TVA's Tim Kowal is a co-host of the California Appellate Law Podcast.
This episode discusses cases and procedures in appealing preliminary injunctions.
Appellate Specialist Jeff Lewis' biography.
Appellate Specialist Tim Kowal's biography .
Cases mentioned in this episode
ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1
Abbott Laboratories v. The Superior Court (2018) 24 Cal.App.5th 1 (2018)
Amgen v. Health Care Services (2020) 47 Cal.App.5th 716
Ashburn v. AIG Fin'l Advisors, Inc. (2015) 234 Cal.App.4th 79
Bearden v. Ballad Health (2020)
DOE v. Regents of the University of California (2020) 51 Cal.App.5th 531
Fletcher v. Superior Court(2002) 100 Cal.App.4th 386
Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352
Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723
Ligon v. New York (2013) 925 F.Supp.2d 478
Luckett v. Panos (2008) 161 Cal.App.4th 77
Newsom v. Superior Court of Sutter County (July 10, 2020, No. C092070)
People v. HomeAdvisor (May 14, 2020 No. A154960)
People v. Tyson Theodore Mayfield (2020) 50 Cal.App.5th 1096
PV Little Italy v. MetroWork Condo Association (2012) 210 Cal.App.4th 132 (2012)
Welsch v. Goswick (1982) 130 Cal.App.3d 398
Yost v. Forestiere(Jun. 29, 2020 No. F078582)
Transcript
Tim Kowal : 0:01
Although the abuse of discretion standard of review is deferential, it is not sycophantic. Announcer : 0:08
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 Cole and Jeff Lewis. Jeff Lewis : 0:22
Welcome, everyone. I'm Jeff Lewis. Tim Kowal : 0:24
And I'm Tim Kowal. In each episode of The California Appellate Law Podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal. Welcome to Episode Four of the California appellate law podcast. Today we'll be discussing appeals and stays of preliminary injunctions right to attach orders Another provisional remedies and orders subject to immediate appellate review. Jeff Lewis : 1:04
Now, this is an interesting topic for me, because sometimes when a party obtains an order at the outset of a case, like an injunction or receivership, that's a game changer for the rest of the lawsuit. The parties get a preliminary determination from the judge about the merits of the case. And the remedy that is imposed often ends the case pretty quickly in terms of initiating settlement conversations or one side or the other running out of money to litigate the case. But in some cases, the parties may immediately appeal, Tim Kowal : 1:33
They may immediately appeal and not only appeal, but in some cases, they can stay the effect of the order. A preliminary injunction is the example I bring up most often to remind practitioners they need to be appellate minded from the very beginning of the case. Too often appellate strategies only come onto the radar after appeal, but the powerful remedies of preliminary injunctions pre judgment liens and receiverships can end the case before it really begins in my own practice. I have felt both edges of the preliminary injunction sword, I obtained a preliminary injunction for a client once in a trade secrets dispute. And within days thereafter, I obtained a very favorable settlement for my client. And on the other hand, I've seen injunctions imposed against clients that have thrown the case into disarray. Jeff Lewis : 2:17
Yeah, me too. That is why it is so crucial to understand that these orders may be immediately challenged on appeal on the right to take up these interlocutory appeals and potentially stay there. In fact, it literally can mean the difference between winning and losing the case. Tim Kowal : 2:31
You know, just a few weeks ago, I was reading about the stop and frisk cases in New York City years ago. And it's a good example I thought of just how powerful preliminary injunctions can be. That litigation took place in 2013. And it involved two key cases. Floyd versus New York was abroad class action that made a prime aphasia challenge to all stop and frisk in New York City. It had been filed way back in 2008, but because of its broad scope, and the city appeal of the class cert order. No trial was in sight as of 2013, five years into the litigation. One of the narrower related cases was a case called Ligon versus New York. And the Ligon case challenged only the stops around certain private buildings in the Bronx. The Ligon plaintiffs sought a preliminary injunction. In that narrower case, the trial judge granted the injunction in what would prove a case ending 157 page decision that strongly condemned stop and frisk as unconstitutional. Jeff Lewis : 3:34
Yeah, I wonder how long the decision would have been if the more general case had been challenged? I assume the city could have sought a stay of the injunction pending appeal in the in the New York case. Tim Kowal : 3:47
Yes, it did, in fact, and the judge stayed the injunction in light of the appeal in the Floyd case. Unfortunately for the city, the optics were just too damning, and the city was forced to settle and end it stop and frisk program. Without awaiting the decision on the broader class action. Jeff Lewis : 4:03
Yeah, that looks like it was a shrewd strategy. It appears the plaintiffs had an idea the trial judge was inclined to rule in their favor. But the class action was mired in procedural delays. And a preliminary injunction in the narrower case allowed the plaintiffs to give the judge a bullhorn to explain the merits of plaintiff's case to the public. Even while a trial on the merits was still years away. Obviously, that can have a major impact on a case. Tim Kowal : 4:27
