 10 days of the order. My firm had some luck last month filing a petition for writ of mandate on the handling of a disqualification issue. We had partnered with a trial lawyer had a criminal case where the judge presiding over the case received a challenge alleging facts suggesting that the judge was biased and should recuse himself, the judge rather than handing off the challenge to the master calendar for him. Handling reviewed the challenge himself and issued a lengthy response in writing as to why he did not need to recuse himself. We saw to read and got division five in the second district to issue a stay order and send an OSC as to why rent relief should not issue. Ultimately the trial court back down, assign the matter to another judge for ruling on the disqualification motion, and the matter is now being handled by a different judge. Tim Kowal : 31:23
Congratulations. That's a great result. Thanks. All right. Well, let's move on to some news and other appellate tidbits for this week. First, a Sixth Circuit opinion reminds practitioners of the importance of civility that case Bearden versus ballad health, alleged violation of the Clayton act, accusing a healthcare company of improperly merging with valid health. plaintiff's attorney alleged that the directors of the health care company had surrendered to ballad much in the manner martial patane surrendered France to Adolf Hitler. There are various other accusations but they struck me as more bad Creative Writing than on civil but nonetheless, this is Sick the sixth circuit's advice is apt. It said, there are good reasons not to disparage your opponent, especially in court filings. The reasons include civility, the near certainty that overstatement will only push the reader away, and that even where the record supports an extreme modifier, the better practice is usually to lay out the facts and let the court reach its own conclusions. The court goes on to say the most important reason here is that councils colorful insults do nothing to show that his clients have standing to bring this lawsuit and understanding question the court says plaintiff has alleged only insults not injury. Jeff Lewis : 32:38
Early in my career. I had a mentor by the name of Greg Koffman, a fantastic lawyer and he he often told me and taught me attack arguments, not people and I tried to do that in my practice. Let me share two other tidbits of interest to our listeners. First, there's a nice bit of free legal research software I'm playing with from the makers of case text now they're not a sponsor of this program just playing around with it. It's called parallel search. If you Google parallel search by case text, you can find it I'll leave a link in the show notes. It's a simple web page, like a Google form, where you don't have to install software. There's no logins or credits, and you enter a simple English sentence and you get fast, good results about cases without the headache and delay of logging into Westlaw or Lexus. Tim Kowal : 33:24
After you sent me that link. Jeff, I tried it a couple times on a quick a couple of quick and dirty searches and the results that provided were great. Jeff Lewis : 33:32
Yeah, it's it's it's a game changer. I it's free for now. I hope it'll start charging soon. This second bit of news I want to share as the US District Court for the central district that's federal court here in the middle of California has answer has announced it is suspending civil and criminal jury trials for the time being due to COVID. With no end date in mind, it just said jury trials are suspended which I found pretty astonishing and will obviously impact appellate work here in Southern California. Tim Kowal : 34:02
I wonder if that might be preferable to the practice that I've been hearing, which is that trial judges are setting trial dates with no intention of actually honoring them. Yeah, Jeff Lewis : 34:12
yeah. I suppose it's more honest. But it's concerning, especially on the criminal side. Yes. All right. Well, that wraps up this episode. Tim Kowal : 34:19
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, we'll cover more appellate decisions and appellate tips. All Jeff Lewis : 34:34
right. Thanks, Tim. See you next time. Announcer : 34:37
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 ca o. podcast calm That's ca l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again.
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. To listen or subscribe, click here.
This episode of California Appellate Law Podcast discusses cases, procedure and common pitfalls in appeals involving summary judgments.
Appellate Specialist Jeff Lewis' biography and background.
Appellate Specialist Tim Kowal's biography and background.
Cases mentioned in this episode
Ung v. Koehler (2015) 135 Cal.App.4th 186
Mosley v. Pacific Specialty Ins. Co. (2020) 49 Cal.App.5th 417
Sosa v. CashCall, Inc. (2020) 49 Cal.App.5th 42
Union Bank v. Superior Court (1995) 31 Cal.App.4th 573
Bayramoglu v. Nationstar Mortgage LLC (July 1, 2020, No. C084299)
Ayon v. Esquire Deposition Solutions, LLC (2018) 27 Cal.App.5th 487
D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1
McAlpine v. Norman (June 22, 2020, No. C088327)
Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119
Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395
Levin v. Ligon (2006) 140 Cal.App.4th 1456
Rush v. White Corp. (2017) 13 Cal.App.5th 1086
Lourick v. Hunt & Henriques, (June 26, 2020 No. C086203 [unpublished]
Pacifica First National, Inc. v. Abekasis (June 15, 2020, No. B298292)
Other Resources Mentioned in the Episode
111 N. Hill Street Blog of Civil Procedure
Latest LA Superior Court press release about COVID-19 and trials
California State Bar announcement regarding Fall 2020 Bar Exam
Transcript:
Tim Kowal : 0:04
reading this case I was reminded of Esposito an old Woody Allen movie bananas. He declared that all children under 16 years old, are now 16 years old. Unknown Speaker : 0:14
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 : 0:29
Welcome, everyone. I'm Jeff Lewis. Tim Kowal : 0:30
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 before, during and after trial 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 the third episode of The California appellate law podcast. This time we'll be focusing on summary judgment motions. MSJ's are pretty bread and butter as far as trial practice goes. So I suspect some listeners might be doubtful we can tell them much that they don't already know. What do you think, Jeff? Jeff Lewis : 1:18
Well, I would disagree. In fact, you sent me some of over the some of the cases that we're gonna be discussing today, and I learned some things I didn't know and I've been practicing over 20 years, I would say, after anti slap motion. for summary judgment motions are the procedure that contain the most traps for the unwary. Let's start with some of the basics about summary judgment procedure as to appeals. Normally an order granting summary judgment or adjudication is not directly appealable. Instead, if somebody wants to appeal they have to appeal the judgment following the granting of such an order. Tim Kowal : 1:51
Yes, and that's one of those rules that tells a lie, because sometimes an appellate court will forgive a party that appeals a summary judgment or rather than waiting for the judgment itself, and then we'll just deem that order appealable. That's what happened in the 2015 case of ung vs. Kohler out of the first district division one. In that case, a secured lender recorded a deed of trust against the defaulted borrowers real property. And the borrower believed that the lender should not be able to enforce the loan because that loan had been in default for about a decade. And that's it should have been time barred. So, the borrower filed suit to enjoin the lender from foreclosing and the plaintiff borrower filed an mSj. And the court granted it. But before the trial judge could enter judgment, the defendant lender rushed ahead and appealed. So you can already see the problem here because an order granting summary judgment is not appealable. You're supposed to wait for the judgment. Jeff Lewis : 2:48
Right. At that point, I'd file a motion to dismiss the appeal for lacking jurisdiction. Tim Kowal : 2:52
Well, what happened here is in a footnote, the court acknowledged that the order was of course, obviously not appealable And what are you thinking appealing the order granting summary judgment instead of the actual judgment, but discreetly handling the matter tucked away in a footnote, the first district side of the case that had deemed an order granting summary judgment to be tada a judgment. And it cited another case that simply deemed an order granting summary judgment to be appealable, which in my eyes does a little more violence to the rules of appealability. But there you go. The parties apparently agreed that the court could review the order. So the court just deem the non appealable order here to be appealable. Jeff Lewis : 3:33
