When we covered some of the tips and pitfalls of family-law appeals on episode 6 of the California Appellate Law Podcast, it became one of our most popular episodes. So we invited Victoria Fuller, a certified appellate specialist focusing on family law, to join us for another installment.
Walking practitioners through various procedural issues in family-law cases, Victoria discusses with co-hosts Tim Kowal and Jeff Lewis:
Victoria Fuller 0:02
appraiser discretion review. You know, they have to affirm even if they would have made a different decision as long as there's a rational basis.
Welcome to the California pellet 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 0:25
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:27
And I'm Tim Kowal Law, California Department of podcasting licensed pending review of my Blockbuster video rental history. The California appellate law podcast is a podcast for trial attorneys and other appellate attorneys. Jeff and I both split our time evenly between trial and appellate courts. And in this podcast, we bring guests and news that might help the attorneys in our audience in their trial practice, as well as inform them on interesting developments in the law and the legal profession.
Jeff Lewis 0:52
Welcome to Episode 27 of the podcast. One of our
Tim Kowal 0:56
most popular episodes. Jeff on this podcast was our overview on Family Law appeals. But since we published that episode on Family Law appeals back in October 2020. We haven't really come back to the subject. A few weeks ago, I saw an article in the Daily Journal with a very apt title, understanding the differences between family law and civil appeals, and the author was Victoria Fuller, and lo and behold, we have Victoria fuller on our show today. Victoria is a certified appellate law specialist. She handles written appeals in both state and federal courts and a wide range of civil practice areas and also family law matters. In addition to her to her practice in appellate courts, Victoria represents clients in appeals from administrative decisions taken to the Superior Court. She also assists attorneys with motions in the trial court such as pre and post judgment proceedings and motions for summary judgment, and class certification. Victoria currently serves on the executive committee of the San Diego appellate in of court, a group of judges and lawyers organized to promote excellence and appellate advocacy. She previously chaired the appellate practice section of the San Diego County Bar Association, and she volunteers for CASA Cornelia Law Center, representing individuals seeking political asylum in appellate proceedings. Welcome to the podcast, Victoria.
Victoria Fuller 2:13
Thank you, Tim, that was very well said,
Tim Kowal 2:15
Well, we we appreciate you joining us like I like I mentioned, you know, we haven't done a family law peels episode. And so we wanted to bring you on to talk about your article. And before we get to that, I want to know if you would tell us a little bit more about your practice, other than what I just read in the intro.
Victoria Fuller 2:32
Sure. Let me start by just saying thank you for inviting me. I'm really happy to be here and to talk about this subject. In terms of my practice. You nailed it based on what you said, I guess I'll just add that really, my practice is almost exclusively appellate, I do handle, you know, substantial motions for trial lawyers, maybe it's a trial brief. In a case that's going to go up on appeal. Maybe it's a summary judgment, motion or class certification, like you mentioned, or an important motion on collateral estoppel, something like that. But other than that, it's exclusively appeals and all different kinds of civil cases and family law cases as well.
Tim Kowal 3:09
When we talked briefly a couple of weeks ago, you had mentioned that, you know, the that the percentage breakdown of your appellate cases that deal with family law matters, fluctuates quite a bit. And you know, sometimes it's all family law appeals. Sometimes you don't have any and usually it's somewhere in the middle. It's about right, is it still right about in the middle these days?
Victoria Fuller 3:28
These days? Funnily enough, I'd say it's 8020 80%. Being family law appeals. I've got more of those on my desk right now than civil appeals. Last year, it was probably 5050. The year before that it was probably 30% Family Law 70% civil so it fluctuates over time.
Jeff Lewis 3:45
Victoria, being an appellate lawyer is super hard representing the appellant with long odds of winning, getting a judgment overturned, and in the context of family law with those daunting standards and review, how do you keep your spirits up with an 80% family law caseload? How do you go to the Court of Appeal and argue a case and keep your keep a smile on your face and enthusiasm when you know, statistically speaking, it doesn't look good?
Victoria Fuller 4:09
Well, the key is, well, there's two keys. One key is when you get a response, appeal it feeling great.
But when he responded, I like that,
yeah, being a respondent is a wonderful place to be. But as an appellant, it's all about really selecting the right appeals and making the right recommendations to the client. Because when it is the deferential abuse of discretion standard, it's just so difficult. So you've really got to look for, you know, specific circumstances in order to recommend that, but there are plenty of cases in which there might be a question of law. You know, right now, I've got some really interesting cases with with questions of law that haven't been resolved. There's no published decision on it. So that's a great way to, you know, to move forward, whether you're the appellant or the respondent. So, so I guess yeah, just just if the abuse of discretion standard is at play, then really only recommend and appeal when it when it actually makes sense.
