Peremptory Challenges and Motions for Reconsideration: California Appellate Law Podcast Episode 5 (Sept. 26, 2020)

Timothy Kowal, Esq.
September 26, 2020

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., 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


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 That's c-a-l 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

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 That's Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again

The owner of this website has made a commitment to accessibility and inclusion, please report any problems that you encounter using the contact form on this website. This site uses the WP ADA Compliance Check plugin to enhance accessibility.