Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Podcast

The 9th Circuit’s Skewed 2nd Amendment Scorecard

Judge VanDyke recently criticized the 9th Circuit’s practice of granting en banc review in every recent pro-2nd Amendment decision—and denying review of every pro-gun control decision. And he’s right, says 2nd Amendment litigator Sean Brady. Sean talks with Jeff Lewis and me about his recent amicus brief on that very phenomenon, cataloguing 9th Cir. cases that:
🤔 Rely on the Heller dissent rather than the SCOTUS majority’s holding.
🤔 Hold there is no right to concealed carry even when there is no right to open carry, either.
🤔 Effectively hold there is no right to bear arms, only to keep them.

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Victoria Fuller on Family Law Appeals: Episode 27 of the California Appellate Law Podcast

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.

Victoria discusses with Jeff Lewis and me:
• The unique post-judgment relief available under Fam. Code, § 2122 for fraud, duress, mistake, and financial-disclosure violations;
• Expanded relief on motions for reconsideration; and
• The critical statement of decision process.

Despite these remedies, why do family-law appeals feel like such an uphill climb?
(Answer: because family-court judges have so much discretion even they don’t realize the full extent of it.)

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“Prophet Without Honor”: Sean Brady on Judge VanDyke’s Controversial 2nd Amendment Prediction

“I’m not a prophet,” Judge Lawrence VanDyke wrote in his controversial concurring opinion in McDougall v. County of Ventura. Second Amendment attorney Sean Brady disagrees. Joining Jeff Lewis and me, Sean says Judge VanDyke will be proven correct: the Ninth Circuit in the last several years has granted en banc review of every panel decision favorable to the Second Amendment, and has denied review to every unfavorable decision.

(And a few days after taping, On March 8, 2022 the Ninth Circuit granted en banc review of McDougall.)

Sean explains how the Ninth Circuit, and other circuits, have adopted a line of Second Amendment analysis that follows more closely Justice Breyer’s dissent in D.C. v. Heller than the Supreme Court’s majority. That is why, after writing the opinion for the panel, Judge VanDyke also wrote a concurrence, reaching the same conclusion but using this alternative line of analysis.

But wasn’t Judge VanDyke’s concurrence jarring and off-putting? Perhaps. And it is an unusual style for a judge to resort to. But all of us agreed that Judge VanDyke meant it, quite deliberately, to be at least slightly offensive: an affront to the modern taste for cool and logically seamless forms of persuasion. Judge VanDyke genuinely believes that, however it happened, the train has gone off the tracks, and it will take some shoving and heavy breathing to put it back again.

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The “Speedy” in Speedy Trial Becomes Relative, and the Limits of Scientology Arbitration: A Review of Jan. 2022 Cases on Ep. 25 of the Cal.App.Law.Pod.

Reviewing some 9th Circuit and California appellate cases of note from early 2022, Jeff Lewis and I discuss these juicy issues:

💡 Can the 6th Amendment right to speedy trial be indefinitely postponed due to Covid? (Yes, if the defendant is not incarcerated, says the 9th Circuit in *United States v. Olsen*.)

💡 Can the statutory right to a timely conservatorship jury trial be waived? (Yes, even if the judge kind of pushes you around, so stiffen up that spine!)

💡 Can the Church of Scientology compel arbitration of a dispute arising after members leave the church and allege Scientologist actor Danny Masterson rapes them? (No, but the Supreme Court had to step in and tell the Court of Appeal to take a little more time with the writ petition.)

💡 Can a pre-litigation demand cross the line into extortion, and thus fail to qualify for protection under Civil Code section 47’s litigation privilege? (Yes, if the attorney threatens to disclose the allegations to blow up the defendant’s potential merger.)

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Elegant Legal Writing, with Ryan McCarl

Attorney and author Ryan McCarl joins Jeff and me to discuss his forthcoming book, *Elegant Legal Writing*, and his career through academia into private practice. Ryan tells Tim and Jeff the most common mistakes in attorneys’ briefs, which include legalese (why are you still using legalese?), and providing too little white space on the page — white space bucks up your reader to plod on.

Ryan also offers a thoughtful caveat to my proposal to abolish Rule of Court 8.1115, the “no citation” rule concerning unpublished opinions.

