Strange Appellate Things: Untimely Appeals OK’d, No Right to Settled Statement, and… “SMACC” Suits?

Timothy Kowal, Esq.
May 31, 2022

Jeff and Tim discuss some surprising recent cases, including two cases where the courts allow untimely appeals, and a case where the right to an appellate record via a settled statement was duly requested and rejected in the trial court and with no recourse in the Court of Appeal.

And Jeff previews an anti-SLAPP motion brought by Sony Music that might be characterized as a SMACC: a strategic motion against credible claims. Did the Legislature, when enacting the SLAPP statute, have corporate giants like Sony in mind?

Cases discussed in the episode:


Tim Kowal  0:03 
deeming an untimely appeal to be timely for no reason at all, just seems to me like random violence to appellate procedure.

Announcer  0:11
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:25 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:27
And I'm Tim Kowal California Department of podcasting. pending review. The California appellate law podcast is a resource for trial and appellate attorneys Jeff and I are appellate specialists we split our time about evenly between trial and appellate courts. In each episode, we try to bring our listeners some legal news and tips they can use in their practice.

Jeff Lewis  0:44
Welcome to Episode 35 of the podcast and a quick announcement. This podcast is sponsored by case Tech's case Tex is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority quickly. I've been a subscriber since 2019, and I highly endorse the service and listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at case That's case LP.

Tim Kowal  1:17
Yeah, I've been a longtime user of case texts as well. The parallel search search function is amazing. And I highly recommend using it. And all of the cases that we cite in our show notes are through case text. So this this week, we were going to share some recent cases and news. And the first pair of cases that I wanted to share Jeff are about dealing with untimely appeals. And when I first started doing a lot of appellate law blogging, and we did this podcast, I mostly wanted to try to find, you know, scary cases and be able to jump out from around the corner and scare poor trial attorneys into this is why you need to worry about appellate procedure because this is how easily your appeals can get dismissed. But I found a pair of cases this week where clearly untimely appeals did not get get dismissed and I was just gobsmacked by it. The first case I wanted to share is Peltor versus one 800 get thin inside of the second district. It's a May 2022 case it's unpublished. And there the court and appeal filed a full 10 months after the judgment was entered. The deadline could not have been more than 180 days after the rule. So at a minimum, this appeal was filed more than four months late. But the court found the appeal was timely. How can an appeal filed 10 months after an appeal after a judgement possibly be timely? Jeff? Well, the answer you see is that there was an amended judgment that were the the word of the plaintiff costs in month eight. So are the defendant I guess here so it was timely as to the amended judgment. But wait a minute, the respondent argued the arguments on appeal had nothing to do with the cost Award and the amended judgment. The entire appeal was attacking the 10 month old judgment and an amendment judgment.

Jeff Lewis  2:58
Yeah, my gut would tell me that. Okay. If you want to file that later notice of appeal to the later judgment, then sure you're welcome to attack the costs, but you're out of luck for arguing the merits? No, my gut tells me

Tim Kowal  3:10
Yeah, yeah. The rule is that an amended judgment that merely orders cost does not restart the time to appeal from the underlying judgment. But the court disagreed it said, quote, no principle or authority supports that argument that the rule I just said that, that an amended judgment unless it substantially changes. The underlying judgment does not resurrect the time to appeal from the underlying judgment. But the Court of Appeal held that the appeal here was timely. Now, Jeff, I think I know that the court is mistaken here. There are in fact that at least and certainly it's mistaken that there is no principle or authority that says the holds for that rule that I just stated. There are several cases, in fact, including out of the second district that hold that an amended judgment does not restart the time to appeal unless it changes the substantive underlying judgment. But again, the court went on to affirm I guess you could chalk this up to the no harm, no foul principle, but I'm not so sure, deeming an untimely appeal, to be timely in order to do justice is at least something that's an intelligible, I can understand the impulse. But here, the court didn't reverse it still went on to affirm and so deeming an untimely appeal to be timely for no reason at all, just seems to me like random violence to appellate procedure. What do you think, Jeff?

