Need to catch up on important cases you missed in 2022? This end-of-year episode has you covered. Here’s the list:
Brooke Bove joined us to discuss her winning new trial motion.
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 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
And I'm Tim Kowal. California appellate law podcast is a resource for trial and appellate attorneys. Both Jeff and I are appellate specialists, but we split our time about evenly between trial and appellate courts. And in each episode, we tried to provide some news and perspectives that our trial attorney and appellate attorney audience can use in their practices.
Jeff Lewis 0:35
And quick announcement. Our podcast is sponsored by the folks at casetext. Casetext a legal research tool that harnesses AI and a lightning fast interface helpful your spine case authority fast. I've been a subscriber since 2019. And I highly endorse the service and listeners of our podcast will receive a 25% lifetime discount available to them if they sign up at casetext.com/CALP. That's casetext.com/calp.
Tim Kowal 0:59
All right, Jeff, it's we're nearing the end of 2022. We thought we would compare notes on what cases and legal news stories struck us as maybe the most significant of the year. Most significant that is to generalist trial and appellate attorneys such as ourselves and our audience were not our criteria does not include significant substantive developments in the law that's beyond our pay grade. So we're looking back on 2022. Now with the hindsight of a statewide court reporter shortage, the changing of the guard and the top judicial seat in the state, which we discussed with David editor in Episode 53, and a number of vacancies waiting to be filled on the Superior Court and the appellate court benches that was covered in Episode 38, not delays in the third district. And we're now watching new judges and justices begin to decide cases. This reminds us of the importance of the continuity and legal training. And that brings us to the legal news and 2022 about law schools beginning to drop standardized testing and ranking criteria. We wanted to talk about some of the interesting cases that we covered on this podcast and beyond. I thought we would we kind of book in Jeff want to break in here?
Jeff Lewis 2:01
Well, I'm just gonna say for people who may not have heard all our episodes from the beginning, I know some people have only recently started listening. A lot of these cases we're about to discuss will reference earlier episodes. It'd be a nice index if you were to go back and catch any cases you missed.
Tim Kowal 2:14
Yeah, that's right. So we will reference what episode we discuss the cases in so log into ca l podcast.com. And you can reference the back catalogue there. I thought we'd start with i My vote is for the most important case for money litigators. Anyway, those of us business litigators who are fighting over money that business litigators need to know about the Civil theft remedies under Penal Code Section 496. And, Jeff, there had been some cases going back and forth on whether you can bring civil actions for under that penal code section. There are some cases that said yes, in some cases that said no. And we had waited in the Supreme Court for ruling on that and we got it this year in Serie investment LP vs to see if I can pronounce his name again Farrakhan to poor that was July 2022. case out of these out of the Supreme Court that held that you may still bring civil fraud actions under Penal Code Section 496. The court does provide some limits to it because they do not want you turning every garden variety business tort case into penal code for 96 case, but it does carry the benefit of treble damages plus attorneys fees. So if it does fit, in your case, business litigators need to have the Siri investment case in their back pocket. All right, let's go to some other top cases of 2022. Here's a list that I started some of my picks, Jeff, but you jump in if some of these cases are among your favorites as well start with a briefing tip. This is out of sync men versus imdb.com. This is this stands for the proposition that if you fail to bookmark or rather if you fail to cite to legal citations in legal propositions in your brief, those legal propositions will be ignored. I believe that's only going to apply to appellants, legal propositions. Respondents legal propositions usually are given the benefit of the doubt or at least the benefit of some additional research by the courts, research attorneys. But if you're the appellant and you don't cite to legal proposition, it will be ignored. We discussed this in Episode 23.
Jeff Lewis 4:09
And a secondary point from this case, if you're thinking about representing yourself and in case you've lost take a look at this case, the improper appellant didn't do so well.
