Where’s the Harm?! & Other October 2022 Cases

Timothy Kowal, Esq.
November 8, 2022

Every attorney knows that to reverse an order, it’s not enough to prove error. You also have to prove the error harmed your client. But when the Court of Appeal in Transcon Financial, Inc. v. Reid & Hellyer reversed a sanctions order for the reason that the offending party was not given the full 21-day safe-harbor period (motion was filed a day early), the court did not explain why the one extra day would have mattered.

What’s going on here?

Jeff and Tim also discuss some other nuts-and-bolts cases that attorneys should bookmark:

Other items discussed in the episode:

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Sign up for “Not To Be Published,” Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.


Jeff Lewis  0:03 
Let me give you a lawyerly response. You're right and you're wrong. You're right, because that's how it should be. But that's not how the trio court move.

Announcer  0:09 
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. Well, welcome, everyone.

Jeff Lewis  0:24
I am Jeff Lewis.

Tim Kowal  0:26
And I'm Tim Kowal. The California appellate law podcast is a resource for trial attorneys and appellate attorneys. Both Jeff and I are appellate specialists. We split our practices about evenly between trial and appellate courts. And we try to make this podcast a resource for trial and appellate attorneys and give them some use news and tips and perspectives they can use in their practice.

Jeff Lewis  0:45
Right and a quick thank you to our sponsor casetext. Casetext  is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber of casetext  since 2019. And I highly endorse their service listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up at case Tech's dot com slash Calpe. That's casetext.com/calp.

Tim Kowal  1:10
And Jeff, before we get going with the with all of our important and timely content. In this episode, I wanted to just thank our audience, I think, Jeff, if your hand is as sore as mine from all the high fiving from all of our downloads this month we had this month is ending. We're recording this the end of October 2022. We have had our biggest month of downloads in the history of this podcast, we just want to send a shout out and thank you to all of our loyal listeners and even one time listeners occasional listeners. Thank you for tuning in. If you find this episode or any episode helpful, please forward it on to a colleague and if you don't find it helpful, please forward it on to opposing counsel.

Jeff Lewis  1:51 
Yeah, yeah, yeah, it's been great. And or alternatively, thank you to Fran Campbell for listening to each episode 1200 times a month.

Tim Kowal  1:58 
That's right. Thank you, Fran. Okay, on this episode, we don't have a guest today. But we occasionally like to update our listeners on some recent important cases. And so here's a here's a quick city bus tour of some of the cases we're going to be covering this episode. First, we're going to cover how COVID restrictions on churches have fared in California and the Ninth Circuit. There's a recent case that talks that nicely summarizes the US Supreme Court holdings on that area, so we'll discuss that. Then we're going to talk about defamation lawsuits involving the management of publicly traded companies and how they're not necessarily slap herbal as arising from a public issue. Then we're going to talk about a civil procedure nuts and bolts issue concerning the 21 day Safe Harbor, if you're going to file a motion for sanctions against opposing counsel, you have to wait 21 days, there's a recent case that really makes that clear, do not file that sanctions motion early and don't seek default without notifying opposing counsel, another civil procedure nuts and bolts case that we'll talk about. And then finally, we're going to talk about an oral how an oral MSJ ruling can cut off the ability to accept to accept 998 offers. All right, so here we go. First case we're going to talk about COVID restrictions on churches, a trial court had hit Calvary Chapel with over 30 $30,000 in sanctions for violating court injunctions that required the church to comply with local COVID restrictions. The church had steadfastly refused to enforce the state and local rules that impose capacity limitations on indoor gatherings and that had required facemask and in the submission of a social distancing protocol, the trial court enjoined the church to follow the protocols on pain of daily sanctions. The church petition the court of appeal for review from the contempt orders and in people versus Calvary Chapel of San Jose out of this sixth district court of appeal. In a published decision, the sixth district agreed with Calvary Chapel. The Court of Appeal there held that the capacity restriction could not satisfy strict scrutiny because the restriction exempted secular activities like bus stations, airports, grocery stores, restaurants, office buildings, retail stores, hair and nail salons. The court said that we are mindful that in Tanden, US Supreme Court case that the Supreme Court stated that at home religious exercise was comparable for purposes of the Free Exercise clause to hair salons retail stores, personal care services, movie theaters, private suites at sporting events and concerts and indoor restaurants. So the court held that that the exemptions here that the local ordinances provided to the secular establishments meant that the churches needed to be exempt as well unless the the ordinance could satisfy strict scrutiny and it could not. In fact, the prosecution did not even dispute that the capacity limitations could satisfy strict scrutiny review. So my take away from The Calvary Chapel case is that if you're interested in how the US Supreme Court has dealt with church challenges to COVID restrictions, the sixth district court of appeal, they're offered a pretty good summary of the various US Supreme Court cases. I believe there were five of them that that overruled Ninth Circuit decisions all in favor of the churches, the US Supreme Court decisions. That is we're all in favor of the churches. In short, courts must be very suspicious where COVID restrictions are enforced as against churches, but where they're exempted against secular establishments. The Constitution assumes that churches are treated as outgroups. This is this is my gloss on it, Jeff, that the Constitution assumes that churches are going to be treated as out groups and that exemptions raise the specter of favorable treatment toward in groups. And this winds up doing is obliterating or lifting the Employment Division versus Smith rule that religious organizations are subject to generally applicable rules. But where there are exemptions in place, then we go back to the pre Smith rule where strict scrutiny review applies.