So in private litigation, the game changer is usually the injunction itself. But in the stop and frisk cases, it was the forceful preview of the trial court's conclusion on the merits that forced the defendant city to capitulate. And perhaps that's what that's what the Orange County District Attorney Todd Spitzer is up to in his office's litigation against several pharmaceutical companies. The pharmaceutical companies have delayed the release of their generic version of the popular cholesterol cholesterol drug Niaspan. The DEA allege that this violates the state's unfair competition law, and the DEA sought an injunction against further violation. Jeff Lewis : 5:08
I understand that the pharma companies prevailed on the writ petition in the fourth district court of appeal. The court's order limited the jurisdiction of the suit to Orange County, Tim Kowal : 5:17
right. But in the California Supreme Court's June decision in the case titled Abbott Laboratories versus the Superior Court, the Supreme Court reversed the fourth district holding that the district attorney of any of California's 58 counties may sue for statewide enforcement under the unfair competition law. So suddenly, corporations may now find themselves up against 58 new mini attorneys general Jeff Lewis : 5:43
Wow, that's a that's an interesting result. I could see danger of conflicting rulings and races to the courthouse without result. I'm kind of surprised by that. But the unfair competition law does provide for injunctive relief, so I would not be surprised to see a preliminary injunction motion to be on the horizon in these cases. Tim Kowal : 6:03
And if the trial court grants a preliminary injunction in strong terms, as did the New York, the district court in New York and the stop and frisk cases, watch for the pharmaceutical companies to capitulate, even if the order could be stayed on appeal. But aside from such high profile public interest cases like this, the right to appeal and the right in certain cases to stay, a preliminary injunction can change the shape of a case. Jeff Lewis : 6:29
Now, when seeking an injunction, I always remind trial lawyers to pay attention to the fundamentals. There's an interesting preliminary injunction case in California last month involving a lawsuit brought by two California State Assembly Members against California Governor Newsom the case is Newsom v Superior Court will include a link in the show notes. The lawsuit was filed to block an executive order by Newsom allowing voters to vote by mail and the next election. The day after the lawsuit was filed, the plaintiff sought an injunction from the Superior Court to block enforcement of the order. The problem for the assembly members was that the governor had not been served, and lawyers for the Department of Justice were given very short notice by email the hearing on the injunction. The governor and his attorneys did not appear at the hearing on the injunction, and the court issued injunctive relief. The governor sought review by way of a read, although they could have sought review by an appeal and the Court of Appeal reversed. Tim Kowal : 7:23
So this was what we sometimes call a true ex parte hearing. It sounds like where the moving party appears without any notice to the other side, Jeff Lewis : 7:31
right a true ex parte but not complying with the strict requirements for true ex parte days. Incidentally, Michael Shipley has a great blog post on the history of the meaning of ex parte in California Civil Procedure, which we'll post in the show notes suffice it to say the state assembly members who are plaintiffs in this case did not seek proper ex parte relief. The court held that having not been properly notified of the ex parte hearing, the governor did not appear in the respondeat Superior Court. Nevertheless, without any evidence that would support court the immediate need to act at that time, without consideration of the governor's position. The superior court simply signed the proposed order as presented by the real parties of interest. The Newsome case provides a good roadmap for the requirements of going in ex parte to obtain an injunction. Tim Kowal : 8:16
When I read this decision, I was curious to find out what standard of review the third district use to vacate the injunction. Unfortunately, there was no mention of standard of review. standard of review can be a bit tricky in reviewing injunctions. injunctions are commonly said to be reviewed for abuse of discretion. But that's not always the case. Is it? Jeff? Jeff Lewis : 8:36
That's right. Preliminary injunctions are in many ways, like many trials. Sometimes there's findings of fact that are subject to substantial evidence review. Sometimes there are conclusions drawn from undisputed facts which are subject to de novo review, and sometimes they're evidentiary rulings that are reviewed for abuse of discretion. And just like judgments and junction orders involve findings of fact balancing of equities and questions of law So all three standards of review may apply to an injunction order, depending on which aspects of the decision you're challenging. That's why it's really critical to have an appellate lawyer who can help a trial lawyer select an appropriate issue to raise on appeal. Tim Kowal : 9:13
Right. I agree it underscores the need for careful pre motion and pre hearing planning of evidence and the strategic selection of issues for appeal. Jeff Lewis : 9:21