Tim Kowal 4:17
Right. All right. Another case on dismissed appeals we covered Alexei and Ani LLC versus Warren in Episode 23, in which the case allowed an attorney allowing an attorney sanctions appeal to proceed even though the attorney was not listed on the notice of appeal. I thought this was interesting, Jeff, because I had previously gotten appeals dismissed on this very ground. This decision was unpublished, but it is instructive that courts may be looking to excuse appellants who fail to include the proper attorney appellant in the Notice of Appeal, so check out episode 23 For more on Alexei and Ani versus Warren. A couple appeals concerning court reporters Why shatel versus vo involved in dissent over whether a court reporter is really needed at oral argument on a motion to compel arbitration. The majority said it was a question of law. So the lack of a reporters transcript was not fatal to the appeal. But the dissent said that in close questions like this, a court should assume that something might have been said on the record that would have supported affirming. So that's something to be aware of. If you're in doubt whether you should bring a court reporter to a hearing, you probably should bring the court reporter. And again, noting as we said at the top of the episode, there is a court reporter shortage. So make sure you're sending lavish gift baskets to your court reporter vendors holiday season, we covered why shatel In episode 23. And we also covered our M vs. JJ on the question of if you don't have a reporter's transcript, Jeff, there are still provisions in the rules that allow for other forms of creating an oral record like the settled statement, but RM vs. JJ teachers don't even bother. You might not even bother with the settled statement, because the trial court has wide latitude of what not to include. And I've yet to see any limits to this latitude. I put an article on this. So we'll put that in the show notes. We discussed RM vs. JJ in Episode 40. We discussed a couple of criminal cases one of them had to do with let's see this was at a United States versus Olson The question was can the Sixth Amendment right to speedy trial be indefinitely postponed due to COVID? The answer was yes. If the defendant is not incarcerated, that was the Ninth Circuit decision. We've covered that in episode 25. On a related note, we also covered the right to a jury trial can the statutory right to a timely conservatorship jury trial be waived? The answer is yes. Even if the judge kind of pushes you around. So stiffen up that spine we discussed conservatorship of Joanne are in Episode 25. In that case, the Court affirmed the waiver of the right to a speedy jury trial that challenged 12 month conservatorship even though the trial court would not provide a jury until the ninth month,
Jeff Lewis 7:01
we also discussed that a jury trial can't be waived merely for failing to comply with local rules. I know down in Orange County where you and I have some matters bending they have rules regarding assembling a binder and meeting and conferring with counsel regarding joint documents, non compliance with these local rules cannot form the basis binding of a jury waiver. That was the amount of Moto V downs case from May of 2022.
Tim Kowal 7:25
Right and let's keep on a similar vein here right to there's cases dealing with the right to in person appearances, people versus Whitmore held that there was no right to an impersonal appearance it held that limiting a defendant to a virtual appearance, even though it was legally improper, created no harm. So it basically the appellant was not able to get over the prejudicial error, or hurdle. It sounds like we've discussed people versus Whitmore in Episode 34. And then Whitney, if you want to talk about zoom trials are they are
Jeff Lewis 7:57
not as as of the recording of this podcast in December of 2022. Zoom trials are no substitute for real trials. Not unless California legislature says so before July 1 2023. To met a great write up of the rice be super superior court case. And we discussed that in episode 55.
Tim Kowal 8:15
That is a space to watch in the first part of 2023. Whether the California Legislature extends the virtual trial statute and allows virtual trials to continue in place of live trials after July 1 2023. We have to go back to the presumption of the old normal, not the new normal.
Jeff Lewis 8:33
Right, right. And we also had Eric Kingsley on the podcast in Episode 49, discussing the US Supreme Court's holding in Viking river cruises, versus Marianna, and he talked about the future of paga claims. And I think I might need to go back and listen to that two or three times to really understand what he was saying. But if your practice involves pilot claims, it's a must listen to episode.
Tim Kowal 8:54
I have to say that that subject is very dense going but I thought Eric did did a great job in laying it all out. Another important arbitration related opinion was cloche versus California Commerce Club. I think it is that held that the right to arbitrate is not waived. Even after happily litigating for 13 months, the court found that the only prejudice shown was litigation costs and that is not enough to show prejudice. So the right to arbitration was held not waived and rehearing was granted and the opinion was partially published after publication requests from yours truly. Alright, Jeff, there were a few anti slap cases that we cover this being your bailiwick. I'm gonna let you have first crack which one you thought the most important? Choose wisely? Well,
Jeff Lewis 9:40
we had predicted earlier in the year that anti slap denials may not be appealable for much longer than I circuit based on some dissents. But I have to say, that has not come to fruition. I haven't actually seen the Ninth Circuit beginning moves to take on cases and re examine this issue. And so for the time being anti slap denials are appealable But we've covered that in episode 38.
Tim Kowal 10:01
Yeah, yeah. But they're appealable as collateral orders. So they go about it a different way, because they don't have they don't have the Code of Civil Procedure for 25 point 16 That or nine oh 4.1 That makes them appealable by statute. So they're appealable under the collateral order doctrine and judge breasts disagreed that they should be treated as collateral orders, but like you said, we haven't seen any more movement on that space.
Jeff Lewis 10:24
And then you actually got published in a legitimate publication for the proposition that anti sleep slap fee awards might be stayed on appeal. I of course vigorously disagree with that proposition but but congrats on the on the write up guy.
Tim Kowal 10:38
Wait Your sternly worded letter to the editor Jeff.
Jeff Lewis 10:42
Consider this podcast that letter?
Tim Kowal 10:44
Yeah, we've we've revisited that issue. That's an important issue to keep in mind. And it's one of those where there are two published cases on either side of the coin. So whatever position you find yourself in, there is a published decision to cite and under auto equity sales, you may the trial court may select either one that it feels more persuasive. So the Dalling versus Zimmerman is the case that Jeff likes to cite for the proposition that slap fee awards are special, they're super special and they're not stayed on appeal and coils vs. parent is the fourth district more recent case, better reason to case that holds that they are costs like any other costs, and they are automatically stayed on appeal. But either way you find yourself you have a published decision to cite we discussed that dichotomy in Episode 41. Yep, yep.