Jeff Lewis  6:05
Yeah, interesting. You know, Tim, it might surprise you that I agree with your thoughts here. And the results here reminds me of a Second Amendment case we recovered earlier this year from the Ninth Circuit, where it was hard to justify shutting down a shooting range, and not other similar gatherings of people on health grounds. You know, I'm not a second amendment gun guy. I'm very COVID cautious. I'm generally supportive of what Governor Newsom has done over this unprecedented pandemic. But it seems like the guns case and the church cases you just talked about resulted from some government thinking that going to church in person, or shooting practice are not sufficiently important enough activities, when I think the legal focus should be when you're imposing government restrictions is on health risk. And anytime the government's restricting gatherings based on why the purpose for the gathering, it's very troubling. So I appreciate you bringing these cases to my attention. I found them really interesting.

Tim Kowal  6:57 
Yeah. And I think you hit the nail on the head there with when when the government starts giving those exemptions. That's when that's when the scrutiny really kicks in is is that, okay? If if the exemptions are really purely just for absolute necessities, and that's one thing, but once you just start broadening out a little bit, then it starts to get a little bit more problematic, I think, from the constitutional point of view, and Okay, so now, I was told here in my notes that I should make an ultra smooth transition from COVID to defamation, and I'm not able to do it, other than to just tell the audience what I'm doing here, a defamation lawsuit involving the management of publicly traded companies. Jeff, do you want to talk about this case? Heffernan versus Bilzerian.

Jeff Lewis  7:42 
Yeah, let's talk about this unpublished, but I'm bringing it up. It's unpublished. It's from the second district Division five. It's written by Justice Rubin. I love his writing. He's super efficient and clear in his writing and analysis. And I'm not just saying that because I want him to come on the show. But if any of our listeners know justice Rubin, we'd really like him on the show. Alright, let's talk about this interesting slap case. Tim, do you think an actor should be considered a public figure for purposes of defamation law?

Tim Kowal  8:08 
Well, I guess it depends on how popular the actor is.

Jeff Lewis  8:13
Well, what if he is a professional poker player and he has 50 million social media followers is that oh,

Tim Kowal  8:18 
yeah, that that seems like a presumptive public figure. All right.

Jeff Lewis  8:22 
So we're gonna talk about an actor who's a CEO of a publicly traded company, and a professional poker player, and he has 50 million social media followers. Now imagine that same actor told TMZ. The website TMZ run by Harvey Levin, that a former corporate officer was fired for incompetence and negligence. And that former corporate officer, who was the subject of those TMZ comments, turned around and sued the actor in the company for defamation. Tim, would you think a defamation claim made by that former corporate officer based on comments made to TMZ? Do you think it would be considered right for an anti slap motion?