Tim Kowal 5:03
Tell us a little bit about your work in in the trial court. I know you said that you you're doing exclusively appellate work, do you still do some work in post order post judgment proceedings, and you get involved in the trial court actually set set foot in the trial court room in those kinds of motions that you handle.
Victoria Fuller 5:19
I rarely actually set foot in the trial court. But I do participate heavily in the in the post trial proceedings, definitely. And sometimes even before trial, you know, like it like in the case that I mentioned, but where there's a really interesting question of law, that cases is going to trial and a little bit here. And so I've been involved with trial briefing and that sort of thing, just trying to, you know, understand the case moving forward, frame it do the research on on any unpublished cases that are out there. And then the trial lawyers can can have some insight as to what questions you know, the Court of Appeal might be thinking of when they're actually framing issues in the trial. But that's rare. Most often, I'll come in post trial. And I definitely participate in post trial motions. And I'll and I'll write them absolutely, but usually for the signature of the trial attorney, because they are the attorney of record in the case. So I really work very closely with the trial attorney, and in the statement of decision process to and trying to just look at it from the angle of what can we add in terms of, you know, protecting the clients interests, on appeal, you know, there may be good reasons to file a post trial motion, if there's actually a chance of getting some some decent relief. But on top of that, that might be an opportunity to beef up the record whether factually, or making legal arguments. So maybe strengthening the appellate record there. So so I definitely get involved in those proceedings.
Tim Kowal 6:51
What would you say is the biggest difference in perspective between you as an appellate attorney and the trial attorneys that you work with, in trying to relate your advice from the perspective of an appellate attorney? Do you ever encounter resistance from the trial attorney that oh, you know, I don't think we need to do that, or I don't think the judge is going to go for that argument anyway. So why bother? Do you have any you draw any lessons from your experience in working with trial attorneys in those post trial? proceedings?
Victoria Fuller 7:16
Yeah, definitely. It's a balancing act, you know, we're both trying to do our best to try to to represent the client's interests. And so there are times when, let's say, in the circumstance, when the case is going into trial, and I'm involved, and I'm providing perspective, that I think is going to be really important down the line. You know, at that time, it's the trailer is trying their case. And so I will come in, provide my input and advice, but take the backseat, you know, how they try their cases, really their call, and I don't want to be second guessing. At that time. You know, as things move along. Usually, the relationship is such that, you know, we're not at odds in terms of what kinds of post trial motions to file or what kinds of arguments to make, usually, we can, we can talk that through and find a common ground. The one area that I'll say that I see some resistance sometimes is really, really understanding the standards of review, and even with very, very experienced, accomplished trial lawyers, and probably the biggest one is the substantial evidence standard, and recognizing that, if you're going to pursue an appeal, you've really got to accept the facts as found and believed by the trier of fact, because almost no substantial evidence challenge is going to win. So you've got to be able to tell the story from the perspective, you know, as believed by the trier of fact not conceding anything. But that's kind of a difficult, you know, thing when the trial lawyer has been living with the case breathing with the case, or breathing the case for years and years. So that's difficult, and then really understanding that what a substantial evidence challenge really means that, you know, let's say in an easy car accident case, the plaintiff is the only person that comes in and testifies on the plaintiffs behalf that the defendant caused a car accident. But then, you know, the defendant came in and tested testified otherwise. And then 50 people testified on behalf of the defendant. This substantial evidence rule means that the appellate court has to completely 100% disregard everything that was said on behalf of the defense, and look at whether, you know, what the plaintiff said, is legally sufficient, and most of the times it is. So that's a tough, tough thing to explain sometimes.