Jeff Lewis 11:30
And we discussed in Episode 47, that spending money on litigation is not protected activity within the meaning of the anti slap law. HIPAA case is really simply about the misappropriation of the money. And that was the Manland V. Milner case from August 2022 that initially was unpublished and then Tim put in a publication request and got it published.
Tim Kowal 11:51
But you co signed
Jeff Lewis 11:53
it. Yeah, it's probably I'm partly to blame. And we also covered in Episode 47, that opposing an anti slap motion outside the 60 day window is possible, but this case, Ray SV Escobar laid out the factors that have to be weighed by a court when you want to go outside that 60 day window. Let's shift gears and talk about Ms. Jays. Anytime a defendant is moving for summary judgment, they will frequently rely on the Union Bank case that discusses factually the void government sponsors to meet their initial burden and shift the burden to the plaintiff in a companion case, now I feel the US Bank, evasive discovery responses that are factual yet evasive, can similarly be used to shift the burden in an MSJ and that we've covered that in episode 42. Yeah, I
Tim Kowal 12:40
think those are always great procedural tips to be aware of for MSJ is another one on MSJ appeals. I know a lot of practitioners were watching the space after the read versus Google decision. The Supreme Court I think that was back in 2010. That cracked the door open and suggested that evidentiary rulings on in the MSJ context may be reviewed for on de novo basis rather than the more deferential abuse of discretion. But most District Courts of Appeal had said now we're going to continue reviewing them for abuse of discretion discretion. And the fourth district Third Division joined that chorus and said, No, we're going to we're just a ream of evidentiary objections lodged by the opposing party and court decided we don't want to have to read and review all that we're going to review it for that we're going to assume that the court did not abuse its discretion. And that decision is now published as well as a result of yours Julie's request for public publication. On the topic of expert witnesses be covered Durham cup Klein versus Zimmer. This was one of the many lawsuits filed by hip replacement patients against the maker of the Durham Cup The case is Klein versus Zimmer in a case out of May 2022. Out of the second district, the Court held that the trial court had committed structural error when it improperly excluded Zimmer's expert to rebut the plaintiff's expert. This was surprising because normally trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic dismissal. This was discussed in Episode 38. All right, let's talk about topics that make your head hurt Jeff mootness doctrine of mootness I hate the torture news, because it seems to me so unevenly applied, if you're the respondent, you can't count on the doctrine of music mootness to reliably win a motion to dismiss because mootness is a discretionary doctrine. But if you're counsel for the appellant, you have to lie awake at night imagining the ways that an ongoing litigation might moot your appeal and get it dismissed.
Jeff Lewis 14:42
And if you're an appellate justice that wants to avoid deciding an issue on the merits, you can certainly use the witness doctrine when suitable
Tim Kowal 14:49
that yeah, it is for any purpose that can be convenient to the court it can be applied or disregarded almost at will do we covered art work studio and classroom versus Leonean. This was a case in which the underlying lawsuit was not stayed. It resulted in the appeal becoming moot. We talked about the artwork studio case in Episode 31. We covered another case, ask the question, can you dismiss your lawsuit while it's on appeal? The answer is no. Under curtain maritime court vs. Pacific dredge and construction, we covered that on episode 31. Now, Jeff, I'll let you cover rock V Newsom, because I know you have an update on that case as well.
Jeff Lewis 15:29
Well, yeah, we'll each keep up with our separate lists of top cases of the year and this is one of my wants. It's on my list, Brock V. Newsom. This was a lawsuit that was filed by a school board member in my neighborhood pals Verdi's and attacked Governor Newsom measures in response to COVID-19. The District Court did something really unusual it granted summary judgment sua sponte dismissed the case, the Ninth Circuit affirmed, but mostly affirmed, I think, on the grounds of mootness, saying this really wasn't an open issue anymore. Given the schools reopened by the time the Ninth Circuit heard the two updates on the cases. First, Matthew Brock has sought reply the United States Supreme Court on whether it's truly moot or should be heard on its merits, and California filed a we're not going to really respond to this petition for certiorari response, and the Supreme Court said California we want to hear from you. So there's now a December 20 deadline for California to respond petition for certiorari, that's one update. And then second update is Matthew Brack is now a former member of the PV school board in losing his bid for re election.