Tim Kowal  9:00
Yeah, I'm gonna guess Yes, me too.

Jeff Lewis  9:03
I would be the first in line to file an anti slap motion there. And that's what happened here. The actor and the company filed an anti slap motion to strike the defamation claim arising from the TMZ statements. And this is a prong one case talks about whether or not the anti slap law even applies not a prong to case. The trial court and the court of appeal was focused on whether the moving party, the company and the CEO, the actor, met their burden of proving that the statement concerned a public issue. And specifically the courts in this case were that they were both concerned with whether the statements about how a publicly traded company is managed is per se. Always, a statement concerning a public issue warranting anti slap protection, or whether statements concerning management of a publicly traded company can be considered more of a private controversy, not worthy of anti slap protection. And the former officer prevailed at both the trial and appellate level and the anti slap motion was held properly denied below and in the court. appeal. Proof that the company was publicly traded alone is not enough alone to demonstrate that the statements concern a public issue, a defamation defendant seeking to invoke the anti slap law has to do more than just say, hey, the company is publicly traded, you got to show how many people could be impacted by the defamatory statement and whether that company regularly promotes itself through press releases to qualify for prong one, anti slap protection. So even though this case is not published includes a great discussion and summary of the cases dealing with this subject. It's just great example of clear analysis and writing in an anti slap case.

Tim Kowal  10:37
Yeah, that's interesting. I am not expert in this area, like you are Jeff, what is the state of the law on this question of how the courts determine what is a public issue? Because that seems to be all important in these in these slap cases? Is that clear? Is there a clear legal rule, a lawyer Lee rule? Or is it is it a whatever the judge has for breakfast or whatever the judge considers newsworthy? And public interest becomes a public interest for purposes of slap analysis?

Jeff Lewis  11:03 
Well, yeah, and let me say this, this is an evolving subject. It's a pendulum that swings back and forth, we had Matthew stringer on the show to talk about a case involving a protest against the landlord outside the landlord's home, and whether that was a private controversy or a public dispute, and it is not clear, it's heavily litigated. In this case, it gave some pretty good guidance about what steps can be taken to establish a public issue as opposed to a private dispute, but this is one of the most heavily litigated aspects of the anti slap practice.

Tim Kowal  11:32
Okay, so if you're litigating an anti slap motion, and it deals with the question of what is a public issue? Take a look at Heffernan vs Bilzerian, for some guidance about how good way that the courts can tend to approach that issue.

Jeff Lewis  11:46 
Let me add one other interesting thing about the case. I just I just have to add, there's a footnote at the conclusion saying that the appellant there or excuse me, the respondent there sought a motion or sought sanctions in the Court of Appeal for the filing of a frivolous motion in terms of that the anti slap motion never should have been brought. And rather than simply disposing of it saying this is a closed case or this is this was or was not frivolous. I just found it interesting that the Division five of the second district deferred to the trial court on whether or not sanction should be warranted for even bringing this motion, just an afterthought.

Tim Kowal  12:19
Did you find that surprising? That seems like I would have thought that that that plaintiffs motion against the defendant for filing a frivolous anti slap has to be brought in the first instance in the trial court, doesn't it?

Jeff Lewis  12:30 
Yes, but I would have thought given the holding the substance of the holding that they would have just said, yeah, it wasn't frivolous. It's a close enough case that it's nice.

Tim Kowal  12:36 
Okay. All right. Interesting case. Thanks for bringing that to our attention, Jeff. Okay. The next case that I thought we talked about is trans con financial versus read in Heliar. This is a case that deals with the 21 day Safe Harbor before bringing a 120 8.7 or one 20.5 motion for sanctions or for filing a frivolous frivolous pleading or motion. So this rule should come to mind. Anytime you're thinking about filing a motion for sanctions, the operative statute requires that before you bring a motion for sanctions under 120 8.5, or point seven, you have to give opposing counsel a 21. Day warning first that's known as the safe harbor provision. How long is this is the 21 day safe harbor for that provision? Jeff,