I wonder, Tim, if the parties had not stipulated, and the respondent had done what I suggested, which is, you know, make a motion to dismiss the appeal for lack of jurisdiction. I wonder if the court would have granted the motion for lack of appellate jurisdiction? Tim Kowal : 3:48
You know, I don't think so. other cases have been pretty emphatic that parties can't stipulate to manufacturer, appellate jurisdiction. So I really don't think the parties agreement amounted to a hill of beans here. The court had its appealability analysis socked away in an inconspicuous footnote. And then it just proceeded to reverse. The court not wanted to reverse you can bet the appeal simply would have been dismissed on non appealable non appealability grounds. But the court obviously did want to reverse. And when a Court of Appeal wants to reverse an order, you can expect that the order will be deemed appealable. Or else the appeal will just be deemed a repetition. reading this case, I was reminded of Esposito in the old Woody Allen movie bananas after Esposito made himself the new president of San Marcos and said, he declared that all children under 16 years old are now 16 years old. Jeff Lewis : 4:41
Alright, so the next summary judgment case we wanted to cover today was Mosley versus Pacific specialty insurance company 20. It's a 2020 decision. And but before we jump into the facts of Mosley, I want to cover the basics of burden shifting in a summary judgment case, and a summary judgment, motion the movie Part of normally the defendant has an initial burden to prove to the trial court that the case has no merit. If the moving party fails to meet that burden, then the motion is supposed to be denied without regard to what evidence or arguments are raised by the opposing party, usually the plaintiff, if the burden is met by the defendant, then the burden of proof shifts to the plaintiff to prove a tribal issue of fact exists, that warrants going to trial. Now getting back to the Mosley case, the majority reversed to summary judgment below. Based on the theory that had not been argued at the trial level. There was a dissenting opinion in this case, pointing out that reversing on grounds not raised below creates a new rule of appellate procedure. I don't know that I agree with the dissent here. Courts of Appeal frequently have the option to look at questions of law for the first time on appeal. And I tend to side with the majority on this one, the majority and mostly held that the defendant simply did not meet its initial burden. What about you, Tim? Tim Kowal : 6:00
You know, I think I actually do agree with Justice minetta as his dissent here, maybe not for the reasons that are articulated in the dissent, though, I do agree with you that legal conclusions usually may be affirmed on any available grounds. And the Court of Appeal is not limited to the grounds cited by the trial court in most cases. But summary judgments are different because they have a special procedure with special requirements. One of those special procedures is that the party opposing the summary judgment motion has the right under Section 437 c subdivision age, to seek discovery, if that discovery is denied, that may pose an independent grounds for reversal. So when the court reached for a different legal theory to affirm the summary judgment here, I think the court effectively excised that important discovery safeguard from the statute. That is not something raised in the dissent, but it is an argument that I would have made Jeff Lewis : 6:57
well, let me push back on you for a minute on that one. put you on the spot. But let me just ask when you are making a motion to ask for discovery in the face of summary judgment motion, are you asking for discovery to help you shift your burden as a plaintiff and avoid summary judgment? Are you looking for discovery to avoid the plaintiffs the defendants ability to meet their initial burden? Because if it's the latter, then maybe that's not a concern in terms of the result that happened here. Mostly. Tim Kowal : 7:25
If the burden gets shifted back onto you, and the Court of Appeal decides that you didn't meet your burden, you would want to be able to argue that you availed yourself of the or attempted to avail yourself of the those discovery rights under subdivision h by seeking discovery as to those issues so that the court couldn't fault you for not satisfying your burden if and when it did get shifted to you. Yeah. So I think that's a that's a good reason to always consider filing a motion for discovery. Under subdivision, h when opposing a summary judgment motion. In that motion, I would specifically enumerate the legal theories that were advanced in the motion. And I would state that, that I specifically intend to conduct discovery on them so that if ever any new theories are advanced, I would lay on the indignation good and thick, emphasizing all the discovery that I tried to do based on the stated legal theories, so that I couldn't be faulted for not having opposed secret undisclosed legal theories. Jeff Lewis : 8:25
You know, you make a good point, maybe even going so far as to attach proposed discovery that you would, would serve if the motion were granted. Tim Kowal : 8:35
That's what I would do. Yeah. And I think we find a similar lesson about discovery and MSJs and our next case, which is a published 2020 decision, Sosa versus cash call. In a split decision. The fourth district Division Three Court reversed a summary judgment on the grounds that plaintiff had been denied discovery. What is noteworthy in this case is that the majority of voids The question of standard of review. As we know trial court orders relating to discovery are normally revert reviewed for abuse of discretion. But the majority here simply never mentions what the standard of review is. Instead, the majority appears to review the discovery issue under a de novo lens indicating the trial court had erred in its discovery ruling, not abused its discretion but erred. In his dissent. Justice Aronson says that at worst, he thought the trial court's ruling was a close call, but certainly not an abuse of discretion. So I think the result in the Sosa versus cashcall case suggests this strategy. If you've lost a motion for summary judgment, because you were denied discovery of relevant evidence, frame the issue as a violation of 437 c subdivision C. That subdivision requires the trial court to consider, quote, all inferences reasonably deducible from the evidence and quote, and it also requires that the court Must, quote, resolve doubts about the propriety of granting the motion in favor of the party opposing it. And quote, The Sosa court held that under these standards, the trial court's order denying discovery amounted to legal error. So again, if there is discovery you're having trouble getting consider seeking it in connection with the opposition to an mSj. The statutory procedures under 437 C, appear to entitle the party seeking discovery to a more favorable standard of review on appeal. Jeff Lewis : 10:30
Yeah, that's great advice. I think I'm going to start incorporating that into my strategy going forward. There's no doubt that discovery can make or break a summary judgment motion back in 1995. Division five of the second district issued its decision in Union Bank versus Superior Court, holding that a defendant in moving for summary judgment may rely on a plaintiff's factually devoid discovery responses to meet the defendants initial burden of demonstrating a cause of action has no merit. For example, when a party responds and discovery that the case was just filed or discoveries continuing, but no real facts are disclosed, a defendant may attach such discovery responses to the moving papers and meet their initial burden for summary judgment. Let me ask you a question, Tim. What would you think would happen when a defendant serves interrogatory ease and the plaintiff instead of answering those interrogatory points to documents that have been produced in the litigation? Is that a factually devoid discovery response for purposes of Union Bank? Tim Kowal : 11:35
It sounds like you're talking about the responding party's right to respond to an interrogatory by identifying documents from which the answer would be derived. No, that would not be considered a factually devoid response that could support the moving party's burden on summary judgment. And that precise situation was brought up recently in I'm going to I'm going to try real hard with this name. By mcglue versus nation's star mortgage LLC. That's a third district decision that held that litigants are entitled to invoke that discovery procedure that we talked about under code of civil procedure 2030 to 30, by pointing to documents in lieu of responding. Jeff Lewis : 12:19
You know, I have to say under the facts of that case, I think that case was rightly decided, but I could see this being abused, where you have a large deep pocket party on one side that buries the other side, thousands and thousands of documents. It doesn't precisely point to a page or a discrete number of pages and just says, hey, go look at the documents. I could see a good faith argument being raised that those are factually devoid discovery responses. Tim Kowal : 12:47