Tim Kowal 16:26
Okay, great update. All right. And here's the final case in the subject of mootness. Here's the prompt. Jeff, have you ever had an appeal dismissed, it hurts Of course, it always hurts when you have an appeal dismissed. But there may be a silver lining. If the underlying if your appeal is dismissed, the underlying judgment may no longer have any preclusive value. And that's what happened in the published decision in park furred owners for a better community versus window showers. And I believe that the appeal in that case was dismissed on mootness grounds and the holding the outcome was that the judgment, the judgment underlying the appeal that had been dismissed as moot, was no longer had any preclusive value. And I thought, what kind of mischief there'd be no end to the kind of mischief that you could request that you just take up the appeal and then have it dismissed for failing to designate the record timely or for any other reasons. And then you sap the preclusive value. I just thought that was enormously surprising result. And
Jeff Lewis 17:19
every lawyer practicing as sequined needs to read that case, it's very counterintuitive.
Tim Kowal 17:24
Yes. We discussed Hartford owners versus winter showers in in Episode 52. All right, we covered some cases dealing with judgment collection. I think this was one of the more under understudied areas of the law, Jeff, and so we brought on a specialist in Episode 46, Joseph chore and we talked about all sorts of sneaky tips and traps in the judgment collection collection
Jeff Lewis 17:46
area. If you ever wanted to know when and how and under what circumstances you can seize a debtors pet in response to collecting on judgment. That episode answers that question.
Tim Kowal 17:56
That's right. Okay, we covered Sylvester versus Nick Parco. In June of 22. That was an unpublished decision. But the case held case involved a plaintiff and defendant who had agreed to use a general verdict form in exchange for a stipulation to limit judgment enforcement to insurance and indemnity. And I picked that case, I just was really surprised that you could do that you could limit your rights to judgment enforcement in exchange for horse trading on verdict forms. We discussed the Sylvester versus reparto case and episode 46. And then, more recently, we discussed wv 23 jumpstart versus my NAR sec. That was a case that held that personal jurisdiction is unnecessary to issue a judgment on an out of state judgment. So basically, if the case involved in a Nevada judgment against a series of judgment, debtors, the plaintiff decided I'm going to domesticate the judgment in California, even though it had no contacts with any of with the defendants. And then when the Nevada judgment expired, the plaintiff went and read domesticated the domesticated California judgment back to the original form in Nevada. And at that point, the debtor was jumping up and down and saying, What are you doing that this is now based on a judgment under which I had no personal, you know, no minimum contacts, there's no personal jurisdiction, the court said now that's okay. And so my two upshots from this case, that now I've been pushing on, anyone who will listen, is that if you have a judgment, then you might as well go in, domesticate it in a stay fresh jurisdiction like Delaware in which jurisdiction in which judgments never expire, go ahead and park your judgment in Delaware that way, in case you forget to renew your judgment, it will stay fresh in Delaware. And then also why not park it in a high yield jurisdiction like Rhode Island or Massachusetts, which gives 12% Post judgment interest, hey, why not let it let it rack up extra interest while you're waiting to find assets. And then once you find them, read them as domesticated wherever the assets are, and then you're off to the races. Right, so that was the wv 23 jumpstart case. We discussed that in episode 62. Or let's talk about sanctions as to trial. court sanctions. We covered a case everyone knows about the 21 day Safe Harbor. If you want to seek sanctions under one, CCP 120 8.5 Or one 20.7, you have to file a nice letter and attach a copy of the motion that you're planning to file and then wait 21 days this plaintiff or this moving party waited and filed on the 21st day. But finally on the 21st day is not waiting 21 days, it's only waiting 20 days and so jurisdictionally it had to be invalid. So that was the trans con financial versus redone. Hell your case. We discussed that in episode 58. And even though it wasn't in one of my asides on that cases, the court didn't get to the prejudicial error prong didn't say why the one day would have mattered. Right, right. All right. You want to discuss these, one of these cases on appellate sanctions? Jeff, I think you had covered one of these for us before.
Jeff Lewis 20:49
Yeah. So there's hayver versus JP Morgan Chase Bank case from July 2022. in which to in which the court advise the attorney think twice about clogging the docket, and we also covered up the pop top court versus Rakuten Kobo Inc. Case from July 14. Those are both covered in Episode 45, in which the dissenter just the majority had imposed over 100 grand and sanctions merely for filing a weak case, as does that warrant, the right of appellate review applies to even weak cases. Interesting reading for anybody who's seeking or opposing sanctions.
Tim Kowal 21:23
Yeah, I haven't looked. I haven't watched this space for a long enough period of time, Jeff, but maybe you have did it seem to you that there were more appellate sanctions awarded in 2022 than prior years?
Jeff Lewis 21:35
Certainly, I noticed them more. Yeah, I see them more. And also in my practice, I've seen them more and more.