In fact, there's a lot of nuts and bolts about preliminary injunctions, and I like to go over with trial lawyers and it could be easy to miss. Let's cover some of those rules. First, injunctions are immediately appealable pursuant to code of civil procedure section 904. point one that includes orders granting an injunction orders denying an injunction orders dissolving an injunction and orders refusing to dissolve an injunction. That is important because that means if an injunction is entered against your client, you may bring subsequent motions, raising new facts to either dissolve or limit the injunction. And even if that motion is denied, that presents a new opportunity to present your case to the Court of Appeal Tim Kowal : 10:01
and relatedly an order enforcing an injunction is also appealable. That's the Welsh versus Goswick case. A 1982, Fourth District decision and an order modifying an existing injunction also appears to be appealable as well, that's Global Protein Products, Inc. vs. Li 2019. case out of the sixth district. Jeff Lewis : 10:22
A second important tip about injunctions, and it's often overlooked is that an order does not have to say it's an injunction to be appealable as an injunction. cases have repeatedly observed that whether an order is in fact an injunction does not depend on its title, or the form of the order, but on the substance and effect of the adjudication. Many of these cases discussing this point are collected in a case called Luckett v Panos is a fourth district opinion from 2008. Tim Kowal : 10:48
A good example of that can be found in the 2012 fourth district decision in PV Little Italy versus MetroWork Condo Association, a case involving a Sheraton Or dispute. In that case, the trial court issued an order that a prior shareholder election was void and ordered a new shareholder election to take place. The unhappy shareholder appealed. And on appeal, the prevailing shareholder argued that the order was not appealable as an injunction because the order never mentioned the word injunction. The court rejected that argument as disingenuous and reiterated that it's the substance not the form that determines whether the order is an injunction. Jeff Lewis : 11:31
A third often missed rule is that if an injunction fails the bond requirement the injunction is invalid. That requirement is codified at code of civil procedure section five to nine. And in the federal courts, the rule is federal rule of civil procedure 65. Tim Kowal : 11:46
I confess that for a long time, I did not realize how emphatic this rule was. But in fact, if a bond is not set by the order, the order is void. The key case on this is Abba Rubber Company versus Seaquist, a 1991 case out of the fourth district, it is reversible error that case held to issue an injunction without ordering that a bond be posted. I went back and looked at a preliminary injunction order that I had obtained early in my practice. And I was a little alarmed to find that in the blank space I had provided to the court in my proposed order the judge had written in zero. Thankfully, the defendant did not realize that this had rendered the order void, but I'm now more acutely aware that a judge must not fail to set a bond amount. In fact, the injunction we obtained in that case had the practical effect of completely shutting down the opposing defendants business. The purpose of the bond requirement is to mitigate the potentially devastating impact of injunctions by requiring that the plaintiff indemnify the defendant for any losses injunction order would impose. So had the defendant in that case raise the bond issue. My client would have been required to post possibly an onerous bond that could well have proved prohibitive. Jeff Lewis : 13:00
I guess the opposing injunction should then give thought to presenting detailed evidence and argument on what amount of the bond should be and should consider requesting a hearing and an opportunity to present evidence on the amount of the bond and also take care of the time we object to an insufficient bond. California law requires an adjoining party raise any objections to a bond, including the insufficiency of them out within 10 days of service of the bond that's set forth and code of civil procedure section 995 point 930. After 10 days, a party challenging a bond must show good cause for not having made a timely challenge to the bond. Tim Kowal : 13:37
I think that requesting an evidentiary hearing is an interesting idea. On the one hand, there's no right to an evidentiary hearing on a preliminary injunction motion. But if you are representing the defendant in opposition, I would consider asking for an evidentiary hearing to determine the proper bond amount. If the court refuses and sets an inadequate bond as a result that could would be a good issue to raise on appeal. Jeff Lewis : 14:02
Yeah, I agree, although the remedy the Court of Appeal might give you in that circumstance is a hearing only on that issue and the bond or excuse me, the injunction might still be valid pending appeal. But it's interesting tactic. The fourth appellate tip that we wanted to share today with Trial Lawyers for preliminary injunctions is that a preliminary injunction that is mandatory in nature is automatically stayed on appeal. That means if the injunction requires the enjoying party to take affirmative actions, it will be stayed on appeal. But determining whether an injunction is actually prohibitory or mandatory can be tricky. And the question is not often answered merely by the language used in the order. Tim Kowal : 14:42