Jeff Lewis  13:21
how long indeed,

Tim Kowal  13:22
it's, it's it. It's got to be 21 days, I was frankly surprised that that the moving party here didn't wait the full 21 days. And that the also surprised that the court decided that this was worthy of a published decision. But now there is a published decision. This is the transcon financial versus reading Heliar. It's out of the fourth district division to the 21 day Safe Harbor is 21 days can't be less than 21 days a sanction motion filed on the 21st day is not 21 days, that's only 20 days. So the order granting that sanction motion filed on the 21st day was reversed on appeal with Jeff, I had a question about this case. And here's my question. To set it up first the opinion in in transcon financial contain no real analysis how that shortened Safe Harbor prejudiced the plaintiff here the plaintiff was the offending party or the attorney. The purpose of the safe harbor rule is to provide a reasonable time for the offending party to reconsider its pleading. Maybe it realizes Oh, yeah, I really have no grounds for this or this cause of action at least has no grounds I need to file an amendment. So true. The plaintiff was here deprived of one day of the 21 day Safe Harbor period, but there was no motion or no mention rather, in the opinion that the plaintiff would have withdrawn the offending pleading after 21 days. And in fact, I reviewed the docket here and it doesn't indicate the offending party did ever withdrawn into the country. There was a demurrer to the complaint and the plaintiff sued filed the offending motion of offending pleading. They oppose the demurrer. They defended their all their causes of action. So here's my question, Jeff, in order to get a reversal, every appellate attorney knows you have to do two things you have to show there was error, and you have to show that error prejudiced the appellant. So where's the prejudice here, the the appellate stood on its offending pleading, which the trial court had found was indeed frivolous. So the court the court did not say that the safe harbor provision is jurisdictional. So you can't skip the second prong the prejudicial error analysis. The court also didn't say that the error defies review for harmlessness. And there was pretty clearly no prejudice in my mind. So my thought was what is going on here? Why is this? Why was this white this opinion result in a reversal?

Jeff Lewis  15:45
Yeah, I was surprised to read this result, I was even more surprised to see as a published decision, because it seems like the court here conflated the error analysis and the prejudice analysis. They had a section that was labeled prejudice, but the decision states that had the period been calculated properly, the safe harbor period, the trial court, quote, would have been required to deny the sanctions motion, because compliance with the safe safe harbor provisions was mandatory. Well, that's not prejudice. That's just telling the trial court it got its math wrong. Yeah. It seems to me a more honest, prejudicial analysis would have been whether there's any evidence that the sanction side would have withdrawn the offending complaint, you know, a declaration from the plaintiff saying, you know, what, I'm hit with sanctions motions, I usually wait till day 20 or 21, before I consider to withdraw it, and I was going to withdraw it, and I would have withdrawn it, but for the lapse in cutting, cutting the days short. See, I'm perplexed by the analysis here. It seems like if this were the rule, it's more of a per se reversal as opposed to a prejudicial or harmless analysis.

Tim Kowal  16:42
Yeah, yeah, that's that's my thought, too, although I have seen this sort of thing before where there is the court doesn't want to hold that it's a per se reversal, doesn't want to hold that it defies the harmless review, but it will go on and just make a more or less conclusory. ruling that and the error prejudice, the appellant. So we're going to reverse. Yeah. So anyway, just an observation there, but the transcon financial decision is published. So if it was unpublished, I would have advised if you were the moving party here and you and you did think that you filed a motion early to argue that that the appellant at the offending party has waived any issue of defect in the 21 day provision by not arguing that it would have withdrawn after the 21st day. Yeah, yeah.

Jeff Lewis  17:29 
All right. Let's next talk about do you recall earlier this year, there was an effort to recall, the LA District Attorney George Gascon, and it failed due to enough not enough signatures being around to qualify for the ballot.