I think that's a fair point. Now, let me move on to what what is my favorite recent summary judgment case? This is the 2018 case of Ayaan versus Esquire deposition solutions. It's another case out of the fourth third. And it's also another case involving summary judgments and burden shifting. ayyan is a personal injury plaintiff in that case who was in a car crash with the deposition scheduling manager for Esquire, at the time of that accident, the scheduling manager had been on the phone with an Esquire court reporter. So that is the plaintiff's hook for vicarious liability, obviously, but Haha, not so fast as Esquire, at her deposition, that scheduling manager had testified that she and the court reporter were close friends, they talked on the phone every week, and that the phone call during the accident had actually nothing to do with esquires business. Esquire uses that deposition transcript testimony to file an mSj, arguing that there could be no vicarious liability in the trial court granted summary judgment on appeal. Plaintiff argued that the schedulers phone records showed no calls with the court reporter in the past six months, so plaintiff argues But this created a tribal issue over the schedulers deposition testimony about whether the phone call during the accident had been personal or whether it was work related so as to establish or tend to create a tribal issue concerning vicarious liability. But the Court of Appeal rejected plaintiff's argument and affirm the summary judgment. The courts reasoning was that once a moving defendant meets its burden on a motion for summary judgment, the opposing party cannot rely on mere attacks on credibility. The court noted that plaintiff had not supplied any other evidence to support its respondeat superior theory and poking holes in a defendant's evidence tending to disprove plaintiff's theory will not be regarded as evidence in favor of that theory. As attorney and blogger Michael Shipley, put it in his 111 North Hill Street blog. I don't believe you is not evidence. Jeff Lewis : 14:56
You know, there's a simple rule that summary judgment cannot be avoided. merely by submitting a declaration from a witness that contradicts the witness's previous testimony. It Dimmick Joe versus Board of Medical Examiners from 1974. But for that rule to apply has to really contradict that can't be ambiguities from which inferences of inconsistency could be drawn. And that comes from another case surely the familiar incorporation from 2017. One more burden shifting case is McAlpine versus Norman from 2020. This is a medical malpractice case where a doctor moved for summary judgment in a case brought by a patient. The doctor's moving papers included a declaration by an expert physician who reviewed medical records and stated a simple conclusion. So far so good. The doctor said that the underlying defendant accused of medical malpractice had performed within the standard of care. The problem here was the declaration didn't really have any analysis or supporting facts. It was just a conclusion. saying I've looked at the records and defended doctor acted within the standard of care. The patient oppose the motion, but didn't have any opposing medical expert declaration. On that basis, the trial court granted summary judgment. The patient appealed and the Court of Appeal reversed. And the question resolved this case, which was, what evidence does defendant in a medical malpractice need to meet his initial burden in a summary judgment and shift the burden to the plaintiff to establish a travel issue? In fact, the answer in this case was that when a medical expert offers a standard of care opinion, the expert has to provide the court with more than a simple conclusion that the standard of care was met. The expert expert has to have a reasoned opinion and it has to be supported with facts. Tim Kowal : 16:47
You know, Jeff, when you brought this case to my attention, it reminded me there's a there's a published case recently the held something similar, I don't have the the case name off the top of my head, but we'll put that in the show notes. But I do recall that that case held for the defendant. It was a medical malpractice case where the plaintiff opposed nursing homes motion for summary judgment on the basis of a doctor's conclusory declaration, and the trial court granted summary judgment, and the first district affirmed finding that the declaration failed to meet the sargan standard for expert opinion. Jeff Lewis : 17:22
All right, let's shift gears here again and talk about when and whether a plaintiff should seek continuance in response to a summary judgment motion. Code of civil procedure section 437. cs drafters included a provision making continuances, which are normally a matter within the broad discretion of the trial court virtually mandated upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion. That's the ball v Bank of America case from 2001. Making that request virtually mandatory. The court also has the discretion to deny the mSj in its entirety on this in its entirety on the same basis, if it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both, that the facts essential to justify opposition may exist, but cannot for reasons stated be presented. The court shall deny the motion order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as maybe just that procedure is very pro plaintiff. But I don't see invoked frequently in the cases I'm involved in. How about you, Tim? Tim Kowal : 18:34
No, we don't see discovery motions much in our MSJ practice, either. But after reading the cases that we've been discussing today, I don't know why that is because I now tend to think that when a mSj is filed against my client, it may be a good opportunity to get critical discovery quickly and painlessly. And if I don't get what I asked for, I may be entitled to something like favorable de novo review on appeal rather than the uphill climb of abuse of discretion. And that's because section 437 c subdivision h seems to limit the courts discretion on Discovery rulings when it is sought in connection with opposing a motion for summary judgment. I think a non moving party could get away with much more discovery in this situation than normal. What do you think? Jeff Lewis : 19:18
Yeah, I think you're right. Either they get more discovery than they otherwise would be entitled to, or they present their appellate lawyers with another additional argument to raise on appeal, so it's a win win. Tim Kowal : 19:29
Well, let's wrap up our discussion on MSJ's with some appellate tips on how to make a good record for your summary judgment. First, make your evidentiary objections, make them in writing and then raise them again at the hearing. Do not let the judge leave the bench without getting rulings on your evidentiary objections. Next, in making your evidentiary objections, be sure to preserve objections to authenticity of documents. In the absence of an objection, the document will be deemed authentic under evidence because 1414 and the issue will be waived on appeal. That's the 11 vs. lygon 2016 case. All cases referenced in the podcast are in the show notes. Similarly, under Section 437 C, subdivision D, that section expressly states that if you're objecting to the foundation of declarations and you do not make that objection at the hearing, the objection is deemed waived. So again, make sure you reiterate your objections after hearing. Jeff Lewis : 20:29
Yeah, and as you know, the most important document in making or posing a summary judgment is a separate statement, you brought this case, in this rule to my attention that I was completely unaware of, that the separate statement has to be, quote, plain and concise, close quote. I can't tell you how many cases I've been involved in where either the moving or the opposing side throws in everything but the kitchen sink in you'll have hundreds and hundreds of facts and each fact supported by either nine different declarations. But this case you pointed me to Russia v. White Corp gives the court discretion to completely disregard a separate statement that is not plain and concise. That was really eye opening to me. Tim Kowal : 21:17
Let me ask you something about that, Jeff. What I've done in my practice is I have tried to comply with the plain and concise requirement by pinpointing the evidence that is directly supportive of my undisputed fact. But when I have additional evidence that I think is secondarily supportive, I will put that in a second paragraph with a C citation so as not to obscure from the directly relevant evidence but so as not to waive my right to rely on that evidence at the hearing or on appeal. What do you think about that? Well, that run afoul of the plain and concise limitation. You know, it depends. I wonder how long your your opposition was and if it unnecessarily turned your separate time. statement from a five page separate statement to a 15 page separate statement because of all your See also cites. Yeah difficult call for practitioners to make them. Jeff Lewis : 22:11