That's right. Again, the nature of the order cannot be determined by mere labels. an instructive case on this is Hayworth versus city of Oakland. That's a 1982 case out of the first district, some of the touchstones in determining whether an injunction is prohibitive or mandatory or whether it requires a formative action, whether it changes the status quo or the relative position or rights of the parties, in light of the stay associated with mandatory injunctions. And in light of the bond requirement, a moving party should take special care to be very specific and limited when crafting a proposed injunction order. That's because an overbroad injunction exposes the order to many vulnerabilities on appeal. The overbreadth have a preliminary injunction might render the bond inadequate, and the overbreadth might render the injunction mandatory in nature, making it subject to an automatic stay on appeal, and the order might be challenged for bigness. Good point, Jeff Lewis : 15:38
the fifth appellate tip we want to share today regarding preliminary injunctions is to be attentive to mootness issues. If the order requires the enjoined party to take action before the Court of Appeal has a chance to issue its opinion. There's little The Court of Appeal can do about it. In that case, you might want to consider taking a rip because if you take the slower approach of a normal direct appeal, the other side might file a motion to dismiss on mootness grounds. Tim Kowal : 16:04
Absolutely. That's always an important consideration to take up when filing an appeal of even an appealable order might also be a good candidate for taking a read up as well. Let's discuss a couple of recent cases and see how our observations Hold up. The first case is the June decision out of the first district in people versus Home Advisor. Home Advisor is a company that provides various Home Improvement services through its network of service companies. In that case, the San Francisco district attorney sued home advisor for false advertising. The gist of the suit appears to be that home advisor had told customers that its professionals were all background checked, when in fact home advisor was only checking the managers of the companies that partnered with not the service professionals themselves. After five hearings, and after carefully considering the different problems of home advisors, various advertisements, the trial court agreed and granted the injunction. injunction allowed home advisor to still run certain ads, but ordered home advisor to stop running other ads unless accompanied by a disclaimer that the court had adopted from the district attorney. Home advisor appealed and the first district affirmed. The court rejected home advisors argument that the injunction was overbroad because the court had carefully enumerated 24 examples of prohibited ads and 14 examples of permissible ads. The end result the court concluded was a nuanced order that is not overbroad. What I found interesting is that homeadvisor also challenged that the disclaimers were compelled speech. Apparently the trial court had ordered certain ads to be broadcast with disclaimers until January 2019. And home advisor argued this amounted to compelled speech. But in the June 2020 decision, the Court of Appeal held that this argument was moved because obviously January 2019, had come and gone so I wondered Jeff, could homeadvisor have taken the position that the disclaimers made the injunction mandatory in nature and thus stayed pending the appeal? Jeff Lewis : 18:09
Yeah, I agree with that approach completely. Those disclaimers are a classic example of a court compelling action that ought to be stayed pending appeal automatically. And I'm curious why home advisor did not seek immediate review via read the mootness issue also suggests that home advisor really should have considered filing a writ petition to avoid the mootness argument. So the next case we wanted to talk about is Amgen versus healthcare services in April decision out of the second district division one. Amgen is a pharmaceutical company and it submitted a price increase notice to about 170 registered purchasers of Amgen products, and one of those purchasers is California correctional healthcare services. Price Increase notices are given 60 days before the increases are made public. Now, Reuters news made a request under the California Public Records Act. Request for the notices, and Amgen responded by filing a petition for mandamus to block production of the notices. This is known as a reverse Supra action. Amgen invoked the trade secrets privilege of evidence Code Section 1060. Via government code section 6254. And Amgen also moved for a preliminary injunction. The trial court granted the injunction the court found that Amgen had showed the increase notice met the definition of a trade secret, despite the fact that the notice was sent to more than 170 registered purchasers and an unknown number of customers, a pharmacy benefit managers, the California correctional health care services appealed, and while the appeal was pending, the trial court sustained cc hc S is demurred Amgen mandamus petition with leave to a med. But instead of amending Amgen simply dismissed its action and on appeal of the injunction, Amgen argued its dismissal of