Tim Kowal 9:37
Yeah, that's interesting. You say that, that that's the case, even with experienced trial attorneys. And I would imagine it's not it's not a failure to appreciate what the what the standard of review means or what substantial evidence means, but like you say, they've been living with the case so long. And now with these factual findings, the landscape, kind of the underlying factual landscape has changed. You can no longer assume that I can just continue The trier of fact of my view of the facts and then smooth sailing on the law. You have to kind of you have to really pivot after those factual findings have been made. Absolutely. Okay, one one more question. Before we dive into the substance here, all attorneys have some some gripe or another about the legal system. I mean, personally, I don't I'm I'm a very content sort of person. But do you have any gripes about the legal system and or suggestions for how the legal system could be made better? Gosh, that's
Victoria Fuller 10:30
a really a tough one. For me, I, I don't have huge gripes with the legal system. But the only thing I'll say, and it really doesn't relate to our topics today. But it has to do with criminal law. And of course, I don't practice in that arena. But I am on the board of appellate defenders Inc, which is a nonprofit organization that facilitates state funded defense to criminal defendants on appeal. So it just says that they have a right to counsel at trial, they have a right to counsel, on appeal. And in that role I've come across, or the work done by the Innocence Project. And it's having just a purely civil background, no criminal background, it really has surprised me how many cases in which you see a person who was wrongfully convicted, and then on top of that, how long it can take take to fix that, you know, 15 years or 18 years. And that's really, really, really sad to think and how do you fix that? I have no idea. But if there were anything I could fix about our legal system, it
Tim Kowal 11:31
would be that that's, that's interesting. And that is a those are grave concerns. I just I just saw there was a case out of the Supreme Court where there was a, a Batson Wheeler challenge made some two decades after the conviction. And maybe because you can get post conviction discovery into such things apparently, again, like you I don't practice in, in criminal at all. But I find those kinds of issues interesting. And in in civil, I would say, you know, that's crazy. But because of the stakes, obviously I understand why they're those procedures are available that the challenge ultimately did not succeed. But the courts take it seriously, apparently. All right. So we've had a chance to discuss a little bit of the differences between trial and appellate work and how we see those things differently from the eyes of appellate attorneys. Now, let's discuss some of the differences between civil appeals and family law appeals. Victoria, before I asked you about the particulars. Are there any general differences between family and civil appeals? I mean, they both you know, they're their civil appeals, they go to the same court of appeal, the same rules of court apply, but somehow they just feel different, like Jeff was kind of alluding to sometimes you just feel like, you're going to lose if you're the appellant. Why, why is that? What, what accounts for that feeling of dread if you're the appellant in a Family Law appeal?
Victoria Fuller 12:47
Well, that's the standard of review, you know, as we were alluding to before, so many questions that come before a family law judge are judgment calls that are reviewed for an abuse of discretion. And on top of that, Family Court is different than civil court in the sense that family courts have broad discretion to try to do what's fair among the parties. And so the appellate court isn't going to second guess, the family court sense of fairness, you know, as long as there's some rational basis, if you can just connect the dots rationally to the decision. So that's really the biggest, scariest, you know, hurdle and family law appeals. But as I said before, there are instances when you can show an abuse of discretion, not often, but there are and then there are legal questions. And then in terms of just kind of 30,000 foot differences, there are just some things to be aware of in terms of what orders are appealable versus what are not. And as a practitioner, you know, doing both civil appeals and family law appeals, you've got two Bibles, and you always check both you you're looking at, you know, read our civil appeals and writs and then read our family law and double checking everything so. So there are some key differences. And so looking at both writer guides is really important or whatever sources you look.
Tim Kowal 14:05
Yeah, yeah, there's in addition to nine oh, 4.1 with the whatever it is 12 or 15, appealable orders, there's some, you know, 200 different appealable orders under the Family Code. Like someone said, they counted all the family code appealable orders at some appellate conference I went to and I think I think they said 238. I could not tell if they were exaggerating, I would believe it. And so on to some specifics about the differences in family law appeals. You mentioned a few of them in your daily journal article entitled, understanding the difference between family law and civil appeals. And the first one that you discuss is a is the unique post judgment relief that's available under Family Code section 2122. What different kinds of relief are available under that section?
Victoria Fuller 14:53
Yeah, coming from a civil background. That's really a unique statute. So the family code section 2122 Too authorizes a motion to set aside a judgment for a variety of grounds, anywhere from fraud to duress to a party's failure to comply with financial disclosure requirements or inaccuracies in the disclosures. And when really unique aspect of the provision is that even when a judgment is entered based on settlement, so a stipulated or an uncontested judgment, you can still file a motion to set aside the judgment or the stipulated portion of it based on a mistake of law or fact. And the mistake can be unilateral as opposed to mutual.
Tim Kowal 15:38
A unilateral mistake can can result in a in an overturn judgment. It can, it can, but that's yeah, that's That's surprising. I, we get calls with some regularity people wanting to set aside a judgment in the civil context. And while it can be done, I never never would tell them, it's from a unilateral mistake. So good to know that's different in family law appeals. Now you also note in your article that parties may move to set aside a stipulated for Okay, and that's I think that's that's what we were just talking about a unilateral mistake of law or fact. And I wanted to know if your experience or from what you've seen, does this get abused?
Victoria Fuller 16:16
Yeah, I would say that just about anything can be abused, or at least people can try to do it. I haven't seen it myself. But a way to understand it is there's a there's a big difference and what's going on in terms of finality of judgments in family law and in civil cases. And of course, in civil cases, the parties are tasked with proceeding doing all the right discovery that they need to do finding out all the facts and then presenting their case or settling based on those facts, then you've got a 1542 waiver, and you're done. You know, the judgment needs to be final parties can't be coming back trying to to undo it. in family law, though there are two really important differences. And one is the Family Court is obligated to equally divide the community property estate. And then number two, the parties are obligated at the beginning of the case, and then just before trial, to make financial disclosures. And yes, there can be additional discovery and the parties are tasked with, you know, handling discovery in the same manner and under the same statutes, as in civil cases. But the parties have to disclose everything, all the debts, all the assets, so that everybody is on the same playing field, and so that the court can meet its statutory obligation to equally divide the estate. So under those circumstances, you know, there are times when maybe a party hid an asset. And it didn't come out until years later. Or let's say a party entered into a stipulation to value an asset, whether it's a real property or a business, but you know, was under the impression that the stipulation would be used in a certain way. But as it happens is everything went further, it was used in such a way that the division wasn't actually equal. So there can be all kinds of things that come up, that undermine the notion that they are really the obligation that the estate has to be divided equally. And so this statute provides a way for the family court to fix that, even if something is is is later discovered years later.