Tim Kowal 21:41
Yeah, I thought this was this case, top top Corp versus Rakuten was presented interesting both sides of the coin, it showed majority who was kind of fed up with these with what it deemed to be frivolous or meritless appeals and then arguing for the other side of the equation, the dissent saying, Look, I'll grant you as a weak case, but weak is not the same as frivolous and $7,000. And sanctions for just a case that you find to be to lack merit or to be weak is chills due process rights to the right to appeal. We talk about motions for reconsideration. You know, we've talked about the fact that motions for reconsideration filed after a judgement are a moot point because once a judgment is filed, the matter is final. And your remedy now is an appeal or one of the other statutory remedies like a new trial motion or motion to vacate. There's no trial court no longer has jurisdiction to reconsider a judgment under its own inherent authority or even 1008. But we also talked about a couple of cases involving I remember the other the cases we talked about whether Okay, so compare these two cases banks versus master Arcos. This was a second district case that awarded $960 and sanctions against the plaintiff for bringing a frivolous motion for reconsideration. Basically, there was no new fact or law. So what do you do, and this is just wasting our time, you can't just reconsider an opinion, just decision just because you don't like it. I mean, compare that with brown Winfield and Kansas Cerrone versus Superior Court. This is a 2010 case. But it held that, quote, it should not matter whether the judge had an unprovoked flash of understanding in the middle of the night or acts in response to a party suggestion, which suggests that even if you are filing a motion for reconsideration, not because of any facts, new facts or law, just because you think that the judge, you know, maybe didn't weigh the factors correctly, should have should have granted my motion. And even if it's beyond the 10 day period, then there's no reason that the judge can't act on it in its inherent discretion. So those are two cases to bookmark on either side of the equation that yes, the judge can consider your motion for reconsideration and even act on it or the judge could sanction you for
Jeff Lewis 23:43
it. Right. Right.
Tim Kowal 23:47
Let's move on to payments of decision we talked about a couple of cases dealing with statements of decision this is a very important appellate procedure point. You ever talked to an appellate attorney get ready for a long discussion on statements of decision failure to request a statement of decision changed the outcome of the appeal in marriage of burger we discussed this in Episode 52. So even though the trial judge had issued a written decision, the appellant lost her appeal because she failed to request a statement of decision statement of decisions not just the same thing as the judge giving its thoughts on the record. Even writing a minute order containing those thoughts. A statement of decision is a different statutory animal. And even though the appellant had a statutory right to findings, she still had to formally request the statement of decision. But I noted that this reasoning appeared to contradict a similar circumstance in another 2022 published opinion in Abdelkader versus Abraham, when we discussed that in Episode 52, where there was a statutory right to findings in in a custody circumstance. And just because you fail to request the statement of decision does not abrogate your pre your independently existing statutory right to findings. So it's important I think either way you find yourself doesn't hurt to read request that statement of decision.
Jeff Lewis 25:02
No appeal was ever lost for requesting a statement of decision too many times. That's right. And hey, Tim, have you started adding under penalty of perjury, perjury signature line to all the memo of costs? You've been filing and your trial victories?
Tim Kowal 25:16
That's my suggestion after this case that we discuss Arabian versus triangle trucks. Senator, I haven't filed one yet. But what's your plan? Jeff, are you gonna start adding them?
Jeff Lewis 25:25
If I remember? Sure? Yeah. You bet. Ya know what November I rambled cos was ever rejected for the inclusion of perjury language on
Tim Kowal 25:33
it. Yeah, we covered this in in Episode 52. There was a dissenting justice notes that there is a fatal error in the judicial council cost memorandum form. So Rules of Court, the dissenting justice noted require that a cost memorandum be signed under penalty of perjury and Judicial Council form for appellate costs does contain that penalty of perjury statement, but it's not contained in the what is the MC forget Oh window or whatever it is the memo of cost form for for cost after trial. It's not contained there. So there was a big colloquy in that decision about whether prevailing party was entitled to costs because there was no, it was not it was not supported by an evidentiary showing. You if you want to do I'll cover the Trujillo case.
Jeff Lewis 26:18
Sure. That was the case of the odd result where a 998 offer which by statute is open 90 Day excuse me open for 30 days. The appellate court held it was cut off when trial court orally announced ruling on a summary judgment motion within those 30 days. So the Pei lawyer here had lost a summary judgment motion, at least verbally on the record had run back to his office sent an email saying I accept the 998 offer. That acceptance was held to be invalid. A very curious result and I just checked before we recorded this episode, and I noticed the losing party in that case, although they filed an unsuccessful petition for rehearing, they have not filed a petition for review and time to do so has expired. It looks like Trujillo is final opinion.
Tim Kowal 27:02
Yeah. And the other interesting thing about Trujillo is that it takes the complete opposite tack as the federal courts on this question under its substantively identical rule under FRCP 68. It's to the offer remains open for I believe it's 21 days under Rule 68. Even if there's been a ruling on a summary judgment motion that would seemingly render the offer futile or moot or otherwise stupid. It's still open under that statute. But California courts did not choose to go that route.
Jeff Lewis 27:34
There's no reason that Trujillo couldn't be applied in the context of dimmers or slabs or other dispositive motions when there's a nine nine offer made and within the 30 days that dispositive motion is verbally granted under trio those nine nine offers the ability to accept them could be cut off.