Tim Kowal  17:41 
Yeah, it was a big, big recall effort year, led by,

Jeff Lewis  17:45 
led by former DEA Steve Cooley, I guess the battle rages on. I had no idea there was litigation pending here. I guess a group of people who are proponents of the recall, have been trying to get in there and to look at signatures and the county recorder registrar has been spoon feeding according to this lawsuit spoon feeding the people who are proponents of the recall, not letting them come in and take pictures of reports not letting them write certain things down and really slowing the review process down. And it was enough to convince an LA Superior Court Judge this week to order LA County Registrar Dean logon to show to show cause regarding increasing his cooperation with this group that wants to examine signatures, and you know, election is days away. Here, we're in late October. I'm not sure if this litigation is going to be resolved before gas cons term is up in December of 2024. And I was wondering if this is resolved in favor of the people that want the recall? Is it possible that by the time this is finally resolved, that gas Khan will face both reelection and recall in the same ballot? And

Tim Kowal  18:51
now that'd be interesting. Yeah, I don't know that election law is one of those areas that just seems very Byzantine to me. In my experience, I've seen that I've signed referendum or recall petitions before and you know, put the wrong zip code or you know, made a typo or an error in the somewhere in the entry and the signature gather will will say, Oh, we have to start this page over again. And you know, there's a lot of a lot that goes into making sure those signatures are collected correctly. Usually these

Jeff Lewis  19:22 
battles I've done a couple of these kinds of cases not recalls, but election law cases and cases involving ballot statements. Usually they're placed on a rocket docket and things are results super quick so that the election can't be delayed. And this seems to be taking a slower, a slower pace.

Tim Kowal  19:36
Well, it's always interesting during election season, we'll see what happens with that one. All right. I've got I've got another civil procedure nuts and bolts case that that I wanted to share with our audience. Jeff, and this is another another published opinion, don't seek a default judgment without notifying the defendants opposing counsel. So if you've served a summons and complaint and the defendant is not answered. Don't jump the gun don't get too excited because attorneys have a duty both an ethical duty and a statutory duty to warn opposing counsel before requesting default in the plaintiff's attorney didn't do that in Chapelle SoCal rental properties versus Chico's. FAS, Inc. That's out of the fourth district Division three. And to the contrary, not only did the plaintiff's attorney not notify defendants counsel that they were going to seek a default counsel instead, in the words of the Court of Appeal counsel, quote, calculated to keep the defendant in the dark in order to obtain that default judgment. The court did not like that one bit. In a so in a published opinion, the Court of Appeal reversed the trial court's order that refused to set aside the Default Judgment and pointedly noted that counsels ethical shortcomings were not to be tolerated. The Court of Appeals said that the trial court's failure to grant the defendants motion to set aside the default was inexplicable, and on remand the Court of Appeal even disqualified the trial judge from hearing the case further. The court was also unhappy with the appellate counsel for refusing to acknowledge the ethical shortcomings below. So you know, of courts, Courts of Appeal, especially like it when counsel kind of comes clean and acknowledges the warts in the case and appellate counsel didn't do that. I noticed that appellate counsel here was even certified appellate counsel, further, further surprising, and maybe that's why the court of appeal was was so unhappy about it, and driving the dagger even deeper into the landlord here the the court noted that the tenant may seek an award of restitution against the landlord, that could mean restoring possession of the property to the tenant appellant or even awarding money damages that was going to be left to the new trial judge when that went back down to the trial court. So bookmark Chapelle, SoCal and consider restitutionary remedies if you are the successful appellant on an appeal. Yeah,

Jeff Lewis  22:04
interesting. You know, you mentioned that there was a mention at the end of the decision of disqualifying this particular judge from hearing the case further, and I've never been absolutely clear on when and under what circumstances you get a per se fried peremptory challenge of a judge following a reversal. I'm wondering, does the fact that the Court of Appeal here specifically directed the Superior Court master calendar to reassign this courtroom? Does that mean that following this reversal, appellant was not entitled to a free peremptory challenge?

Tim Kowal  22:36
Well, I think I think they were entitled to a new to a peremptory challenge if they had not already exercised their peremptory but, you know, under under one 70.6. Where's the subdivision here after an appeal? I think the let me see. Yeah, the motion under this paragraph may be made following reversal, on appeal of a trial court's decision, or following reversal on appeal of a trial court's final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter. I take that to mean if there is a bench trial or maybe even a jury trial. Does it apply after a jury trial as well?