Jeff Lewis  4:29
Well, I have a few thoughts. First of all, you know, it's unpublished and it goes, you know, we've talked for a few episodes about our thoughts about why more opinions should be published in by unpublished decisions, certain things kind of fall under the radar, and this is clearly bad. And let me say this, you know, the bottom line rule is to be safe, you should always file a notice of appeal from the original judgment, as well as the amended judgment just to make sure covering your bases No, no appeal ever got dismissed from filing too many notices of appeal, but I was thinking back About a tweet you recently sent on Twitter, where you said you ascribe a theory of the Jeff Lewis law hypothesis for the utility of complicated appellate rules, relaxing the machinery of our connahs How appellate judges show sympathy to deserving litigants without changing the actual outcome. And here, in this case, the one 800 gift in case the lead appeal was allowed at the trial courts really ultimately was affirmed the appellant lost and the young woman who died on the operating table rather than having her case thrown out on a timing issue for an untimely appeal, the case was thrown out more or less on the merits. So I guess this result in in this one 800 get thin case would offer further evidence in support of support of my hypothesis,

Tim Kowal  5:43
it may support your hypothesis, as I said, it didn't the court went on to affirm so you could say it's no harm, no foul. But I wonder why did the court bother to even take up the issue? Maybe the court could have just swept it under the rug not even said a word about the appeal ability or timeliness issue. And, in fact, that is what that's what happened in the next case that I'll talk about. It's heard versus heard. And I should disclose I'm I represented the respondent in this in the appeal in this matter. So I'll be a little circumstance circumspect about the facts. So this, you honest, yeah, there's another non published opinion here. And and I'll back up because it relates to another case. Also, which I consulted on, it was cast versus Kelly. And so both are heard case in the cast case are both out of the second district. I was brought in, in the cast case to consult on an appeal, after the court had requested briefing, why the appeal was not untimely, because because it had been filed more than 60 days after the Notice of Entry. And the best argument that I could come up with was that the Notice of Entry did not attach the judgment. And the court concluded Nah, that's not a good reason. The rules state that the that what starts the 60 day clock is either a file stamped copy of the judgment or a Notice of Entry. It doesn't say that the Notice of Entry has to attach the judgment. But here's what happened in the Hurd case, the shoe was on the other foot, I was the respondent there and the Appeal had been filed more than 60 days after a Notice of Entry. And the Notice of Entry there did not attach the order that was appealed from so the same reasoning came up as in the cast versus Kelly case. I, I argued that, hey, the rules of court do not require that the Notice of Entry attach the judgment and the court concluded. No, it's it's timely. And then it went on to reverse the judgment. Now Chase, the but there the court didn't even make a whisper about the appealability or the timeliness issue. It just acted as if it never it never was raised. And so I took I took up a petition for review to Supreme Court there on grounds that the Court of Appeal lacked jurisdiction, because as we know, or as least as we're told, appealability and timeliness of the Notice of Appeal are fundamental jurisdictional issues with the court summarily denied my petition.

Jeff Lewis  7:57
Yeah, well, it doesn't surprise me Supreme Court doesn't exist to cure legal error. They scream Supreme Court was more concerned with published opinions. And these were both unpublished disastrous results rather than affecting what a prior guests called the tapestry of our case law. Right.

Tim Kowal  8:11
It could be but if we start to see a lot of these cases come up that that run roughshod over the jurisdictional rules that ignore the gatekeeping function to ensure that our courts of appeal only hear appeals from from appealable issues and that are filed timely, then, how long can we continue to maintain the belief that the court is on the level when it says that these are jurisdictional rules? Recall that there was the Supreme Court not like I guess it's a little while ago back in 1975. And the Hollister convalescent hospital versus Rico case that involved an appeal that was dismissed because it was filed one day late. And why was it filed one day late? Because the clerk told the appellant the wrong date that the order had been entered. So completely innocent appellant upon a miss mistaken report from the clerk wound up filing an appeal one day late and could not get relief from the Supreme Court there. But now we have the way to get relief. If the court ever asked how can we possibly entertain this appeal when it was filed late? You could just say, Well, I have seen courts just simply ignore the issue, Your Honor, and that seems to work just fine.

Jeff Lewis  9:19
Yeah, that might not be my argument.

Tim Kowal  9:23
It's only one that exists and it seems to work. All right. Another another topic moving on from timeliness and untimely appeals. Another perennial topic of interest to appellate attorneys and to trial attorneys. Are is the record on appeal. And, you know, Jeff, as appellate attorneys are number one, and the most common advice to trial attorneys is get a court reporter for your hearing. If you don't have a court reporter What do you do the only other game in town are settled statements. Now personally, I've never done a settled statement. But there is it is a it is provided in the rules that you can put together. are a proposed settled statement explaining what had happened at the at the hearing or the trial. And the court is supposed to review it and sign off on it and maybe make edits as necessary. And that becomes the record of the oral proceedings for purposes of appeal.