Tim Kowal 27:50
Yeah, that's right. One of the other oddities we pointed out is that the rule under Trujillo that's specific holding is that the the 998 offer is deemed to expire when the judge issues oral ruling on the MSJ. But what happens when the judge issues a tentative ruling on an MSJ? Then you could still accept the offer? Yeah,
Jeff Lewis 28:08
yeah. All right, Tim, now buckle up here. Here's my list that I came up with, with the seven biggest either stories or cases not necessarily covered on our podcast, the seven biggest stories that I think impact California lawyers in the past year or the year to come. Here we go with apologies to David Letterman. Number seven. Any pre litigation demand crossed the line into extortion and then failed to qualify for protection under Civil Code section 40 sevens litigation privilege? The answer is yes. If the attorney threatens to disclose the allegations to blow up the defendants potential merger, we've covered this in Episode 25. It's the case of Falcon brands eat versus Mousavi and Lee the great quote from that case, his lawyers argue for a living some do more than argue the least their settlement demands with threats. When does such activity cross the line to become professional misconduct? That is the fundamental question presented in this case. It's a great case for anyone who practices anti slap law, and it's another line for settlement demands. Right. Case number a thick is we covered this already Brack V Newsom, we gave that update case number five, or issue number five, the biggest story of the year is the court reporter shortage. You know, they just recently announced they're not going to have them in LA for Family Law probate restraining order courts. It's a growing problem regarding the appellate record. We're going to see more and more attempts to get settled statements. And I think the end of the story, perhaps as early as next year, is we're going to see legislation allowing recordings to be used in in lieu of court reporters and ultimately, AI generated transcripts, at least as a starting point for a transcript. I think that's the direction we're headed.
Tim Kowal 29:44
Yeah, yeah, that could be what do you think about this idea of Do you think that a lot of court reporters are getting snaffled up by private arbitration?
Jeff Lewis 29:52
You know, I don't think so because there's no data of suggest there's a increase in the combined demand for court reporters in terms of litigation and arbit tration The real problem is nobody wants to be a court reporter anymore. That's the problem and money throwing money at court reporters isn't solving the problem. The real problem is I've got technology that could fix the demand and just need the legislature to sign off on it. That's my two cents.
Tim Kowal 30:14
What is that professional just to remunerative and do flexible. The real issue
Jeff Lewis 30:20
is going to be the next year whether or not the reporters lobby will do anything to block legislation, legislative changes in Sacramento. It'll be interesting to see. Yep. All right. Number four on Jeff's list top issues of the year is the fall of Tom jority. Now my law school Loyola law school I used the Step Up Mock Trial courtroom, an entire building named after prom Gerardi and when I was in law school, I had friends that worked at that firm, so huge, prestigious, prestigious firm. And I was at school this year to give an anti slap M CLE lecture earlier this year, the building had been completely renamed, stripped of his name. And although it was late 2020 and early 2021, When news broke about Gerardi and a settlement funds being diverted, really the fallout didn't really start hitting the fan until this year. And just recently they discovered the former CFO for the firm, had a side fraud going on having nothing to do with Gerardi where the CFO is taking $10 million out of the firm and buying homes in the Bahamas. But the most significant part of the story isn't the misdeeds about Tom Gerardi or a CFO but how the State Bar looked away and disregarded numerous state bar complaints about him. The State Bar had received 205 complaints and 120 of those complaints in both client trust account matters. And about half of those complaints came out even before the public report reports about misdeeds about already came to light. And the LA Times recently reported that the same time that Tom jority was not being prosecuted, African American male attorneys had a higher rate of prosecution at the State Bar than white male attorneys. Interesting as and as a result of this mouth misconduct by jority. The State Bar has enacted new enhanced oversight and reporting requirements for California lawyers regarding trust accounts. Tim, I think every January now we have to sign new statements regarding our firm's trust account reporting and our ability in compliance with the rules. I think oversight trust accounts, it's really gonna be tightened in the years to come.