Jeff Lewis  23:13
Yeah, but but but not, but not as to a default a failure to grant motion vacating a default judgment?

Tim Kowal  23:21
I guess. Yeah, we're on a, you know, this was on a more or less a law in motion. I would think. I don't know that you would get it after a reversal following a dismissal after demurrer? I don't think a demurrer is considered a trial. Hmm. Interesting. That is That is interesting. But yeah, that's an important consideration after prevailing on an appeal is, is your peremptory challenge rights under 1.1 70.6. Okay, and then we have that you want to share the true kilo true helo case versus City of Los Angeles. Jeff. Yeah,

Jeff Lewis  23:52 
we'll turn this into another stump Tim case, my favorite kind of discussion. Tim, imagine you're a plaintiff's counsel in a trip and fall case and you receive from the defendant a section 998 settlement offer, your clients can get $30,000 to resolve the case. And as you know, section 998 offers are always held open for 30 days by statute for the other side to accept. Now suppose the defendant in addition to doing that nine nine offer files a summary judgment motion, and the court orally grants the MSJ, ending the case before the 30 day acceptance window lapses. Imagine further that the plaintiff's attorney, or minutes after the hearing on the MSJ hearing ends, fires often a meal, an email, accepting the night offer, and it's well within the 30 day window. So by law, it hasn't lapsed. Tim, do you think an acceptance made under those circumstances is valid? Or do you think that the verbal order granting summary judgment cut off the ability to accept that offer?

Tim Kowal  24:54
I don't think it cuts it off? I think the 30 day window is 30 days, you accept it within the time that And it's a valid acceptance.

Jeff Lewis  25:02
Well, let me give you a lawyerly response. You're right and you're wrong. You're right, because that's how it should be. But that's not how the TREO court ruled. The second district Division Two held that an oral ruling on an MSJ hearing Enza case, and the ending of that case terminates the ability of a plaintiff to accept that 998 offer. The court held that both the text and the purpose of section 998 compelled this finding once the case ends with summary judgment, so too does the ability to accept an offer. I gotta tell you, regarding the purpose of the statute, I kind of agree with the court. You know, the purpose of section 998 is to facilitate settlement and plaintiffs lawyers could game the system waiting for an MSJ ruling, that purpose of the statute would be frustrated. So I get that. But in terms of the language, the language of 998 offers authorizes their use when there's a trial or arbitration of a dispute. And the Court of Appeal hung its hat on the word dispute, saying, Wow, ha, nine aid offers can only be made. If there's a dispute, the word dispute appears in the statute, therefore, absent a dispute, the nine aid offer must be terminated. I don't buy that analysis

Tim Kowal  26:07
like that, either. I mean, just an oral ruling on MSJ, you still have the opportunity for motions for new trial appeal. The dispute is far from over. If the dispute were over, at that point, we would we will be out of a job, Jeff, there'd be no appeals. Yeah, well, let me ask it a different way, then, what if instead of a 998, The Who is this the defendant or the you know, the defendant made just a regular offer and a letter didn't cite 998 just made an offer, except this, this will be held open for 30 days, then I think normal contract principles would dictate that if the offer is accepted within 30 days, then you have a deal. Yeah, right.

Jeff Lewis  26:47 
I tend to agree, because you don't have the statutory purposes of nine nine ADA involved in play.

Tim Kowal  26:52 
Yeah. So that would suggest that that when you make a 998 offer, you're not really operating under contractual principles. This is a you're in a different world. Yeah. Yeah. I thought I thought the 998 cases still said that it's it's still based on contract principles. Hey, this

Jeff Lewis  27:07 
was a recent case. I wouldn't be surprised if it doesn't go up to California Supreme Court. Maybe you and I might need to penned a letter either on the issue of publication or, or whether the Supreme Court should take except review here.

Tim Kowal  27:19 
I agree. I would. I would sign that. Was this unpublished? No, it was published. This was a published case. Okay. Yeah. Well, yeah. Interesting case. I, I agree with you, in your disagreement in this holding

Jeff Lewis  27:32
boy and holy smokes for that plaintiff's lawyer to have the wherewithal after just losing an entire case and MSJ, hearing four minutes later to send that email tried to accept a great creativity there.