Tim Kowal 18:26
So this has got to be for you in consulting with the with the family law attorney or the or the client who approached you about I want to take an appeal of this order. This has got to be one of the first things that you tell them, Well, have you considered maybe doing a little bit of digging and seeing if you can establish grounds under family code 2122. To set it aside on the basis of some mistake of law or fact that there was an inaccuracy in the financial disclosures or something withheld in the financial disclosures or some other new fact, how often do do clients and family law attorneys come away from your consultations and say, you know, maybe we take another run at this before we resort to the Court of Appeal?
Victoria Fuller 19:08
Oh, it's definitely an avenue that's pursued, you know, when there's a basis for it. But oftentimes, as with post trial motions and civil cases, oftentimes, you know, the judge has already made the decision. And so as with other post trial motions, or maybe other reasons to bring the motion, whether beefing up the record on appeal, so it may be an area where you can actually get relief, or it may be an area where it's an important step in the process before you pursue an appeal.
Tim Kowal 19:38
Okay. And related to this. You also note in the article that the deadline to bring emotion under Family Code section 2122 Doesn't lapse until years after entry of the judgment. And I wonder what are what are the effects of this rule and, you know, does that get does that get abused or if you here's a specific question, if if you lose the appeal and Then you find more evidence, can you still challenge that judgment even after the the judgment or order has been affirmed on appeal?
Victoria Fuller 20:08
I guess it probably has to be a completely different issue. You know, I suppose in theory, you can have a case where there was one hidden asset that was discovered. And so you pursue all your remedies based on that. And then a year later, you find a whole separate asset. I can't say I've ever seen a case like that. So it's probably unlikely. But this statute does have set timeframes, you know, an example is fraud. But what can draw it out is, is the, the triggering event is the discovery of the fraud.
Tim Kowal 20:38
Okay, so you have a certain number of years, or is it years after the discovery of the fraud?
Victoria Fuller 20:43
I believe fraud is one year after the discovery of the fraud, there are some grounds that carry a two year timeframe, it varies based on the different grounds.
Tim Kowal 20:53
And let's get your opinion on that rule. Is that is that the right rule? Does it lead to too many, too many attempts to challenge the same order? You know, in civil sometimes, you know, the law likes to say that judgments are entitled to repose. It seems like family law orders are entitled to just a little bit less repos under family codes. 2122, do you think that's that the code strikes the right balance?
Victoria Fuller 21:19
I really do to be honest, you know, I suppose the downside is, is that there could be further litigation down the line, and nobody wants that. But by the same token, courts need the flexibility to be able to do what's fair. So if somebody really did hide assets, you need to be able to go back and fix that if if the state wasn't actually equally divided, and one party got a really unfair windfall, you need to be able to fix that. But by the same token, you need to be you need to make an adequate showing. So this is really a mechanism to file a motion to set aside. So you've got to provide, you know, grounds and make a showing that would support that.
Tim Kowal 22:01
Okay, and then and then let's, let's move on to the next subject that you cover. In your article, you noted that motions for reconsideration may be a very effective tool in family courts. Can you elaborate on that? What do you what do you mean by that?
Victoria Fuller 22:17
Yeah, there is authority in family court or family law decisions, saying that when a party has brought a motion for consideration, that doesn't actually satisfy, you know, the requirements, there's no new fact or no new law. It's okay. If that triggers the family court to actually reconsider on its own, an order that the family court has later determined was wrong. And so even when a motion for reconsideration wasn't proper, the court has the ability to reconsider an erroneous order and fix it.
Tim Kowal 22:55
What happens in one of the cases or one of the doctrines we've covered in this podcast on civil appeals is that motions for reconsideration have have some jurisdictional limits, including that after the entry of an appealable order, the trial court loses jurisdiction to reconsider that order. Because at that point, it's final. And your remedy, then would be to file a motion to set aside or to vacate and comply with those timelines or to to appeal it. And and the trial court has LOST jurisdiction over that order. Do you happen to know if the rule is the same in family court? Given that there are so many more orders that may be appealable? In the family court, and yet, motions for reconsideration are are so widely used? I wondered if the rule is different there?
