Legal News and Appellate Tips

Here are some legal trends and trivia from this week:

• 💉Justice Neil Gorsuch called COVID emergency orders among “the greatest intrusions on civil liberties in the peacetime history of this country.” Justice Gorsuch suggests two lessons: “One lesson might be this: Fear and the desire for safety are powerful forces….[And secondly, the] concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government….Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate.” Gorsuch concludes: “Make no mistake—decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”

• 👉You don’t have to make a posttrial motion to preserve issues you lost in an MSJ, says unanimous SCOTUS decision in Dupree v. Younger

• 💡Justice Bedsworth on citing unpublished cases: “unpublished federal authority is citable. Whether it will do you a lot of good is another matter.”

• 🤚Ninth Circuit Reinstates Challenge to State’s Loyalty Oath.

• ⏲️Eighty percent of Supreme Court arguments went over their allotted time this term, for an average of nearly 30 additional minutes.

• 🎉May judges attend law firm parties? California Supreme Court Committee on Judicial Ethics Opinions has a draft formal opinion addressing whether a judicial officer may attend a celebration hosted by a law firm. Comment: Some people won’t be happy until we make judges live in a soundproof booth.

The film production in which a prop-gun-wielding Alec Baldwin fatally shot the cinematographer spun off a civil lawsuit in Salveson v. Kessler (9th Cir. Mar. 29, 2023) 22-55472 (nonpub. opn.). But as the 9th Circuit holds, the civil case—involving a producer’s claims concerning his former lawyer’s business and tax practices—holds out no issues of public interest.

So uninteresting were the claims, in fact, and so devoid of protected conduct, that Judge Bress separately concurred to muse why this appeal should have sucked up a year of everyone’s time, while the case languished under a pointless appellate stay.

Judge Bress pointed out that the anti-SLAPP law, and the immediate right to appeal from denials of anti-SLAPP motions, are procedures specific to California law. The 9th Circuit has its own procedures, and under those procedures, there is no immediate right to appeal from SLAPP denials. (There is no federal SLAPP procedure at all, for that matter.)

“This piecemeal appeal, which our precedents unjustifiably allow, has resulted in a totally meritless anti-SLAPP motion delaying this litigation by nearly a year. That is neither sound as a matter of law nor sensible as a matter of litigation management.”

The 9th Circuit rule here—allowing immediate appeals and appellate stays after denials of anti-SLAPP motions—may be modified only upon U.S. Supreme Court decision or by the 9th Circuit sitting en banc. It is safe to say that Judge Bress is a reliable vote to overturn the rule.

This course provides an overview of designating the record and preparing the Appendix or Excerpts of Record for federal appeals. Preparing the record is critically important to success on appeal, but is often overlooked by attorneys, who may come to their paralegals shortly before the briefing deadline. Both attorneys and paralegals should be aware that the process is time-intensive. Not only that, but now that the courts have entered the digital age, the courts require the Appendix or Excerpts of Record to conform to demanding technical specifications. This is a daunting undertaking by both the paralegal and the attorney, and paralegals can add tremendous value by understanding the process and encouraging their attorneys to plan ahead.

If you are setting out on a federal appeal, you will need to prepare the record. To help attorneys and paralegals in this task, you can read my article, “Preparing the Appendix in Federal Appeals,” in the latest issue of Facts & Findings, published by NALA.

You can be sanctioned for lying to a court or from failing to disclose key authorities. That’s obvious. But two recent courts remind the bar that appellate sanctions may be imposed for making bad arguments.

One of those cases, Pop Top Corp. v. Rakuten Kobo Inc. (Fed. Cir. July 14, 2022) No. 2021-2174, imposed a whopping $107,000 in appellate sanctions. But there is an interesting dissent noting that sanctions may have a chilling effect on the right to appellate review.

The other court did not issue sanctions, but published its stern admonition to the appellant in Shiheiber v. JPMorgan Chase Bank (D1d2 Jul. 26, 2022) No. A160188, as a warning to other attorneys against “clog[ging] our appellate docket” with meritless appeals. Though the court did not issue sanctions, the court noted this was because the respondent did not file a motion for sanctions.

Comment: Juxtapose the policy observations in Shiheiber with Judge Newman’s due-process observations in Pop Top. After reading Judge Newman’s dissent, the parting observations in Shiheiber no longer sit right with me. The court’s frustration with meritless arguments and substandard advocacy is justified. But the courts should direct their frustration at counsel’s lack of diligence, without suggesting comparisons to other types of cases in the court’s docket.

When the plaintiff defeats a meritless SLAPP motion, the plaintiff still may have to face a meritless appeal.

That’s what happened—twice—in the now-seven-year-old case of Flo & Eddie, Inc. v. Pandora Media, LLC, 2022 WL 1800780 (9th Cir. Jun. 2, 2022). The founders of The Turtles sued Pandora for failing to pay for playing Turtles songs. Pandora filed anti-SLAPP motions arguing playing music was protected speech. Two appeals and seven years later, Pandora lost.

Judge Daniel Bress wrote a concurring opinion saying this is too much to take. The federal rules do not provide for the appealability of denials of anti-SLAPP motions. Instead, they have been held to be appealable as “collateral orders.” But a collateral order is an order that, among other things, is “completely separate from the merits of the action.” Will v. Hallock, 546 U.S. 345, 349 (2006). And an anti-SLAPP motion explicitly requires the moving party to prove the complaint lacks merit. So, by definition, an anti-SLAPP denial is not a collateral order.

(I tend to agree with Judge Bress.)

Filing an appeal is not hard. There are only a few basic requirements. But in Ditech Financial LLC v. Talasera and Vicanto Homeowners' Association, 2021 WL 1718214 (9th Cir. Apr. 30, 2021), appellant failed nearly all of them.
To prepare a valid notice of appeal, the notice simply needs to identify the appellants, the judgment being appealed, and the appellate court. Fed. R. App. P. 3(c)(1)(A)–(C). The appellant listed the wrong parties on the notice. And also the wrong case number. When the notice came to describing the judgment being appealed from, appellant listed the wrong judgment, too. The date of the judgment: also wrong.
Presumably, appellants correctly identified the Ninth Circuit as the court to which the appeal was taken.
Appeal dismissed.

Federal Practice Tip: California practitioners who are frequently told that the deadline to appeal can no-way-no-how be extended under any circumstances may forget that the deadline may be extended in federal appeals by motion to the district court. The Ninth Circuit here notes that appellant's amended notice of appeal might have saved its appeal had it sought the requisite extension of time to file it under Fed. R. App. P. 4(a)(5).