the action mooted the appeal The second district reached the merits of the appeal. It held that even though the case was arguably moot, because there will be future price increases, and a pharmaceutical company could always obtain an injunction for the 60 day notice period and then dismiss the case after the prices are publicized, the pharmaceutical companies could evade judicial review of this issue forever. So the court exercised its discretion to hear this. the merits of this case, using the line of cases used to hear cases that are likely to recur, yet evade review and the same doctrine. This is the same doctrine that have allowed courts to rule the reproduction abortion cases, despite the fact that most lawsuits take longer than nine months, the same nine month period for a baby to come to term. The court also held that allergens price information was not a trade secret after having disseminated it to over 170 registered purchasers and supply no evidence about how its confidentiality could possibly be maintained in light of that distribution. The Court of Appeal held that in light of this absence of evidence, the trial court abused its discretion in finding the balance of harms favorite Amgen. Tim, I agree with both aspects of the Amgen decision on the question of mootness. And the question of confidentiality. What did you think about the outcome of this case? Tim Kowal : 21:17
I agree with you and I agree with the court as well. I think it's hard to argue confidentiality still obtained given the lack of effort to maintain it. And I also thought it was important to decide the issue given the short timeframe meant that it would always evade review in the future. The next recent case is the June decision in doe versus Regents of the University of California, that cases out of the second district division six. Doe was a freshman at UC Santa Barbara, who was placed on interim suspension pending investigation into allegations of dating relationship violence. But as too often happens in these cases, the university's investigation became interminable. Dough last first one academic quarter and then another doe sued in the Santa Barbara Superior Court and sought a preliminary injunction to lift his suspension. The Trial Court refused, reasoning that doe had failed to exhaust his administrative remedies. So don't took up a writ petition. The Court of Appeal issued a suggestive Palma notice. The court indicated that doe had been prevented from exhausting his administrative remedies due to the school's delay in investigation, which threatened to keep doe in suspension his entire freshman year. A suggested Palma notice as a procedure by which the Court of Appeal more or less hints to the trial court what it's thinking of doing and to give the trial court an opportunity to correct course on its own before the Court of Appeal issues a peremptory writ suggested pollmann notices are rare, but the possibility of a Palma notice suggests the importance of filing full scale preliminary opposition's to repetition so that the Court of Appeal can have your opposition in mind. Before it decides to issue a suggestive PAMA notice the trial court took the second district's hint and held a rehearing on the injunction. The university finally presented two emails that apparently it had it had been holding back that supported its suspension order. They were both hearsay and doe vigorously disputed their credibility due to the paucity of the university's evidence and that there was still no end in sight to its investigation. The trial court granted the preliminary injunction, doe was ultimately exonerated. The trial court then dismissed the action as moot. Doe moved for his fees under code of civil procedure 1021 dot five urging that the litigation had conferred a significant public benefit. The trial court denied that motion and doe appealed. The dismissal was affirmed against him but the Court reversed the order denying his fees, holding that those litigation had conferred a public benefit, in light of the university's Failure to follow its own policies. Finding that obtaining an injunction pending a title nine investigation confirmed a significant public benefit also tends to confirm the importance of a preliminary injunction and of RIT procedures. They represent a backstop to the star chamber proceedings that often occur in university and agency quasi adjudications. Jeff Lewis : 24:19
Yeah, good point. Now let's discuss next a special type of injunction known as a civil harassment restraining order or chro. This law was enacted to respond to stalkers. And these are very special proceedings. It's not typical where you file a complaint and the answer you do discovery, it's just a one off you file a restraining order petition and perhaps the other side can file a response seeking their own petition. parties can get an injunction very easily. And these injunctions are quite serious. The nonprofit the non moving party can be forced to surrender his guns. The non moving party can be entered into a police database, at any violation of the injunction by The non moving party can result in a criminal prosecution. So the stakes are very high. And you get the chro for several years and they can be renewed. The chro can issue on a showing of violence, which I think is appropriate or a threat of violence, which I also think is appropriate. But chro can also be issued on a showing of harassment. And it's this area that is the most vague and most concerning from a First Amendment point of view. Harassment can mean according to the statute, any course of conduct that is intentional, directed at a specific person harasses the person and serves no legitimate purpose of handle these appeals. Normally, they are very difficult to win. It's very hard to overturn a trial court's finding a fact usually these orders are issued based on credibility findings subject to substantial evidence review. Once in a while, you'll get a clean legal issue to argue on appeal. But most of the time I turned down clients asking to appeal these cases, because they are so difficult. It's much easier To go back in after some changed facts or additional facts to try to dissolve or modify the order. Tim Kowal : 26:06