Victoria Fuller 23:46
Well, you can certainly file a motion for reconsideration post order, you know, as long as you're within the statutory timeframe. Post judgment, I think is when is when you can't and I'm not really aware of a distinction here. Okay.
Tim Kowal 24:02
And you mentioned that in your article, that in family law cases, that you can probably talk parties out of pursuing an appeal more often than you recommend moving forward, due in large part to the applicable standard of review. And I talked about that a little bit. I wondered if you could elaborate a little bit more on that. What do you what do you commonly tell your clients or family law attorneys about the the standard of review and whether it dooms the appeal, or whether there might be some ways to chart a course around it?
Victoria Fuller 24:33
Yeah. So you know, I always give every case it's due. And I always, you know, really do my best to try to see if there is an avenue that when you're when when you're looking at the abuse of discretion, standard, the avenues are limited. What you're looking for are situations where the court actually didn't exercise its discretion. The court didn't actually understand the scope of discretion or miss apply law. Those are the three big catchphrases on when you can make a case for an abuse of discretion. And otherwise, the only time you're going to have a real viable appeal is in a very rare, rare rare case, when the order was just so irrational, that no trier of fact could possibly make the same decision. So, so I was explained those catchphrases to the family lawyer and to the client and said, This is what I'm looking for. And if I can't find it, you know, I can tell you that you can pursue an appeal. But the problem is, you're going to very likely find yourself back in the same spot after another year or two, having spent a bunch more money. And it seems to make sense to see if is there some other recourse some future recourse in the family court? You know, is it something that could be modified something like that? Yeah,
Jeff Lewis 25:55
unlike civil cases, you know, family law cases are so messy, there's so moving so many moving parts with kids and money and support and custody and where my kids going to go to school, that I often counseled people don't waste your time with an appeal, wait six months, something will change, some circumstances will change, you'll have a credible argument to get back in front of the judge. And who knows, maybe it'll be a different trial judge and try to get your relief a different way. Because statistically speaking, it's a better Avenue.
Victoria Fuller 26:22
Absolutely. It's always important to consider that
Tim Kowal 26:25
you mentioned in in the cases where you can't find one of those ways to get around the the abuse of discretion standard of review, like you couldn't find that the judge misapplied, you know, apply the wrong standard or failed to consider one of the necessary factors. And you're just you're really, you're just going to be going, you know, hitting your head against that wall of abuse of discretion, and trying to make that high hurdle. Is it ever a factor in your analysis to take a look at who the to the family judge was? And and say, Well, you know, I think this family judge seems to be getting reversed quite a bit more seems to be, you know, not not quite staying within the lines as much as his or her colleagues. Is that ever, ever a part of your analysis? Very, very,
Jeff Lewis 27:10
as a reminder, I was just gonna say, as a reminder, we are recording Victoria,
Victoria Fuller 27:16
in particular, judges, alibis. very ill advised a very, very small part, you know, I've at least heard through the grapevine that there are some, you know, judges names that might be might raise an eyebrow sometimes. But again, it's just going to be based on the merits. So that might be something that the court looks at for a brief moment, but it's not going to make or break. And it's really not going to change the analysis.
Tim Kowal 27:45
Have you ever had a client tell you that they're sure that there's a conspiracy between the judge and the other side? Oh, for
Victoria Fuller 27:53
sure. And I always tell them, I've in all my years of practice, I've never seen that. Yeah, I
Tim Kowal 27:59
want to make sure I wasn't the only one. Okay, let's talk a little bit about let's see, I think I had a question for you about in working on, on these family law appeals. You've challenged the family judges discretion in some of these cases, and as the appellant and then as the respondent, you've defended the judges discretion. Do you think that the appellate deference and family cases is too much? Too little? Just right. What's your what's your opinion on that you think they the the Court of Appeals strike the right balance?
Victoria Fuller 28:30
That's really a tough one, because I think no matter where you strike the balance, somebody loses. You know, I've definitely seen cases, in fact, a recent case that I just looked at, and I had a client who wanted to pursue an appeal based on the valuation of an asset. And I firmly believe that he should have won in the family court, I firmly believe that factually and legally, he was right on, and I am pretty sure that at least some appellate judges, you know, may have ruled in his favor, had they been the family court judge. But the problem is that on abuse of discretion review, you know, they have to affirm even if they would have made a different decision, as long as there's a rational basis. And in his case, there was there was a rational basis to support the order. And so it was sad. It really affected the case. And I and I don't think it was the right result, but I still believe that his chances on appeal were extremely, extremely low. So So yes, you see that, you know, if you were to change the the discretion somehow, then the inequities would, would turn out wrong, on the other hand, or on the other end at times, you know, so it's hard. But one thing I will say is that I've heard multiple justices say that when they were elevated from the Trial Court bench to the appellate bench, they were really surprised at the breadth of discretion, and they actually really didn't even appreciate when they were on the bench
Victoria Fuller 30:00
Just how wide their discretion was? Oh, really? Yeah,
Tim Kowal 30:04
that's a that's, that's surprising. They've they've, you're saying that they found that when they when they were elevated to become an appellate justice, they found themselves being required to give more more leniency than they even realize they had. Okay. Yes. All right. Well, let's move on and talk about interlocutory appeals. And as well as certifying appeals. I wonder if you could describe that process for our listeners?