Another point Trial Lawyers need to remember in terms of summary judgment is the proposed order. First of all is preparing a proposed order in advance ensuring it complies with the requirements of the statute code Civil Procedure section 437 C, subdivision g order must specify one or more of material facts on which there's a controversy if it's emotion if it's an order denying emotion, and the order has to specifically refer to the evidence if it's denying a motion. In orders granting summary judgment must specify the reasons for its determination and spell shall specifically refer to the evidence showing no tribal issue. So if the court grants a motion for summary judgment, do not set up an appeal by letting the court enter a defective order. And also, the court might refer to the evidence Supporting the order orally. So it's very important this kind of motion to have a court reporter present. Tim Kowal : 23:06
As a related point, do not put in your proposed order that the order granting summary judgment is based on, quote the courts entire file. I've seen that. Well, most practitioners probably use a motion template that has that verbiage in the Notice of Motion and probably just put that into the order for good measure. But do not use that in the MSG notice. 437 C. subdivision B seven requires that a motion for summary judgment, quote, shall set forth with specificity, the exact matter to which reference is being made and shall not incorporate the entire file. So it leaves no question that the legislature does not want the trial court being made to suffer through the entire file looking for evidence in ruling on these motions. Also, judicial notice, or judicial admissions are in any way involved in your mSj review. Those doctrines carefully. If evidence qualifies as judicial notice or as a judicial admission, the evidence cannot be controverted. But if the trial court Miss applies those doctrines and erroneously deems your evidence to be uncontroversial your summary judgment may be susceptible to attack on appeal. Jeff Lewis : 24:19
Well, that concludes our discussion of summary judgment motions. Let's discuss some of the recent legal news this week. Things are changing rapidly with respect to the COVID virus and the LA Superior Court issued a new order indicating they're not conducting any civil trials until August 10. at the earliest, and trials that are neither entitled to preference and that are not UD or unlawful detainer trials. Those aren't going to trial until 2021. So the slowdown continues. A case that caught my eye recently was Lauric vs huntin and requests issued by the third district court of appeal. This case caught my eye because it's a case involving California's anti slap law. anti slap motion was filed. But the Court of Appeal decided to publish this decision to call out lawyers who refer to these motions as anti slap motions. They that court prefers it when litigants and parties refer to the motions as special motions to strike. Tim Kowal : 25:18
I think good luck with that. I tend to think that that horses left the barn A long time ago. Jeff Lewis : 25:23
Yeah, I tend to agree. And also there was a case where appellate justices and Manas Trial Lawyers not to be cheap when it comes to court reporters. The courts exact words were there's no transcript of this hearing when appreciable sums are in play is mysterious why lawyers on both sides think the small cost of court reporting is a good cost to avoid. We publish this opinion in part to discourage misplace threat. That's a good reminder to always have a court reporter at key hearings. And that's the Pacific first national case that we'll put in the in the notes. Tim Kowal : 25:59
I think As appellate attorneys, the email that I send most to trial attorneys is do you have a court reporter for the hearing tomorrow? Jeff Lewis : 26:06
Unless you unless the tentative is in your favor? Have you ever been in a situation, Tim, where the tentative was in your favor and you advise the trial court not to have a court reporter there because of the favorable standard of review or difficulties in terms of preparing the appellate record that would be on the appellate? Tim Kowal : 26:21
Well, I do consider that but I'm always too squeamish not to have a court reporter. They're used strategically not chosen to have a court reporter not attend. Jeff Lewis : 26:32
Sometimes if I have a cost sensitive client, and I have a high degree of confidence that the tentative will be sustained. We do make that decision. Tim Kowal : 26:41
Yeah. Well, I like to, I would, I would like to have unanimity with my client and the trial attorney on any call like that. Well, one last bit of news the California Supreme Court just this week announced it will permanently lower the passing score for the California bar exam. And it release plans for October test administered online. Jeff Lewis : 27:02
I've got some friends who graduated law school with me who would have appreciated having that. That cutoff lowered. All right, well, that wraps up this episode. Tim Kowal : 27:12
If you have suggestions for future episodes, please email us at cow podcast@gmail.com. On the next episode, we will cover preliminary injunctions right to attach orders and some other interlocutory orders. Jeff Lewis : 27:26
See you next time, everyone. Unknown Speaker : 27:30
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases 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 ca l podcast com. That's c a l podcast.com. Thanks to Jonathan Caro for our intro music Thank you for listening and please join us again
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. To listen or subscribe, click here.
This episode of California Appellate Law Podcast discusses cases finding that orders generally considered not appealable to be appealable, such as demurrer orders, summary judgment orders, and statements of decision.
Listen here.
Appellate Specialist Jeff Lewis' biography and background.
Appellate Specialist Tim Kowal's biography and background.
Cases mentioned in this episode
Brown v. Butler (Cal. Ct. App., May 19, 2020 No. D075348) [unpublished]
Fidelity National Home Warranty Co. Cases (2020) 46 Cal.App.5th 812
Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894
Valero Refining Company - California v. Bay Area Air Quality Management District Hearing Board (2020) 49 Cal.App.5th 618
Lowery v. Kindred Healthcare Operating, Inc. (Cal. Ct. App., Mar. 20, 2020, No. A153421) [unpublished]
Nguyen v. Ford (2020) 49 Cal.App.5th 1
Weimer v. Nationstar Mortgage, LLC (2020) 47 Cal.App.5th 341
Coleman v. Arnswald (Cal. Ct. App., Apr. 15, 2020, No. C082882) [unpublished]
Marriage of Wilcox (2004) 124 CA4th 492
Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348
Renfro v. Chen (Cal. Ct. App., Apr. 6, 2020, No. F076083)[unpublished]
Blumenthal v. Jones (Cal. Ct. App., May 27, 2020, No. G057864) [unpublished]
Galen v. Redfin Corporation (Cal. Supr. Ct. No. S220936)
Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506
Other Resources Mentioned
SCAN Blog Post with Links to Video Argument in Second District
Please send feedback and suggestions for future episodes to CALPodcast@gmail.com.
TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. To listen or subscribe, click here.
The inaugural episode of California Appellate Law Podcast discusses California's anti-SLAPP law, Code of Civil Procedure section 425.16 and several key decisions by the California Court of Appeal and the California Supreme Court. In 1992, California enacted Code of Civil Procedure section 425.16 which provides a mechanism for quickly dismissing frivolous lawsuits and awarding attorney’s fees to the defendant. The law applies to lawsuits that arise from free speech or petitioning activity, such as filing a lawsuit.
Show Notes:
Appellate Specialist Jeff Lewis' biography and background.
Appellate Specialist Tim Kowal's biography and background.
California Supreme Court Cases on “Prong One” of the Anti-SLAPP Analysis:
City of Cotati v. Cashman (2002) 29 Cal.4th 69.
Park v. Board of Trustees (2017) 2 Cal.5th 1057.
Wilson v. CNN (2019) 7 Cal.5th 871.
Recent Cases on “Prong Two” of the Anti-SLAPP Analysis:
Gruber v. Gruber (2020) 48 Cal.App.5th 529.
Standard General v. Charney (Cal. Ct. App., May 4, 2020, No. B294313) [unpublished].
Recent Cases on “Prong One” of the Anti-SLAPP Analysis:
South Coast Property Services, Inc. v. Caelus (Cal. Ct. App., May 6, 2020, No. G057785) [unpublished].
Gotterba v. Travolta (2014) 228 Cal.App.4th 35
Recent Case on Anti-SLAPP Applied to a Federal Claim:
Patel v. Chavez (2020) 48 Cal.App.5th 484.
Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010).
Other Cases Mentioned:
Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180.
Dowling v. Zimmerman 85 Cal.App.4th 1400.
Westreich v. Higa (Cal. Ct. App., May 5, 200, No. B293726) [unpublished].
Third Laguna Hills Mutual v. Joslin (Cal. Ct. App., May 5, 2020, No. G057230) [unpublished].
Please send feedback and suggestions for future episodes to CALPodcast@gmail.com.