Tim Kowal 32:09
Well, I hate to see the reputation of the state bar being sullied by this this disparate impact. I wonder, what are they going to do? In response? Yeah,
Jeff Lewis 32:19
yeah. Well, I'm sure there'll be committees and commissions and reports. Yeah, I think for years, we'll be feeling this for years to come. Yeah. All right. Story number three on my list, National Pork Producers Council versus Ross. Now, Tim, it's not too often that state court appellate attorneys like you and me get an opportunity to discuss the Dormant Commerce Clause doctrine. I don't think those words have come out of my mouth since the 1990s when I was in law school, the Dormant Commerce Clause as a refresher legal doctrine that says states should not be able to pass laws that burden interstate commerce or discriminate against out of state businesses in subject matters where Congress has the power to regulate commerce, and the National Pork Producers Council case. The US Supreme Court has been asked to weigh in on California proposition 12, which is initiative that our state passed in 2018 impose conditions on how pigs and other animals are housed and cared for before they're slaughtered and sold in California for food. The law basically prohibits the sale pork in California if the pig was housed in a small cage. The case was argued in October of this year, and no opinions come out yet. repercussions in this case, we felt beyond food products will impact whether one state could pass laws that constrain the economics and policies of other states. One example that came up during oral argument over this case in the Supreme Court is that if Proposition 12, were allowed to stand, California could pass a law prohibiting the sale of pork, unless union labor was used in the process of slaughtering the pig. And at the same time at Texas legislature could pass a law prohibiting the sale of pork if union labor was used to slaughter the pig. And there could be a spillover to abortion rights, gun rights and other topics less divisive than how pigs are housed. I expect the Supreme Court will overturn Proposition 12. It'll be interesting to see what the court does.
Tim Kowal 34:05
Yeah, I have to say my gut reaction is that that would be an instance where I would like to see the Dormant Commerce Clause power use that would that would be a mess. That scenario your painting was Yeah, create a Federalist mess.
Jeff Lewis 34:16
Yeah. On both sides, it's just crazy. All right. Number two on my list, not a case. So much as it is a story about a defamation trial, Virginia, and the explosion of law tubers. It's the case of course Johnny Depp and Amber Heard for a few months. Everybody wanted to talk about topics such as actual malice, public figures and reckless disregard of the truth. Normally when I tell people at cocktail parties about the importance of requiring actual malice in a public figure defamation case, I'm usually met with blank stares. Occasionally people fall asleep. But this past year, everyone had an opinion one discuss Johnny Depp and Amber Heard. I have not seen this level of coverage and widespread interest since the OJ Simpson trial, the case launched a noose subspecies of social influence known as social influencers known as law, tubers, lawyers who sit on YouTube and explain the law on YouTube, and other social media, and I imagine this is an area of social media that will only only grow over time. Yep. Yep. All right, number one on my list. I know we try to stay away from politics and substance here on the show. We're mostly about procedure, but number one on my list has to be the Dobbs case. We're not going to get into the nitty gritty of the merits of the decision here, how it may have impacted the midterm elections. But the big story was the leak of the Dobbs decision, who did it and why still unknown how the Supreme Court reacted, how they investigated. So clerks how the leak came further erode trust in the High Court as an institution, the impact of jobs inside and outside the judicial system will be felt for years to come. For me, it's the number one biggest legal story of the year.
Tim Kowal 35:50
Yeah, yeah. It'll be interesting to to get one of those tell all books by someone at some insider in the court. Yeah. Yeah. Well, okay, let's circle back here to a couple of couple more stories that we covered on the podcast in 2022. These are a couple of cases or topics that I put under the subject of Tim's hobby horses. So one of my hobby horses or my soapbox, because I like to get on is about the no citation rule and unpublished decisions. Generally, we elevated this to a Full Episode and Episode 22 When we brought on guest, David Ed injure and Dean Bochner from the Horvitz and levy firm and I use the insight that they offered in their article about rule eight point 1115 In writing a request for publication in the dough versus software one opinion that we talked about earlier the case in which MSJ evidentiary rulings are deemed still to be discretionary. And it wasn't originally an unpublished case. But I took the insight that David and Dean made in their in their article from earlier this year that pointed out that under Rule point, limb 15 litigants are not allowed to cite and unpublished cases for any reason, including in petitions for review. And even though that's an accepted practice, it's still against the text of the statute. So I pointed that out in my request for publication that someone might like to raise your nice summation of the cases post read versus Google, but we wouldn't be able to under consistent with rule point eight point 1115. And that request was granted. So my other hobby horse is about the rule of jurisdiction concerning notices of appeal, what types of orders are appealable and the timeline to appeal, I wrote up a recent California Supreme Court decision and court of appeal cases that had forgiven untimely appeals. This was in re AR, this is a 2021 case. And in array b p a January 2022. Case and in 2021, the Supreme Court had issued a surprising opinion, the Court had held that an untimely appeal is not an absolute bar to appellate jurisdiction, at least in juvenile dependency cases. And the reason this seems surprising to me was that until that point, a uniformity of California cases had held that an untimely appeal was an absolute bar to appellate jurisdiction. But the court found I think, in that case, ineffective assistance of counsel provided a loophole to excuse the untimely appeal in that case, we also talked about in episode 42, the reed versus Aviva USA Corp case, an order granting summary judgment, although not normally appealable was held appealable