Jeff Lewis  10:13
Now, I have to say, you know, I understand the theory behind this, and I've been involved in a lot of appeals with settled statements. I've never actually prepared one, but I've been involved where I've had to read them. The respondent In theory, it aids the Court of Appeal, figure out what happened at the trial level, but in practice, the settled statements don't really add much they're not a replacement for reporters transcript in any meaningful sense. They will say, you know, a person one argued ABCD, person two argued 123, and the judge ruled ABC, and that's about it doesn't really give you much flavor. So I've never really understood why a party that provides a settled statement as to what happened, receives preferential treatment in the Court of Appeal over a party who had no court reporter and didn't go through the hoops of a settled statement. I've never understood. I've never understood that. Go ahead. That was a tangent. I'm sorry. Go.

Tim Kowal  11:04
Yeah, that that raises a good point. But here's what the here's what the appellant tried to get into a settled statement in the recent unpublished case of RM versus JJ out of the Third District. This was a an April 2022 case, the appellant there had a pretty solid issue on appeal. She argued that her ex husband had made frequent angry, angry outbursts and hostile gesticulations. Throughout the day long hearing, the mother thought that this display of her ex husband's rather obvious need of anger management confirmed that giving him custody of a young child was not in the child's best interest. But the trial court refused to consider the ex husband's outbursts at trial and the appellant thought I'm gonna get this reversed because you you refuse to consider probative evidence at trial and making this discretionary ruling. That can be an abuse of discretion all by itself. And the Court of Appeal basically said, I don't see any outbursts in the record. So we can't consider this issue because there's no record of these suppose it outright outburst, the order was affirmed. Because what happened is that on appeal, you have to show the Court of Appeal what happened during the trial court proceedings. And normally you will get a court reporter the appellant didn't have a court reporter here, whether because it was expensive or some other reason. And so the appellant tried to use the settled statement process. But the the settled statement itself became a heavily litigated affair and resulted in a version that was expurgated of all the matters relating to these outbursts, which the mother had wanted to raise in the appeal. So she got the worst of both worlds, you wound up spending more money litigating over the settled statement. And and also she didn't get in any of the evidence of the of the outbursts that she wanted the court of appeals to consider. Yeah, it's

Jeff Lewis  12:44

interesting, because I think in an earlier episode that we taped, I bought you for suggesting that either either a trial court or an appellate court would ever be interested in eye rolling, hand waving or other gesticulating, but I guess

Tim Kowal  12:56
I was wrong. Yeah, well, we, we can't know if it was going to if it was going to get anywhere because it didn't make it into the the mother filed a writ petition to try to get it into the record arguing that the trial court abused its discretion by refusing to settle the statement that was proposed that was denied. And then on appeal when she raised the issue, again, the Court of Appeal said, Well, maybe but you you cite, you didn't cite to your proposed settled statement. Instead, you use cited to your declaration in support of your settled statement. And that's not good enough. And I know of no rule that says that you have to cite to one and not the other. But it left me with the upshot that if you want a settled statement, basically you have no right to it. It's in the rules. But the court of appeals, the trial court doesn't like given them and the Court of Appeal has no inclination in enforcing or forcing the court of the trial court to give you one. Yeah.