Victoria Fuller 30:31
Yeah, that's a very unique process that doesn't apply in civil cases, of course, but in in family law cases, when trial has been bifurcated, and there's an issue that's tried first, that has a really big impact on the rest of the case and all the other issues that need to be tried. A good example of that is the enforceability of a premarital agreement that's going to affect you know how all the all the properties is going to be divided, that sort of thing in it, and it may affect support and all sorts of things. When trial is bifurcated in that fashion, there is a way to seek certification for appeal. So it's a two step process. So the losing party can file a motion in the family court asking that the family court certify that there's probable cause to for an immediate appeal. And then if that's granted, the party can file a motion in the Court of Appeal, seeking authorization to appeal the issue.
Tim Kowal 31:32
Are most family law attorneys comfortable with this process? Or do they need to retain an appellate specialist to help them?
Victoria Fuller 31:39
You know, I'm sure it depends on the family law attorney. But most of the time, I would say they're not really the family law attorneys I've worked with aren't like super, super familiar with the process. They know of it, but don't necessarily know the process. And I've and I've worked with extremely experienced very, very good family law attorneys who just thought or assumed because it feels right, that you've got this key issue that's going to be tried first. That's, you know, after the bifurcated phase one trial, that's certainly going to lead to a judgment. That's appealable. Right, you know, and the answer's no, I mean, either you appeal it after the one final judgment at the end of the case or you seek certification
Tim Kowal 32:21
in from what you've seen, in your experience, do family judges play these motions down the middle? Do they? Are they just calling balls and strikes on it? Are they do they kind of put their thumb on the scale against allowing the litigants to take up the order on appeal?
Victoria Fuller 32:35
Oh, I think it very much depends on the judge. You know, some of them are really open minded, and some are really not. So I've seen cases where where there was a lot of money at stake. And and a really interesting question of law, and the judge knew it was going to go up on appeal. And so try the case with that in mind and just accepted that that, that that issue was going to be appealed. And then there's other you know, federal law judges who really don't see that there's a viable appeal there that the decision that was made was correct. And there's no need to to, to basically stop the case now and have that basically, everything go off the rails. So it just depends on the case. And it depends on the judge.
Tim Kowal 33:18
Yeah. Do the judges also consider the logistics of the case? You know, in addition to probable cause? Are they thinking well, yeah, you know, it would be nice to have the Court of Appeals ruling on this, but it's going to delay this case, it's going to drive up the cost and everybody, are those? Are those appropriate factors, or that are the outside factors
Victoria Fuller 33:40
are not factors in the the court rule that governs the process? But I'm sure I'm sure the judges are thinking about that, you know, they need to look at it in terms of is this an issue that's that can lead to a settlement among the parties? Is this an issue that impacts the other issues in the case and that sort of thing? But, you know, I'm sure there any number of factors that the, you know, the judge is the one person has hopefully been presiding over the case from the beginning, maybe not, but should be familiar with it. And so yeah, all of those things can come into play.
Tim Kowal 34:12
What about writ petitions in the court of appeal if you if you're not able to get certification of an interlocutory order in the family court? And you still you really want to get this up? In the Court of Appeal? And guess you could take it up on a writ petition? What are your chances if the Court of Appeal sees that? Well, you you took a run at it with the family judge family judge didn't think it would it warranted review on appeal, does that kind of doom your chances you're already low, you know, slim chances of getting rich review. Do you ever advised a client to take a run at a repetition even after they failed to get certification from the family judge?
Victoria Fuller 34:49
No, I haven't. And and that's tough. You know, a red is even more difficult. It's discretionary. And you've got to show irreparable harm. And, you know, spending money on legal fees. Isn't irreparable harm, so you're going to have to show something else there is going to have to be some compelling reason that would support a read, and you can certainly file it, you know, but but it's not a small investment. And it's really deflating when you put all of these resources into something like that. And three days letter later, you get a one page or one sentence order, saying the petition for writ of mandate has been considered and is denied.