Transcript:
Announcer : 0:07
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 : 0:23
Welcome, everyone. I'm Jeff Lewis, Tim Kowal : 0:25
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 between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some about appellate perspective on various issues that arise both in trial court and on appeal. Jeff Lewis : 0:52
On this week's episode, we will be discussing California's anti slap law and a handful of cases from the Court of Appeal applying that and slapp law Tim Kowal : 1:01
and at the end of the episode, we'll discuss some recent activities by the court of appeal in light of the COVID-19. Shut down. As Jeff said, today, we'll be discussing some anti slap cases. Before we dive in Jeff, why did we decide to cover slap for the first episode of The California appellate law podcast? Jeff Lewis : 1:20
Well, anti-slapp issues have become such a fixture of civil procedure that it really has to be among the first considerations in any lawsuit. We now have close to 30 years of jurisprudence on the slapp statute. And whether you represent the plaintiff or the defendant, you simply must be prepared for the implications they will have on your case. Tim Kowal : 1:39
I completely agree. I think most of our listeners would agree as well. But Jeff is an appellate specialist, I think you and I might be able to give our trial attorney listeners some additional perspective on the procedural impacts of the slap law. And I know you won't say this on your own behalf but Jeff is one of the preeminent anti slapp attorneys in California and he's litigated so many slapp issues, both in trial courts and appellate courts, that he's now sought out as an expert witness on slapp issues. So start with the basics. Jeff, what is a slapp and what does California's anti slapp law do? Jeff Lewis : 2:14
Well, thanks for the kind words, slapp stands for strategic lawsuit against public participation. And California's anti slapp law is a procedure to weed out certain types of lawsuits that arise from free speech or petitioning the government. If a defendant believes they've been sued due to engaging in this protected activity, the defendant can find an anti slapp motion. If the court finds that the lawsuit was filed based on protected activity. The burden then shifts to the plaintiff to put on evidence and prove that the case has some merit. If the plaintiff fails to do so the case is dismissed and the plaintiff will have to pay the defendants attorneys fees. The law has been around since 1992. But in recent years, it has been my experience that the courts are construing that first part of the test. What we call prong one does it arise from protective activity? They've been construing prong one very narrowly, and fewer and fewer cases are receiving slap protection in my in my judgment. Tim Kowal : 3:12
That's true. I've also seen that trend toward narrowing the scope of prong one. Not only that, but on the other side of that coin, there also seems to be a trend toward deciding slap motions be a prong to, with cases stressing the very low factual threshold to establish prompt to so in practice, really, plaintiffs attorneys have two ways of trying to defeat anti slap motions. Jeff Lewis : 3:35
Right. And to better prepare to approach this tightening of the slapp statutes application, we thought it would help our listeners to trace through some of the key California Supreme Court cases applying the slap statute. And the first Supreme Court case really laying the groundwork for the prong one application was the 2002 decision in city of cotati versus Kashmir. Tim Kowal : 3:56
Right and starting with the cotati case, the California Supreme Court has employed a seemingly simple test on prong one. That test is if the plaintiff could establish the elements of its claim without relying on allegations of protected activity, then the suit did not arise from protected activity. And thus it's not a slap. That means that just because a lawsuit was filed in response to another lawsuit, as was the case in city of cotati, that is not enough by itself to make the suit a slap. Jeff Lewis : 4:29
Right, it could Totti case provided a straightforward analysis that depended on the elements of the cause of action. Right? Tim Kowal : 4:36
That's right. And that elements based approach that is focusing on whether any element of the plaintiffs cause of action is based on protected conduct. That has been the key focus of analysis ever since. But as some of the cases bear out many defendants, trying to broaden the reach of the anti slap motions have urged broader approaches. So the 2017 decision in Park v. Board of Trustees of California State University is a great example. Its facts are pretty simple. And by the way, citations to all cases discussed on the California appellate law podcast may be found in the show notes. So in that Supreme Court decision of Park v. Board of Trustees Park is a Cal State professor. He alleged that the university discriminated against him when it denied him tenure, the University in response filed a slap motion. So going back to our touchstone and cotati. Let's think about the elements of parks claim, which would be an unfavorable action by an employer that's based on the employee's race. On the face of parks claim there's nothing protected about the university's decision to deny tenure because of parks race. So under the pure elements based approach, there should be no grounds for a slap. So what am I missing? Jeff? You're missing some defense lawyers who really wanted to slap law applied here. What is Interesting in the park case is that a clever argument that the university made the attempt through, though unsuccessfully, to turn the plaintiffs case into a slap. Jeff Lewis : 6:08
And again under the rubric going back to 2002. If plaintiff can assert the elements of its claim without relying on protected conduct, there is no slap. And a decision to deny tenure is not based on protected is not itself protected conduct. Instead, the University argued that what part was really challenging was not the decision to deny tenure. But the discussion by the Board of Trustees discussions held during official proceedings. Tim Kowal : 6:35
Yeah, and that seems a little bit like a subtle shift, but you can see why the board had to try it out. That's because from the board's point of view, Parks whole case was going to be built around the racial motives behind the Board's decision to deny tenure. And the way Park was going to try to prove those racial motives was obviously going to be based on statements that the board members made during those deliberations. And those times payments should be protected under the slap statute. So it was a good effort by the board but still no slap. The Supreme Court rejected the board's argument. Of course, the board was free to argue as part of its defense that its discussions revealed no discriminatory motives behind its decision to deny tenure. But the elements of parks claims and that's the touchstone this elements but based approach, the elements of parks claims did not depend on those discussions. And that's all that matters and that elements based approach to prong one. Jeff Lewis : 7:33
Right, right. And then just last year, in 2019, the California Supreme Court handed down another anti slap decision in Wilson versus Cable News Network CNN. What happened in that case, Tim? Tim Kowal : 7:45
You know, courts really continue to struggle with the same kind of employment actions as was involved in park. So the High Court took another crack at it in Wilson v. CNN. Wilson was a journalist with CNN. He began raising concerns about CNNs treatment toward African Americans like himself. Wilson also had taken paternity leave. And shortly afterward, CNN began assigning Wilson menial assignments, and ultimately cnn fired him. Wilson sued alleging that cnn had discriminated against him and retaliated against him, as evidenced by assigning and menial work, despite his years as an award winning journalist. Jeff Lewis : 8:27
Well, so far this case of Wilson sounds a lot like park where the court held that the wrongful motives were not part of the plaintiffs claims and thus could not support the employer slap motion. Tim Kowal : 8:37
I thought it was quite similar, but the Court of Appeals split on the case and the Supreme Court issued a lengthy decision that is rather difficult to follow. It reads in large portions of it a bit like a law review article. But the upshot is this, an employment action might be protected if it was in furtherance of the employers speech or petitioning rights. But the court also held that whether and employers action was based on protectable on a protectable motive or a wrongful motive could not be determined based on plaintiff's allegations by themselves. In the case of Wilson, the plaintiffs allegation that he had been fired because of racial discrimination would not be taken at face value, because cnn had in fact carried its burden to make a prime aphasia showing that it had fired plaintiff for plagiarism. The court would credit that toward the prong one analysis, but Wilson does expressly reiterate Park's holding that the defendant must show the protected conduct supplies at least one element of plaintiffs claim. So the court has expressed clearly now in two recent opinions that the approach to prong one is element based. Jeff Lewis : 9:51
So Tim, why is the supreme court conduct such lengths in Park and Wilson to emphasize the element based approach to prong one in SLAPP cases? Tim Kowal : 10:01
I think perhaps the court felt that clarification was needed because some of the intervening intervening cases had muddied the waters a bit. For example, the Supreme Court's 2011 case in Oasis, West realty versus Goldman, had held that a client's lawsuit against its former attorney was not a slab. But in so doing the court started not with prong one, but with prong two. And under the prong two analysis, the court had inferred that the attorney had relied on confidential client communications. Then taking that inference back to the prong one analysis. The court held that an attorney's misuse of client information was not protected, and thus the suit was not a slap. This approach might have given the idea to the defendants like like the Board of Trustees and Park, that prong one might turn on issues and defenses in the case other than Simply the elements of plaintiffs claims. Jeff Lewis : 11:03