Jeff Lewis  13:46
Get a court reporter. All right. I want to talk next about a case that's now pending before the California Supreme Court oral argument scheduled for next week and late May. And the case is sarova vs Sony Music involves the intersection of anti slap law class actions and First Amendment work. And let me just set the table for some of our listeners. You know, California law has declared this certain lawsuits that arise from either free speech or government petitioning activity, which have no evidentiary or legal value are considered slap lawsuits. Those are strategic lawsuits against public participation. And California's anti slap law provides that any defendant sued as a result of free speech, speech or government petitioning activity to bring a motion to dismiss the case at the very beginning of the lawsuit. If a plaintiff can't prove up that the case has merit with evidence cases dismissed. This is known as an anti slap motion. And the first issue whether a lawsuit arises from protected activities. Notice the problem, one question, and the second issue, whether the plaintiff can provide evidence that the case has a minimal merit. That's known as prong two. And that brings us to this case involving Sony Music. So this is a case it's been to the California Supreme Court twice the second visit and after Michael Jackson's death An album of Jackson songs or songs that were reported to be sung by Michael Jackson was published after his death. There was controversy about whether the songs were actually sung by Jackson in a lawsuit was filed under the California unfair competition laws and Consumer Legal Remedies Act against Sony Music and others responsible for publishing the album. Sony filed an anti slap motion arguing that as to promote one statements made about the album or protected activity and as the prompt to the statements were not commercial and then not reachable reachable under the unfair competition law. So the procedural history of this case is a mess. And you'd have to draw a diagram to really diagram out all the issues but two decisions by the California Court of Appeal and two petitions for review granted the California Supreme Court, and most recently, the Supreme Court said it's going to address whether statements made about a creative product, including music on the packaging, and advertisements constitute an issue of public interest under prong one. The second the Supreme Court is going to consider whether representations made about a creative product can constitute commercial speech or non commercial speech whether or not it's actionable under California's unfair competition law or Consumer Legal Remedies Act. I get to this case caught my eye because of well, two trips up to the Supreme Court, I always find interesting, and also cases that are at the edge of anti slap protection in this case, certainly is a very close one. You know, the Sony defendants in one brief, argued that allowing the case to survive an anti slap motion proceed to trial with, quote, chill or ticks artistic expression to its core. And I'm always concerned about case law that has the potential to narrow the application of the anti slap law. On the other hand, I don't think the legislature had big businesses like Sony Music in mind when they imagine enacting the anti slap law to protect helpless defendants. And I wonder if this case with two trips to the Supreme Court and two decisions by the Court of Appeal might be best, best described as a smack strategic motion against credible claims this case concerning an album released in 2010, which has been ping pong, back and forth in the courts of appeal for years. I watch it closely. And I'll be listening closely with oral arguments on May 24. And maybe we'll talk about the decision in a future episode. And we'll have links to the case and the some of the really excellent briefing in AR in our show notes.

Tim Kowal  17:22
You see any indication in any of the cases, Jeff, whether the courts treat litigants differently, who raised the anti the protections of the anti slap statute who are well heeled versus those who raise the protections who are who are the poor, put upon defendants? No, were intended by the legislature.

Jeff Lewis  17:40
I haven't, both in personal experience in cases I've litigated. And just by observation of cases I've read I have not I have not seen that.

Tim Kowal  17:48
Well, I guess that's a good thing. I mean, that's what the law is meant to do. Right. The rich in the in the poor are supposed to get the same result.

Jeff Lewis  17:56
Yeah, yeah. Although if the idea of the anti slap law is to prevent big companies from or big entities are well to do plaintiffs from silencing critics or silencing chilling petitioning activity, I think inherent in that idea is that there's an inequitable finances between the plaintiff and the defendant. In here where you have presumably, plaintiff of modest mean, like it's a big corporation that runs counter to what I suspect was the legislature's intentions, but we'll see how the case turns out

Tim Kowal  18:26
well, do you want to hazard a prediction about how this one comes down?

Jeff Lewis  18:29
i It is my prediction that under prong A it will be considered with the anti slap law. And under prong two, all the communications on the album cover and the videos were all non commercial in nature and not actionable. And under prong two, Sony wins. That's my prediction. All right. But do me favor hold this recording until after all argument is done. All right. Next, I want to talk about one other case that came down yesterday, we've been talking a bit about some cases that you brought to my attention about witnesses, observing witnesses with masks on and not having masks on and whether that can impact confrontation, rights and the ability to assess the credibility of a witness. This next case involves a Ninth Circuit case regarding the conduct of criminal trials during the height of the pandemic in US versus Allen, there was a criminal conviction and the district court in Northern California closed a criminal courtroom to members of the public. And that's not a big surprise that happened in courtrooms across the country, but also only allowed members of the public to listen to an audio stream, but not a video string. So I remember one of the public wanting to watch or observe this criminal trial. The only way they could do it is by listening and audio stream. And the trial counsel made an objection that this violated the Sixth Amendment rights to a public trial. And they went out the defendant appealed to the ninth circuit and the Ninth Circuit has held that the district court's order was not narrowly tailored. Third, because courts throughout the country facing the same need balance public health issues that can defend its public rights trial, other courts developed COVID protocols that allowed for video observation. And the court went on to say that video observation of a trial as opposed to just audio observation of a trial is qualitatively different terms of the proceedings to the conviction was vacated and a new trial was ordered. I interviewed him one more time.

Tim Kowal  20:26
Sorry about that. Did the opinion still say why the court decided not to stream the video and only to stream the audio?

Jeff Lewis  20:35
Now, only that it was meaning out of step from other courts, but didn't really have a justification?

Tim Kowal  20:40
Yeah. And did the court I'm actually not aware of the policy reasons. Obviously, I know that, that there's a constitutional requirement to the to the public trial, but what is the what's the historical justification in need for having the public trial? And why was it not served well enough by an audio stream? Well,

Jeff Lewis  20:58
I think about it with a video stream. You can look at witnesses, you can look at a judge, you can look at a defendant and through facial expressions, better assess credibility and get a better sense of what's happening in the courtroom, as opposed to just hearing words. It's different. You can radio on TV.