Jeff Lewis 35:25
Yeah, with no explanation, you know, picking up on that thought in the area of writs. You know, in the in the in the civil litigation context, I turned down clients all the time saying, we're not going to get the Court of Appeal excited about taking us up on our read so, but in the family law context, I sometimes get approached, either oppose or help with a move away order. And for our audience perspective, it's an order that lets divorcing spouse take a child out of the jurisdiction to another state or another town because of a marriage or a job change. And I gotta, I gotta tell you, when I get these rents, I think, Oh, my God, this is the case with the Court of Appeals gonna find good cause that there's no adequate legal remedy, that kid's gonna be all grown up at this time this case is resolved. This is a case where a court of appeals gonna grant the writ either for or against the move away. And I gotta tell you, my experience, my gut is proven wrong. And I never seen a Court of Appeal really get involved on a move away. And I was wondering, in your experience, is there any magic to getting the Court of Appeals attention on a writ petition involving move away orders?
Victoria Fuller 36:24
No, my main your experiences is right in line with mine, the last time that I looked at a potential appeal from a move away order, I remember researching, you know, can I find a reversal? Can I so I looked at case after case after case after case, and I don't remember exactly, but I found zero or one, it may have been one. But the Court of Appeal just so rarely reverse those. And again, the standard of review is abuse of discretion. So it's just so hard to show, I do remember that a lot of the decisions commented on how difficult those cases are just emotionally. And based on the facts. They're just tough cases. I know the appellate courts don't like them, but they very, very rarely reverse.
Tim Kowal 37:09
So to review our standards of review, we we've got de novo. We've got substantial evidence, we've got abuse of discretion, and in the family law, context, abuse of bass bass discretion. So one last question, Victoria, when when should family law attorneys be thinking about consulting an appellate specialist for their case? You know, sometimes they come at you when, you know, oh, by the way, we've got this order, and we need to take a writ right away, or, you know, we need to get a certification order. And is it ever you know, sometimes it's too late? Is it ever too early? What are the when should family law attorneys really be thinking this case, you know, may need to go up on appeal may need to talk to an appellate specialist?
Victoria Fuller 37:53
Yeah, I would say it's rarely too early unless, you know, financial circumstances don't justify it. But it really, really depends on the case. So like I mentioned earlier, there are cases where you want to be involved even before trial starts. But that's going to be a really unique case. You know, maybe it's a question of law that hasn't been decided, and there's a lot at stake. So for the most part, that would be too early, it just wouldn't be justifiable. But when it's the family law attorney wants to be sure to know the deadlines for requesting a statement of decision. So if there's any doubt, then definitely contact an appellate specialist before trial, just to make sure that you're aware of, you know, when and how to request a statement of decision, and then certainly by the statement of decision process, so that everybody's on the same page and protecting the client's interest in terms of preparing the proposed statement of decision, and then preparing objections and what the purpose of those objections are. Because it's not to argue everything, you know, all the issues in the case, it's, it's for a different purpose. And certainly to consider any post trial motions, and definitely by the time of filing the Notice of Appeal, because you would think, okay, there's a deadline, there's there's a 60 day deadline, it should be pretty simple to calculate. But all too often, it's not simple. And that's definitely a deadline that nobody wants to blow on the respondent, then I would also say sooner rather than later. So a notice of appeal has been filed. And sometimes, you know, parties will wait. But there is a short timeframe to designate the record. So the appellant has 10 days to designate the record once a notice of appeal has been filed, and then the respondent has 10 days to respond. So sometimes, if there's a delay, then then that deadline has come and gone. So if there's any inkling that an appeal might be coming down the pike, or if a notice of appeal has been filed, then it's time
Tim Kowal 39:51
I'm glad you mentioned a moment ago you mentioned statements of decision and I overlooked I wanted to ask you a little bit about statements of decision so I lied when I said I asked you my last question. And so we often discuss the statement of decision process on this show, and and how important they are in bench trials and family laws is all about bench trials. is the statement of decision process different in family court than it is in civil court?
Victoria Fuller 40:15
It's exactly the same same statute, civil procedure section 632. So all of those rules apply.
Tim Kowal 40:22
Okay, good. Because I wanted to talk a little bit about there's there was a recent decision in San Francisco V. Hale, it was out of the first district, it was just issued last month in February of 2022. And the Court of Appeal reversed the family court order because the family judge had refused to issue a statement of decision even though it had been timely and appropriately requested. And I just learned that the Association of Certified family law specialists as requested publication of that opinion, it was issued as an unpublished opinion. But the A CFLs noted that there that a lot of family law judges were refusing to give statements of decision just like this, this Court was and it was reversed. And I wondered if you have noticed this trend in your practice of family judges refusing to sing now? I'm not going to do it not going to give you the statement of decision.
Victoria Fuller 41:14
I haven't seen it in my cases. But I do hear a lot of family law attorneys say that. So so I get what I'm hearing is definitely consistent.