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Rejected Arguments for Lack of Citation, and Other Recent Cases, on Ep. 23 of the California Appellate Law Podcast

Jeff Lewis and Tim Kowal round up some recent California appellate cases of note:

➢ Singman v. IMDB.com, bookmark this published opinion holding that legal propositions in a brief without a citation will be ignored.

➢ Center Street v. Superior Court involving a rare summary affirmance.

➢ Alexi & Ani LLC v. Warren, allowing an attorney sanctions appeal to proceed though the attorney was not listed on the notice of appeal.

➢ Weischadle v. Vo, involving a dissent over whether a court reporter is really needed at oral argument.

➢ In re Purdue Pharma, an OxyContin case in which a bankruptcy settlement was overturned on appeal.

➢ State of California v. So. Cal. Edison, taking the majority view in the split over what kind of collateral orders are appealable.

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A Proposal to Amend the No-Citation Rule, with David Ettinger and Dean Bochner

Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their proposal to amend California Rules of Court 8.1115, the rule that prohibits the citation to unpublished opinions. David and Dean note that, despite rule 8.1115 near-categorical ban, the courts in practice already condone such citations in some contexts, most notably petitions for review.

David also discusses the California Supreme Court’s “shadow docket” — precedential opinions that are issued without full merits briefing or oral argument.

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Winning an Appeal: Our Interview with Author and Attorney Myron Moskovitz

Appellate attorney and author [Myron Moskovitz](http://moskovitzappellateteam.com/team/myron-moskovitz) joins Jeff Lewis and me on episode 20 of the California Appellate Law Podcast. Myron has been practicing appellate law since the '60s, and has curated an impressive collection of effective strategies to win appeals. Some of the topics we discuss include:

- Why appellate courts should provide brief explanations when denying writ petitions.
- Criticisms of Rule of Court 8.1115 prohibiting the citation of unpublished opinions.
- Statements of Decision
- Why the Appellant's Reply Brief may be the most important brief.
- Why you should moot your oral argument before writing your Appellant's Reply Brief.

We also discuss Myron's new book, *[Winning an Appeal](https://store.ceb.com/strategies-on-appeal-2)*. Myron explains this is not a practice guide that just tells you the nuts and bolts of how to appeal, but an actual readable volume with strategies for winning an appeal.

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Should You Take a Writ? Anne Grignon on Arbitration Writs & 3 Tips for Your Next Appeal: Cal.App.Law Podcast ep. 19

Appellate attorney Anne Grignon joins Jeff Lewis and me to discuss her recent win in Banc of California v. Superior Court, a writ petition from an order compelling arbitration. Anne discusses when and why to take a writ from nonappealable orders. The attorneys then turn to private judging generally, discussing Justice Segal's recent caution about the industry's potential overuse of that privately compensated judges, and Presiding Justice Kline's similar sentiment that "private judging is an oxymoron" and is "undermining public justice.” Anne then shares three tips for your next appellate brief, before the three discuss some recent cases, including strategies to consider in approaching statements of decision.

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No, There Is No Eviction Tsunami Coming

There have been many breathless reports of a coming "eviction tsunami" in the wake of Covid. But tenants' rights attorney and appellate specialist Frances Campbell says: take a deep breath. Fran tells Jeff Lewis and me why she thinks there is no eviction tsunami in the offing.

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Who Has Standing to Bring an Unlawful Detainer Claim?

Did you know California landlord/tenant law is not clear on the basic question who has standing to bring eviction claims? Must the owner bring them, or may a property manager? Tenant-rights and appellate specialist Fran Campbell tells Jeff Lewis and Tim Kowal about a consequence of California's narrow standard governing what appellate opinions may be published. The cases deciding this question cannot be cited because they are technically "unpublished." California Rules of Court 8.1105 and 8.1115 create a "speakeasy" body of law: specialists know what the rule is, but they can't talk about.

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California Supreme Court HUD Decision Was Wrong, U.S. Solicitor General Says

US Solicitor General agrees Cal. Supremes misread HUD rules & cut aid to Section 8 recipients. Still, SG says SCOTUS should deny review because HUD about to issue new rules.

Cold comfort to the Section 8 folks whose funding the California high court would have reduced (and might reduce again).

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