And you will see the reason Park and Wilson are important as we discuss some recent appellate decisions. defendants continue to file slap motions by pointing to different kinds of protected activity that might lurk behind a lawsuit. Some of the recent cases suggests the courts may begin to avoid these prong one arguments altogether, instead, go directly to prong two's factual inquiry. Tim Kowal : 11:27
Alright, so let's talk about some more recent cases. Jeff, can you tell us about the recent case in Gruber versus Gruber? Jeff Lewis : 11:35
Sure. Gruber involves an anti slap motion to a malicious prosecution claim and as an aside and malicious prosecution claims whenever a malicious prosecution claim is filed, the courts have generally held that prong one is satisfied automatically because malicious prosecution by its nature involves filing a lawsuit in the prior case so it touches upon protected activity. Now in the Gruber case, a couple of suits Their daughter in law for repayment of loans or their former daughter law for repayment of loans. And they also alleged promissory fraud a very serious claim. The daughter in law successfully defended against that suit on the grounds that the monies were gifts, not loans. And for good measure, she sued her parents in law for malicious prosecution, claiming that they had sued her for retaliated in retaliation for divorcing their son Tim Kowal : 12:23
Our profession really can be depressing can it. Jeff. So I take this as this is about the time that a slapp motion appears on the scene. Jeff Lewis : 12:31
Right in response to the malicious prosecution case the parents filed an anti slapp motion the superior court denied the anti slap motion and the parents appealed. Division Two of the second district issued its decision. And the Gruber court held that when there's a dispute over what facts that previously suing parties knew at the time they brought the suit, meaning the parents hear the in laws. A trial court faced with an anti slap motion by those parties must decide whether the malicious prosecution plaintiff has shown that our allegation that those parties lacked Problem cause has minimal merit. How is this to be done? They held that trial court should do so by resolving all factual disputes regarding what was previous with the previously suing parents knew by accepting the plaintiff's evidence is true. And then through that lens, evaluating whether the prior claims were legally and factually tenable. The court applying that holding concluded that the daughter had proven that her malicious prosecution claim against her parents in law had minimal merit, and that the trial court acted properly in denying the anti slap motions to dismiss that claim. Tim Kowal : 13:36
It sounds like there was not really much in the way of a prong one analysis, which is not surprising in a malicious prosecution action is prong one is a given. So Jeff, why did you find this case? Interesting? Jeff Lewis : 13:47
Well, I didn't find it interesting as a prong one case because like I said, All my prosecution cases involve prong one findings automatically. This is really a prong two case and the focus was on whether the plaintiff could prove the minimum merit of their case. This case provides a lot of wiggle room for plaintiffs and malicious prosecution cases to find or create tribal issues of fact as to facts known by the defendants at the time the prior action was filed. It's an example of the extremely lenient standards, the courts are giving prong two analysis. Tim Kowal : 14:21
I know you've handled malicious prosecution cases, Jeff, so I wanted to ask you this. We know that malicious prosecution actions are disfavored in the law. Do you find it noteworthy that the Gruber court here emphasize that only minimal merit was needed to survive a slap motion even on a disfavored claim like malicious prosecution? Jeff Lewis : 14:40
Yes, indeed, the courts are not going to get rid of malicious prosecution actions at the slap stage unless it is obviously in the hope of hopelessly frivolous, most malicious prosecution actions are going to survive a slap. Tim Kowal : 14:53
Okay, let's talk about another case. This one involving prong one, whether the lawsuit arises from protected activity The next case is South Coast property Services Inc versus caylus Corporation. This is a case out of the fourth district division three in my neck of the woods in Santa Ana. It's written by Justice Aronson in it is another unpublished case, but it gives an indication which way the winds are blowing. South Coast property involves a claim to rescind an agreement to purchase business assets. In response to the rescission complaint that the defendant filed a cross complaint for repudiation of that same agreement. plaintiffs then responded by filing an anti slap motion. So let's try to imagine what the allegations of the cross complaint must have been. It alleges a contract obviously, it alleges that South Coast had failed to perform on that contract. And it also must allege that based on South Coast statements and the rescission complaint southcoast has no intention of ever performing. So Kayla says cross complaint seeks relief from southcoast. So pretty blatant slap in my eyes, wouldn't you think, Jeff? Jeff Lewis : 16:06
Absolutely. I can certainly see why they are anti slap motion was filed here. But what did the court think? Tim Kowal : 16:12
Well, the trial court was vexed, and it called the question a close one. But it ultimately denied the anti slap motion, because the trial court thought that even though the anticipatory breach cross complaint had been precipitated by South Coast rescission complaint, there must have been a decision to rescind that predated the rescission complaint. And so the trial court reasoned that the cross complaint was really based on that underlying decision to rescind which was not protected by the slap statute. It was not based on the the trial court reason that the cross complaint was not based on the lawsuit itself, which merely gave notice of the plaintiffs decision to rescind. And the Court of Appeal agreed with that reasoning. That seems pretty subtle. So The Jeff Lewis : 17:00
Court held that a decision to rescind an agreement is separate distinct from a lawsuit for rescission. Did the cross complaint clearly allege that the breach was based on the decision to rescind rather than the filing of the lawsuit for rescission? Tim Kowal : 17:12
No, in fact, it did. As far as one can tell from the cross complaint, it arose from South Coast filing of the complaint. So you can see again, why South Coast had to bring the slap motion, because just from the four corners of the cross complaint, it sure looks like it arose from Clearly Protected activity. Jeff Lewis : 17:30
So why did the court find that prong one was not met here? Tim Kowal : 17:35
Well, as often happens on appeals, the court reaches its holding based on something neither party ever considered or even argued, instead of looking at just the four corners of the cross complaint that's alleged to be the slap. The court also took a look at South Coast's rescission complaint. And in that complaint, South Coast had alleged that some months before it ever filed the rescission complaint. It had sent Notice of rescission to kailis, the court found that allegation to be a judicial admission that the decision to reset to rescind had in fact been a separate decision that predated and was distinct from the filing of the complaint. And again, that decision to rescind was not protected. As an aside, courts sometimes make mischief with judicial admissions, which is a subject that maybe we'll cover in a future episode. But it is worth noting that there is currently a split of authority whether a judicial admission must be counter admitted in order to be binding. In other words, ask yourself is an app is an allegation in a complaint, a judicial admission by itself? Or must the defendant admit the allegation in its answer before it becomes a judicial admission? This court the fourth district Third Division, in an unpublished 2017 decision held that admissions and a complaint that have not been admitted in the answer cannot deemed judicial admissions. Interestingly, that the same court does not follow its own precedent. In this case, the south coast versus Kayla's case that we're talking about. One of the privileges the courts enjoy by by way of the use of unpublished decisions, I suppose. So back to the reasoning of South Coast versus kailis. The court explained that based on South Coast own allegations in its complaint, it had made the decision to rescind prior to filing its lawsuit, and that decision was not protected. Thus, the Court affirmed the denial of the anti slap motion. Jeff Lewis : 19:34
This sounds like a good example of why it's so important to carefully consider every allegation of pleading for consequences and possibly drawing an anti slap motion on the other side once it's filed. If the plaintiff had not served a rescission demand prior to its lawsuit, or if it not alleged that it had given notice of rescission and lawsuit. Do you think the court would have found a slap here? Tim Kowal : 19:57
That's a good question. The Trial Court of apparently did not rely on the plaintiff allegation that an earlier notice of rescission had been given. The trial court apparently just inferred that that decision must have predated the complaint. But the Court of Appeal went out of its way to find factual support for that inference in the record. I suspect the court would have reached the same result without the allegation. But as you said, it would be a very subtle inference, I think. Jeff Lewis : 20:24
And does that South Coast property case rely on park? Tim Kowal : 20:29