Tim Kowal 41:22
Can you think of anything that family law attorneys can do? To to get the judge to know, Your Honor, you really got to give us the statement of decision, we cited the right statute, and the law says you've got to give it
Victoria Fuller 41:36
Yeah, then at that point, you're just doing anything and everything you can and whether it's a motion for reconsideration, whether it's that plus a motion for new trial, I'm citing the case law, obviously saying that it's error to you know, refuse to provide a statement of decision when it was properly requested, and then making a showing of prejudice, because Because Because now you know, before a lot of appellate decisions used to say that was reversible, per se of it. But the California Supreme Court change that you've got to show prejudice. So So making a showing and those motions, not only to demonstrate the error, but to show prejudice, you know, something along the lines of a decision that you just mentioned, the recent one, involve a situation where there were two irreconcilable decisions. And so the court of appeals reversed based on that saying, there's really no way to review this, because you can't reconcile these whatsoever. So I would say research, you know, the cases on statements of decisions, and you'll find a springboard, you know, you'll find some, something similar to it'll give you some ideas on where to, or how to show prejudice.
Tim Kowal 42:46
Yeah, that's that seems to be the trick is how to show prejudice. And some sometimes it seems like, you know, your mileage will just vary. I haven't I haven't found a good formula for for how to show prejudice. Sometimes the court will just say, Well, you know, if the court would have gone to the task of writing up the decision, the the errors would have come out in the writing. And, and that's enough for for showing prejudice, which is almost just a long winded way of saying reversible per se, but others will will make a deeper analysis of whether there was prejudice shown. Okay, so we've covered the topics that we had discussed before, before recording. Now Jeff is going to spring the trap and ask you a bunch of the really hard questions.
Victoria Fuller 43:28
Oh, excellent. Yeah. Can I reserve the right to fail?
Jeff Lewis 43:34
This is our trademarked patented, proprietary lightening round, asking the most important question, question some facts and pellet nerds around the world. We'd like one word or one sentence answers if you're able, are you ready? I'm ready. Font preference century schoolbook Garamond or something else? Garamond. Nice. Nicely done. After a period two spaces or one, one? That is correct. Referring to a party as appellant or respondent throughout the brief, or do you like to use party names?
Tim Kowal 44:11
PARTY NAMES? Okay. But then the real question was, is the rule to avoid using the party designations where you can? Or do you avoid it like the plague?
Victoria Fuller 44:22
I like to I like to humanize the case. So So I like to use PARTY NAMES when I can. But of course in family law, sometimes they have the same name. So it's tricky. So sometimes I'll use husband wife, mother, father, I really tried to avoid appellant respondent.
Jeff Lewis 44:37
Do you try to dehumanize the other side by using your clients name but referring to other studies respondent?
Victoria Fuller 44:43
No, I'd like to sometimes but it's just too obvious. All right,
Tim Kowal 44:49
so devilishly idea, Jeff.
Jeff Lewis 44:52
Okay, and I know we got a bit of a time crunch. The final lightning round question will be when you're talking about your major argument headings in your appellate brief Go with all caps, initial caps or sentence case. Initial caps. Nicely done. Alright, you've survived the lightning round and after episode 50 Records Tim's gonna pass out a t shirt saying I survived Tim and Jeff's lightning round
Tim Kowal 45:15
to send us your size.
Victoria Fuller 45:19
Oh, I can rest out she knows scary.
Tim Kowal 15:23
Okay. Oh, Jeff, I think you had one one bit of legal news you want to pass on? Oh, yeah.
Jeff Lewis 45:27
If we have time, I'll just share that. A couple of weeks ago, we recorded our podcast with Attorney Sean Brady about second amendment litigation, in particular, the McDougal appeal concerning Second Amendment rights in relation to COVID-19 orders shutting down gun ranges. And the Google decision was really interesting because it involved one judge showing both the majority opinion and a concurring opinion predicting that the Ninth Circuit was going to grant on bonk review, and he was right. This week, the Ninth Circuit announced it was going to do an on bonk review of McDougal opinion concerning the propriety of shutting down gun ranges during COVID-19. So just to follow up on that,
Tim Kowal 46:06
Judge Van Dyck is a profit after all. Yeah, and he also Ravana years Doctor 20 years on the on the bench judge FiBL down here in the Santa Ana Court of Appeal, fourth district division three is going to be retire retiring at the end of this month on March 31. That's going to we already had three recent retirees on on that met division. We had one replacement, and this brings it down brings us back up to three vacancies. So we're gonna be hurting for a little while. Yeah,
Jeff Lewis 46:34
that's it's a big deal. Okay. Well, Tim, I
Tim Kowal 46:36
think that wraps
Jeff Lewis 46:37
up this episode.
Tim Kowal 46:38
Yeah. If you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis 46:50
See you next time.
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 ca l podcast.com. That's ca l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at email@example.com or (714) 641-1232.
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