Tim Kowal  27:43
No, that's right. Great presence of mine there. Okay. Well, those are the cases that we wanted to cover. Jeff, we had a few few tidbits, some odds and ends to report. Do want to take the first stab at them. Your let's see. Well, I've got one here. Let's see the I want to talk about this. This issue. Not have not a huge consequence, but I thought it was curious that in a press release, that the title of this is at the California Supreme Court, you know, I guess this is my title is The California Supreme Court becoming a stepping stone to think tanks. And what what got me thinking about this is that there was a recent press release in which the Chief Justice Tani Cottontail SACU, he said, I am both humbled and honored to have another opportunity to serve I understand let's see this this role. I didn't set this up very well did I can beat you she's accepting a role as the head of a think tank and trying to find the name of the thing that the PPI see. I didn't write down what that acronym stands for. I'll I'll get that into just a moment. But anyway, so the Chief Justice soon to be former Chief Justice is going to be heading up a think tank. He's committed to the PPI C's nonpartisan mission and efforts to improve public policy in California through independent research without a thumb on the scale. After all, who can say no to facts, it's going to be a independent fact investigation type of public policy, think tank and think tanks are becoming the new landing spot for retiring Supreme Court justices Mariano Florentino Quayle are left the court a year ago to serve as president of the Carnegie Endowment for institution International Peace. So here's my comment on this, Jeff, to the Chief Justice's rhetorical question Who can say no to facts, I would caution that if your facts make ideological enemies for you, then if they cannot attack your facts, they'll just attack you personally. The classic example of this is how anthropologist Napoleon Chignon was systematically smeared first by colleagues who filed accusations with the American Anthropological Association and then through a book and a New Yorker article, alleging that Czech non had used Nazi esque eugenics techniques against the Yanomami tribe. That was the focus of chignons life work in South America. The claims were all debunked yet the book and the New Yorker article are still available, and they make no return. actions or apologies so do the Chief Justice speak careful in that knives out world of academia?

Jeff Lewis  30:06
Okay, I'm not sure how much to add and then I think I have a professor shagged on at UCSB is fantastic professor, but I don't have much to add to that.

Tim Kowal  30:13
And then just just to put the point on the PPI C is the Public Policy Institute of California. Alright, Jeff, and I had another tidbit to hit. Not sure that I do. Okay, here's one about waiver of privilege. I hear this if you forward an email to a hotel employee to print it for you. This was held to be a waiver of the attorney client privilege, and fourth dimension software versus their turistic Deutschland GmbH. is a mouthful, the plaintiff withheld and emailed that was deemed to be protected by the attorney client privilege. And the US District Court for the Northern District of California ruled that the email was indeed privileged but that the email the privilege was waived when the plaintiff forwarded that email to the hotel front desks email address, in order to print it for him. The court noted that the disclosure was not reasonably necessary to maintain the privilege and that the plaintiff emailed the hotels generic email address, which could have been accessed by many people. And the email contained no labels or markers that it was intended to be privileged. So those are some warnings if you're ever going to print out some emails from your next door,

Jeff Lewis  31:32
when I've stayed out of state for depositions, and other states stayed at hotels and used that very method to print exhibits, or, alternatively, I've went a bit out of state forwarded emails to FedEx to print. And yeah, this is I guess, you got to be super careful who you address it to make sure you have plenty of labels or better yet, print everything in advance or bring a home printer with you, I guess.

Tim Kowal  31:55 
Yeah, yeah. And I wonder here if the result would have been different if the email had been sent to a private email address, rather than just to a Dropbox, you know, an all purpose email account that could have been accessed by any number of people, or if the email had been sent with the modified subject line, you know, privileged do not disclose. Yeah, you were these are possible bases, these bases for distinction, but again, yeah, if you want to be safe, bring your own printer.

Jeff Lewis  32:24 
I saw it in our outline here. You added a note, I hadn't read this before that our governor has announced that the state of emergency for COVID-19 is going to end in February 2023. Where did you read that? Tim?