in that case. So that's just one of those cases that we've talked about, Jeff, that, you know, it's not for nothing that otherwise non appealable cases or orders are sometimes deemed appealable. Because as an appellate attorney, when you look at this at a at a non appealable ruling, you tell the client no sit tight, don't appeal it. You can't appeal it. So just wait until the final judgment. But if but certain kinds of rulings, you have to put an asterisk next to it that well don't appeal it yet. But when you get today, you know, 5758 59 and if there still hasn't been a judgment, enter, give me a call. Maybe we'll have to take up a precautionary appeal anyway and see if the court wants to deem it appealable. Right. Let's see. And then we talked about that cynics have suggested that the jurisdictional deadline to file an appeal is quote only as jurisdictional as the courts want it to be that comes straight out of a Supreme Court dissenting opinion in Hollister convalescent hospital versus Rico. The Court recently recently acknowledged that this supposedly ironclad rule is in fact riddled with exceptions and the guard versus guard opinion from September 2020 to involve problems related to electronic filing. So if you have a problem filing a notice of appeal timely because of some snafu with the electronic filing system, you may be able to get your neck out of that news. So if you attempt to timely e file a notice of appeal, but something goes wrong. Here's what you do under the guards decision. First, you file the notice of appeal as soon as possible as soon thereafter as practicable as the Supreme Court puts it and at the same time. Second, file a motion in the Court of Appeal explaining what happened and showing good cause why the notice of appeal should be deemed filed as of the date of your timely attempt but don't wait 29 days is how long I think the appeal waited in the guard case, the Court held that that was not as soon as practicable through your appeal is still untimely. But that's an important case to bookmark in case everyone files these things by E filing these days and every now and then something goes wrong. All right, Jeff, that concludes my list. We've got some other topics we wanted to talk about. We amassed a lot of great legal writing and oral argument tips and other types of tip that we decided we're going to aggregate and put into standalone episode, we had some guests like Myron Moskovitz, we had MC Sungai lab, we had Ross Guberman, we had Ryan McCarl, just a lot of great Legal and General advocacy tips that I thought we would comprise into a single episode. Okay, and then should we do and then I'm going to go ahead and close with my vote for the top case of 2022. And, and maybe this I factor in that the soap opera value, and also the fact that Jeff, you and I kind of got a scoop in this case, but this is the victory bell case. This was the the case that involves the law firm social media cautionary tale. This was the case in which successful counsel had bragged about their defense in a medical malpractice case and describe the case as involving a guy that was probably negligently killed, but we kind of made it look like other people did it. And you know, Beckett, their law firm, they have a victory bell and they rang the victory bell while making that announcement, someone improvidently put that video clip and quote on the law firms website took it down promptly thereafter, but not soon enough for social media to make it viral. We had we were pleased to invite the attorney who wrote the successful motion for new trial. In that case Brooke Bove explained why her motion was successful. And it gives an inside scoop because a lot of commentators Jeff, if you recall, we're talking about oh, that out of you know, that's the judgment to be vacated. And a lot of attorneys especially good appellate attorneys would say that happened outside it's not a it's not a court irregularity. I don't see any grounds for a new trial. And I was among them. I didn't see any reason for a new trial. But after speaking with Brooke both, I understand it now. So take a listen to episode 57.
Jeff Lewis 41:59
Well, it's got my vote as the top yet are our podcast of interesting cases of people involved in cases on our on our podcast.
Tim Kowal 42:06
That's right. That's right. All right. Well, I think this is gonna be our next to last episode of 2022. We want to wish everyone merry Christmas, happy Hanukkah, happy holidays, happy Festivus whatever, however you celebrate, we help you do it in style this year.
Jeff Lewis 42:20
And before we let our audience go, I've got a Christmas edition legal tidbit that will warm your heart about the industry we all have chosen to work in this story comes out of North Dakota. It's about a law firm that decided to sue to former associates for a refund of their salary for not making their billable hours. Again, this happened in North Dakota. They these associates had a contract with a clawback provision. And if you don't make your billable hour requirements the firm's going to clawback the salary and some interesting facts about this case, the firm received $800,000 In PPP loans. The firm sent a bill to these former associates, the bill wasn't paid lawsuits were filed against these two associates. In summary judgment motions were granted against these two associates and the cases are up on appeal in North Dakota. So my Christmas message to all of you in our audience is Thank God we're not partners at or associates at that law. That's Bob buck.
Tim Kowal 43:21
All right. With that,
Jeff Lewis 43:21
we want to thank our key our sponsor casetext for sponsoring the podcast each week, we include links to the cases we discuss these in casetext and listeners of our podcasts can find a 25% discount available to them if they sign up at casetext/calp. That's casetextt.com/CALP.
Tim Kowal 43:37
And we want to thank those of our listeners who have already reached out to us with some excellent suggestions for future episodes. If you have a suggestion for another guest or topic for a future episode that we should cover, please email us at info at cow podcast.com. Or if you have either Jeff's or my email addresses, feel free to email us directly and in our upcoming episodes in 2023. As always, be sure to look for more tips on how to lay the groundwork for an appeal and preparing for trial. See you next time. And Bob.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a 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 podcast.com. That's c a l podcast.com. 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 www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.