Tim Kowal  21:14
Yeah, I agree with that outcome. I'm surprised that the court that the trial court was resistant to the video stream.

Jeff Lewis  21:23
Yeah, me too. Hey, Oh, one other thing I want to bring up to our audience. You know, an earlier episode we talked about a lawsuit filed by the LA and San Francisco DBAs office jointly won lawsuit against the potter and the law firm. And you know, Palmer Handy was accused of clogging the courts with frivolous ADA lawsuits, and a newspaper up in San Mateo open link to the newspaper article in our in our show notes. This newspaper up in San Mateo did a examination of the stats that for the year 2021. Potter handy file 2076 EDA lawsuit in the United States District Court for the Northern District. And this accounted for 85% of all ADA lawsuits filed in that district for that year, and 23% of all filings of any type in the Northern District. And it's that's a remarkable stat especially it's a San Diego law firm after the DA is filed their joint lawsuit of the newspaper did a study and found that Potter handy filed three ATA lawsuit after the filing of this lawsuit. So I wonder if other ADEA filings not by just this firm but by other firms have dropped in this and other districts have been shocked to see the volume of these cases. Drop.

Tim Kowal  22:35
That's That's a staggering number 2076 lawsuits that if you're filing if you're if you're filing lawsuits that represent nearly a quarter of all of the filing seen in that court that's making that would be making myself rather more conspicuous than I'd be comfortable with.

Jeff Lewis  22:51
Yeah, I guess the only surprising thing about this joint la San Francisco da lawsuit is why didn't happen sooner given that volume?

Tim Kowal  22:59
Yeah. But yeah, that is it's very, that is interesting to think that the stark downtick and the number of their filings Yeah, I think the DEA is out to be looking at themselves saying, and we've already done a public one other

Jeff Lewis  23:10
case I want to talk about a case ruling came down on last week in the Superior Court, but sure I expect it to go up to the Court of Appeal a California it was the one of the first states in the country to enact a law requiring corporations that are Hort headquartered in California, to have a minimum number of female members of the Board of Directors, the law was known as Senate Bill, two, six. And I say it was known as Senate Bill eight to six because last week, the law was struck down on equal protection grounds by an LA Superior Court Judge. And so it'd be interesting to see how how that proceeds up the Court of Appeal maybe to the California Supreme Court and see if somebody steps in to try to defend that law.

Tim Kowal  23:49
Yep. Yeah. And we have a, I think we don't do one more announcement, or can I make the final announcement?

Jeff Lewis  23:57
I'll do one, one more. And that is, you know, we're very familiar as appellate lawyers with amicus briefs, and this usually occurs when a case when a courts considering whether to accept discretionary review of a matter or in the Court of Appeal, regarding cases that will definitely be decided, with the leaked draft brief in the Roe v. Wade matter before the United States Supreme Court. It's the first time I've ever seen this. And I learned about it from the Howard bashment how appealing blog an amicus party has sought leave to file a late elite brief attacking the draft opinion that was Lee, kind of a first it's the first in terms of the leak and it's the first in terms of a post amicus brief looking to attack it a draft opinion. It's kind of an interesting issue, and I suspect many more any more briefs will follow.

Tim Kowal  24:44
Yeah. Well, yeah, I think the we've seen some fallout from that leak and the fallout will continue, I'm afraid. All right. Well, our final announcement today, one of our CO hosts who is not myself, is celebrating a birthday today, Jeff Lewis we We all want to ask him his age, but we're recording this on May 17 2022. It's Jeff Lewis's birthday. And I know that because I can see the sign in his office and in the Zoom screen there that says it is your birthday. And in true appellate fashion, there is no overhype. It's, there's there's no exclamation mark after that it is your birthday period. Nice stuff do we don't need to needless adjectives or punctuation?

Jeff Lewis  25:24
Yes, it's very, very cleaned up and short. Well, I think that I appreciate the birthday wish. And that wraps up this episode. And again, we want to thank keys text for sponsoring the podcast and each week we will include links to the cases we discussed using case texts, and listeners of the podcast can find a 25% discount if they sign up for case texts at case That's case LP,

Tim Kowal  25:50 
and we always welcome suggestions for topics or guests from our listeners, please email us at info at cow And we'll be back next time with more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  26:05
All right, see you next time.

Announcer  26:06
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 Cao That's ca l Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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