Yes, in fact, it prominently cites both Park and city of cotati in affirming the slap analysis is focused on the plaintiffs theory of liability and the elements of the cause of action. So again, we have this elements base focus on prong one. The court and South Coast property notes that the cross claim or repudiation, quote does not depend on Kayla says rescission cause of action and quote, but rather on the underlying decision to rescind. I do find it curious that the south coast property courts Didn't cite the published and much more star studded decision out of the second district division six in Goddard versus john travolta. That was a 2014 decision in which john travolta, his former pilot had blabbed to the press that he and Travolta had had a sexual relationship. There was a termination agreement with the confidentiality clause and Travolta's attorney threatened to sue for breach of it. But God claimed that there was a different agreement without a confidentiality clause. So garba filed his own complaint for declaratory relief, asking that the court rule which agreement applied. Jeff Lewis : 21:38
It sounds a lot like South Coast property. I assume an anti slap motion was filed next. Tim Kowal : 21:42
Right, Travolta filed a slap motion arguing garbus complaint had been retaliation against Travolta's attorneys demand letters, which were protected litigation activity. Just as in South Coast properties we just discussed the court disagreed finding that there was no slap The court concluded that God Arbaaz complaint did not arise from this, what it called saber rattling demand letters from Travolta's attorney. Rather, the court reason that God or buzz complaint concerns simply the validity of the agreements. The demand letters just gave notice of the existence of that dispute. The demand letters were not relevant to how that dispute ultimately would come out, thus no slap. This is another one of those cases that parse the difference between speech that is an element of the claim and speech that is mere evidence of the claim. As the court held the pilots lawsuit, quote, does not seek to curtail Travolta or his attorneys right to send demand letters. So there was no protected activity. My own view is that despite despite the courts efforts to enforce this distinction, we'll continue to see it come up. When it comes to subtle distinctions like this. It is too much to expect the results to come out consistently in the example of a declaratory relief claim like in God or above Example. The existence of a dispute is in fact, a necessary element to establish before a court may grant relief. That point was not really addressed in garba. And I think it could be asserted as a legitimate basis to argue that a debt relief claim may in fact arise from a quote, saber rattling demand letter. Jeff Lewis : 23:20
What do you think, Jeff? I think enclose cases like this where the court has to make subtle distinctions in a closed case, the court should defer prong one cases and finding that protective activity was the basis of the lawsuit and apply the slap law in the the intent of the legislature was at the slop law be construed broadly. Tim Kowal : 23:40
It is a remedial statute, isn't it? It is. So the next case we're going to discuss is standard general versus dub Charney. It's another unpublished but instructive case out of the second district division five. What happened in standard GENERAL JEFF? Jeff Lewis : 23:59
Yeah, this is an May 2020 case and between 2016 and 2018, standard general had obtained a series of judgments against charny, totaling nearly $30 million. And as part of its efforts to collect on that on those judgments, standard general then sued Chinese attorney key think standard allege that charny had attempted to shield real property that standard general could use to collect all these judgments by fraudulently transferring the property to attorney Keith Fink. And Charney and Fink filed anti slap motions in response to the complaint, and the motions were denied. And charny and Fink appealed. Tim Kowal : 24:39
Well, so far, this seems like a like it involves clearly unprotected activity, but I'm biased because I was on the judgment creditor side in a similar lawsuit recently, where the sixth district agreed with me that transferring property to keep it away from creditors is not protected merely because the transferee is an attorney. Jeff Lewis : 25:00
Well, the trial court agreed with you, Tim here. But interestingly, interestingly, the second district skipped prong one entirely. In fact, the Court of Appeal actually assumed that the lawsuit arose from protected activity. He didn't have any analysis on that issue. Instead, the court focused solely on prong two, and the plaintiffs ability to prove the minimal merit of the claim against attorney think, on appeal, the Court affirmed the denial of the slap motion upon that standard general had made the requisite low threshold showing that the deeds of trust were fraudulent, and that keep thinking did not take the interest in property in good faith and for a reasonable reasonably equivalent value. Tim Kowal : 25:38
So what kind of guidance does does this case give us does it tell us anything about how courts are likely to handle prong one? Jeff Lewis : 25:46
To be clear, the Court of Appeals did not hold there was protected activity it skipped over prong one. It's not really useful as authority on the prong one issue but underscores how low the prong to burden is once you get past that Minimal merit lens used by the court of appeal is extremely low. Here the only real proof that plaintiff standard general had at the stage of the slap motion was circumstantial evidence pertaining to the timing of the Real Property transfers and other indirect evidence of fraudulent transfer. Tim Kowal : 26:20
I had mentioned a recent sixth district case I handled with analogous facts. The defendant attorneys argued in that case that the money they received from a judgment debtor had been used for litigation and was therefore protected. relying heavily on Park and Wilson the sixth district held that this was not a slap and the sixth district did rely on prong one in fact, that was that was the entirety of the analysis is that there was no no protected activity at issue. All right, let's change gears slightly and talk about a California case dealing with the federal claim. The cases Patel vs. Chavez out of the second district, the division one by Justice rothchild. The employer sued the employee alleging that the employee had violated section 1983. By falsely testifying at a labor hearing on wage claims, the employee filed a slap motion. on appeal, the employer made the interesting argument that the slap statute does not apply to federal claims. The employer obviously got this idea by reading some federal cases because the slap statute is partly procedural in nature. There are interesting Erie doctrine issues at play when filing a slap motion in federal court. And it is true that a federal court can only entertain anti slap motions in connection with state law claims. The authority for that is Tilton versus Hallmark cards, which will cite in the show notes. Jeff, have you dealt with any slap issues in federal court? Jeff Lewis : 27:52
I have I try to avoid federal court where I can on these snap motions can be very thorny in federal court. They only apply to stay claims as you mentioned, and also because the slop statute is procedure, all federal courts apply it through the lens of applicable federal tools like rule 12 b six or rule 56. And the discovery state does not apply. Tim Kowal : 28:13
That brings up another issue in Patel. because Congress has indicated that section 1983 claims are remedial in nature and therefore to be construed liberally. The employer argued that the discovery stay imposed by the slap statute, contravened congressional intent behind section 1983. The Patel court noted that the employer should have sought relief from the stay as contemplated by the slap statute. So the so the court ultimately rejected that argument. So in that vein, here's an appellate tip for trial counsel, plaintiffs who are opposing an anti slap motion to a section 1983 claim and state court should consider seeking leave to conduct discovery, citing that without such relief, the automatic Xj would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress concerning 1983. And they can cite the Patel case at page four for that proposition. If such relief is denied in the anti slap motion is granted this could tee up a good argument on appeal that the trial court applied section 425 point 16 the anti slap statute in such a way as to improperly impinge on substantive federal rights, as warned against in Patel. Jeff Lewis : 29:33
Yeah. You know, I agree. I think I'd broaden that out though. I think whenever you're opposing an anti slap motion if discovery is needed, trial counsel should definitely think about filing a motion requesting discovery. And the denial of that motion provides another tool for appellate lawyers like you and me to raise on appeal. Let's talk about another prong one case Greco v Greco. This case was filed in Shasta County between two siblings fighting over their late parents trust the defendant, the Brother used trust assets to fund his litigation expenses, and his sister bought a lawsuit to challenge the brother spending of trust money. The brother responded to a sister's lawsuit with an anti slap motion, claiming that the lawsuit arose from his constitutional right to file lawsuits and petition the government. The trial court denied the motion finding the enactment is burden on your problem. To prove that the lawsuit arose from protected activity. The Court of Appeal affirmed, it agreed that the gravamen of most of the lawsuit was simply misuse of trust funds not litigation. For part of the appeal, the Court of Appeal held that one cause of action routed on statements made about the prior litigation or protected activity. And the case was remanded for further proceedings just on that one claim. Tim Kowal : 30:45
This case also sounds like that six district appeal I just won where it found that there was no slap so I'm anxious to hear how you come out on this case, Jeff? Jeff Lewis : 30:54