Tim Kowal  32:36
I wish I had kept a Oh, I did. I read that on Ben Schatz blog. So cool. Okay, well, they're California appellate news.

Jeff Lewis  32:44 
Interesting. I'll be very interested to see how that impacts video and zoom court appearances. I've been enjoying the ability for some cases where my clients can't necessarily afford me to drive to downtown LA and appear in person be intrigued to see what happens with video and zoom arguments.

Tim Kowal  33:03 
Yeah, that's right. We had covered in a in a previous episode, that the the statute that allows for judges to set trials to be conducted via Zoom is set to expire in July of 2023. Unless so unless the legislature amends that, then that we may see some of these remote hearings coming to a halt.

Jeff Lewis  33:23
Yeah, yeah. Now, Tim, you had a note here about memes in judicial opinions. Did you want to talk about that?

Tim Kowal  33:29 
Yeah. You know, in a in a June opinion, earlier this year in 2022, a federal judge incorporated a meme into the opinions narrative to emphasize a rhetorical point. The meme is an image depicting two spider men pointing at each other. I have not seen this before, but it's just, yeah, there's two two spider men there. They're pointing at each other. Apparently, it's a very popular meme that's been used by fans, celebrities, even politicians that are used to reference a circumstance where two opponents are engaging in similar behavior, yet pointing fingers at each other. Maybe it's meant to underscore a funny way to to highlight HIP, HIP criticism if that's a word. I think you

Jeff Lewis  34:13
just I think he just revealed on Saturday mornings you never watched Spider Man and His Amazing Friends or the spider old spider man cartoons or maybe your Yeah.

Tim Kowal  34:21
Yeah, he revealed my lack of of comic book expertise. What one of my favorite memes. Jeff is a lawyer asking Zen master the secret to happiness. The Zen master replies that the secret to happiness is to not argue with fools. And then the lawyer replies, I disagree. And then the Zen master replies, Yes, you are right. I think I could put that in the brief with opposing when opposing counsel makes an especially fatuous argument, Jeff, you could.

Jeff Lewis  34:51
I don't know if you should, but you could maybe bury it in a footnote.

Tim Kowal  34:56
Well, let's see there was one other that maybe we'll We'll we'll pass along to our listeners today. There was I saw this reported that Justice Jackson, our newest Supreme Court Justice speaks at oral argument more than two times more than any other justice. For the October sitting Justice Jackson spoke more than twice as much as any other she had 11,003 words across the eight arguments. Next most was just Justice Sotomayor with 5400 Plus, and Justice Jackson spoke more than six and a half times more than the least active justice who is Justice Thomas. The question is posed by Supreme Court scholar Adam Feldman, who, who passed this statistical analysis along how might oral argument questioning style matter to litigants, he offers four possible reasons that the questioning style might matter. One, it gives less time for other justices to interject giving the questioning justice more time to get his or her points and questions across and less time for opposing justices to get their points and questions across. Another reason oral argument questioning style might matter is that it elicits information that the judge feels is relevant to herself and other justices. A third reason it matters is that it can help shoot down counter arguments and provide reasoning to be used in an opinion. And the fourth factor, it can help the Justice signal his or her position on the issue and gauge other justices positions. Now that this was interesting, it's a it was a jarring statistical analysis about how just how verbose, Justice Jackson is during oral argument.

Jeff Lewis  36:37 
Interesting. Yeah, I hadn't come across that. It'll be interesting to see if that relationship is static, or if over time, she speaks shorter or longer during oral argument. Yeah, she

Tim Kowal  36:47 
can she keep up that pace, or we'll shoot. Right. All right. Well, let's wrap it up. With that, Jeff, we want to thank our sponsor once more casetext for sponsoring the podcast each week when we include links to the cases that we discussed we use we use casetext for those links and listeners to the podcast can find a 25% lifetime discount available to them if they signed up if they sign up at casetext.com/CALP.

Jeff Lewis  37:14 
And if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  37:24
Thanks. We'll see you next time.

Announcer  37:26 
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 a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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