Well, in grecco, the brother argued that funding of civil litigation is communicative conduct that falls within seconds Four to five point 16 anti slap statute. The Court of Appeal disagreed and found that the most important allegation in the complaint was that the brother took the funds out of the trust. The fact that he decided to use the funds for litigation was not relevant to the outcome of this decision. I have to say, I don't really agree with the outcome here. If I were wearing a black robe, I would have found that the claims rested on using the trust funds for an improper purpose. The improper purpose was pending litigation. And there's not enough daylight between the act of taking the funds and using it for the litigation to conclude that it did not arise from the prior lawsuit. I would have found the wrong one applied. Tim Kowal : 31:39
Well, I guess I don't have to tell you that I do agree with the grecco. Court. But I will tell you that when I looked at this case again recently, I started to agree with you, Jeff. Many cases mentioned that litigation funding is protected. And they they repeat that almost like a mantra. And in Greco the funds were used only for litigation. But then I remembered that I had once spent some time researching the source of the mantra that litigation funding is always protected activity, but none of the cases that invoke that mantra actually explain what it means. The only good example I've ever found of protected litigation funding is a case a 1995. case out of the fourth district, Ludwig versus Superior Court. And in that case, Ludwig was a developer competing on a shopping mall project in the city of Hesperia. And he had hired people to file to file meritless lawsuits against a competing mall project in the city of Barstow and Barstow sued, sued Ludwig and Ludwig filed a slap motion. And the court said that no because funding a lawsuit is no different. From filing a lawsuit yourself. The litigation funding was protected activity. Ludwig had used his own money for litigation in Barstow did not claim that Ludwick had wrongfully obtained the money that Greg case, if I'm not mistaken, made clear that there was no cause of action that said that the use of the money was somehow an abusive process or malicious prosecution. The claim was only tethered to the, to the manner in which the funds were obtained. You know, Jeff Lewis : 33:17
I would guess that the sister in that case avoided alleging malicious prosecution to try to avoid an anti slap motion yet found yourself basically and it's not motion nonetheless. Tim Kowal : 33:28
I think she had shrewd counsel in that case. Jeff Lewis : 33:33
All right. Shifting gears here. Are there any other rules about slow slap motions that you find Trial Lawyers sometimes overlook? Tim Kowal : 33:40
I've noticed that many attorneys assume the automatic stay imposed by the slap statute covers the entire case and even during the appeal, that's not necessarily so in all cases. Normally, a slap motion filed by certain defendants does not stay the action as to other defendants. The same goes for appeals from such motions. The authority that counsel may look to for that is Dowling versus Zimmerman, which holds that perfection of an appeal from an order granting a slap motion does not automatically stay enforcement of a judgment, awarding attorney fees and costs. Another tip counsel should be aware of is that slap orders are immediately appealable. So do not be misled into thinking that a subsequent judgment affects your time to file a notice of appeal. And the same is true in federal court. But do note that a slap order in federal court is not appealable when it resolves less than the entire case. The Case for that is high end vs Hummer, a ninth circuit decision. Those are about all the slap cases I can manage in one sitting. What's happening in legal news this week? Jeff Lewis : 34:50
Well, let's talk about a few cases that caught my eye over the past few weeks. The first is West stretch versus brandel. A unpublished decision Coming out of the second district, involving a lawyer who repeatedly cited unpublished cases in his brief, he did it in his opening brief. The court and the opposing counsel reminded him of the rule against citing unpublished cases. And the appellate counsel did it again in the reply brief, and in this unpublished disposition, the Court of Appeal impose sanctions of $1,000 for citing to an unpublished case and in his brief, that seems a little harsh. It does and it seems, you know, usually there has to be more conduct more misconduct than simply citing unpublished case. For the Court of Appeal to issue sanctions. I was surprised, but it's a good warning for everyone that you cannot cite unpublished cases. Some other news, you know, the courts are starting to reopen after the COVID-19 crisis up in LA. We just had our first full week of the court opening and started to appear telephonically in the spirit court and things are moving very slow trials are getting set very far out. And clients are getting frustrated by how slow things, things are moving both in terms of trials and the impact on the appeals and the preparation of appellate records. In addition to that, Court of Appeal is still conducting oral argument. But it's all happening by telephone. I had an argument a couple of weeks ago in the second district by phone, it was very different to do it by phone and not be able to see the facial expressions of the three justices hearing the case. But I muddled my way through it. And I see that the fifth district is starting to go to Video arguments. And there's a rumor that the second district starting as early as July might move all of their arguments to video, but I don't think that's happened yet. Tim Kowal : 36:55
I imagine eventually we'll have all of the oral arguments in the Courts of Appeal v. A video What do you think? Jeff Lewis : 37:01
I think that is the way we're going to go and I know my clients enjoy down to the fourth Appellate District seeing the live stream of the videos and not having to come down to the court of appeal. Well, that wraps up this episode. Tim Kowal : 37:15
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, we will cover dimmer orders which are not appealable except Jeff Lewis : 37:30
when they are right See you next time. Announcer : 37:34
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In a recently affirmed decision TVA obtained for the Chapter 7 bankruptcy trustee, the U.S. Bankruptcy Court held that a QPRT - generally irrevocable and commonly used in estate planning to hold personal residences - may nonetheless be revoked when the debtor retains a right to reacquire ownership of the residence.
The View from Inside:
QPRTs cannot keep a debtor's home outside the bankruptcy estate, Central District Bankruptcy Court holds
The case, In re: Robert Ferrante, involves a former savings-and-loan banker, Robert Ferrante, who owned a beautiful 5,500 square foot home on an exclusive island in the harbor of Newport Beach, California, with a 50-foot frontage overlooking the bay. In 1994, Robert transferred property into a QPRT - a qualified personal resident trust - with a 20-year term, to expire in 2014.
TVA successfully argued that, because Ferrante could terminate the QPRT by ceasing to use it as his own personal residence, the QPRT was thus de facto revocable (no matter what it said about being irrevocable), and thus it did not qualify as a QPRT for federal estate and gift tax purposes. The QRPT therefore failed, and the beautiful Newport Beach home reverted to Ferrante, and therefore to his bankruptcy estate.
In other words, Ferrante had the ability to effectively "toggle" into the off-position the QPRT at any time, simply by choosing to no longer live in the home, and this destroyed the QPRT's protections as to his creditors and made the home available for liquidation.
The upshot: ALL QPRTs are revocable for Chapter 7 bankruptcy purposes because whatever a debtor can do, his/her Chapter 7 trustee can do. Since a debtor can move out, thereby voiding the QPRT, a trustee can impliedly move out and thereby revoke the QPRT. The BAP did not reach this issue, although it was a hotly discussed topic at oral argument, because it did not need to reach it to affirm Judge Albert's ruling.
In addition, certain QPRTs will be revocable if the settlor retains an illegal right to redeem the property at any time before the end of the 20 year term. This will violate the 1997 regulations that specifically require an express statement that the settlor cannot redeem the property. Ferrante argued that his 1994 trust was grandfathered in, but the statute addressed that and gave such trusts 90 days to commence amendment of the trust agreement. Since Ferrante never did so, Judge Albert ruled that he waited too long.
TVA's victory was written up by Forbes.
An attorney pursuing an appeal may be tempted to raise any and all arguments - however flimsy - before the appellate court, in an attempt to see what sticks. The Third Appellate District, however, urges attorneys to resist that temptation.
In Leino v. Balkcom, Appellate Case No. C080950, a client and his attorney raised seventeen (!) arguments on appeal in an attempt to wiggle their way out of $16,060 in sanctions awarded against them. The court's opinion fairly drips with irritation; it dispenses with eleven of the issues raised in one paragraph, noting that they were not timely raised. As to the other six issues, the court's brevity in dismissing them is telling. "We are not persuaded." (p. 15.) "We reject the argument." (p. 17.) "We conclude the record does not support the factual assertion upon which their claim depends." (p. 11.) It seems fair to say the Third District did not relish the idea of entertaining 17 separate arguments on appeal, and drafted its opinion accordingly.
Ultimately, an attorney would be wise to limit the issues raised on appeal; the more arguments raised, the less likely each is to be successful. And, should the imprudent attorney raise 17 such unsuccessful arguments, it may face not only an affirmation of the trial court's order, but also "[a] copy of [the] opinion...forwarded to the State Bar of California..." ( Leino, p.