Well, on the subject of civil harassment restraining orders, let's discuss the June decision the unpublished decision in Yost versus Forestiere out of the fifth district in Fresno. In Yost, a mother obtained a restraining order against her daughter's grandfather. Apparently the grandparents had once threatened to abduct the girl. But sometime later, the custody dispute between the girl's parents was resolved with the grandfather son obtaining 50% custody. This tended to make the restraining order rather pointless. So the grandfather moved to dissolve it. But the trial court denied the motion. Jeff Lewis : 26:42
And did the trial court explained how the restraining order was going to be effective now that the grandfather could just get access to his son. Tim Kowal : 26:49
The problem was the trial court didn't think that was the question under code of civil procedure section 533. In order modifying or dissolving a restraining order, maybe Based on a change in the facts upon which the order had been based, but the custody dispute was not one of the facts that the restraining order had been based on. So the trial court found that the resolution of that dispute was not relevant under the statute. And that was why the fifth district reversed. The Court of Appeal agreed with the appellant that the trial court had taken too narrow of view of its own discretion. And the Court of Appeal held that the grounds under Section 533 are not exhaustive, and the trial court may consider other factual grounds. And because the trial court did not consider the other grounds presented, this amounted to an abuse of discretion. Jeff Lewis : 27:39
There are actually some cases that hold that the failure to exercise discretion is itself an abuse of discretion. There's the Fletcher v. Superior Court case involving pitchess motions and discovery as to police officers, personnel records, and Ashburn versus AIG. were no no cherry hearing was held on a petition to compel arbitration Tim Kowal : 28:00
Right and there was a recent fourth district opinion written by Justice Bedworth where he said quote, although the abuse of discretion standard of review is deferential, it is not sycophantic. That's the people vs. Tyson Theodore Mayfield case. Okay, let's move to the topic of receiverships. This is another powerful remedy that may be available early in the litigation, such as by a partner with an interest in partnership property, or a vendor to vacate a fraudulent purchase or a secured lender for the foreclosure of a deed of trust. I haven't dealt with many receiverships in my practice of you, Jeff. Jeff Lewis : 28:35
Yeah, I just had one last week. We opposed a motion for receivership successfully. Part of our success is the courts understanding these are drastic remedies. You're turning over ownership and operation of a company to a third party to a stranger. So the law tends to favor defendants in the here unless the facts are really egregious. What is important to note about receivership orders is they are immediately appealable. Although one might consider a writ, if the keys to a company are being handed over to a complete stranger, Tim Kowal : 29:12
Right, and bear in mind that the appeal does not automatically stay a receivership. If you do need to stay at receivership consult code of civil procedure section 917 point five. That Section requires an order of the trial court and the posting of a bond. If the appeal is affirmed, the appellant will be liable for any damage resulting from the stay. Another preliminary remedy is a right to attach order. A right to attach order and receivership are pretty much the exclusive forms of obtaining a pre judgment lien against the defended. Orders granting a right to attach order are immediately appealable. You can also get a stay of an attachment by posting a bond in the amount specified in the order. That's code of civil procedure section. 917 point 65 While this comes at a cost, it does not require leave of the court. If you file the appeal and a bond sufficient under the statute, the stay is automatic. Jeff Lewis : 30:07
So we've been talking today about a lot of different types of interlocutory appeals involving preliminary injunctions. Another interesting area for interlocutory appeals concerns the disposition of whether a judge is disqualified from hearing a matter based on a peremptory challenge or other ground raised by a party. And this type of issue cannot be resolved by an appeal, either immediately or at the end of the case. The sole remedy for review regarding judges disqualification in a matter is to file a statutory petition for writ of mandate within 10 days of the order. My firm had some luck last month filing a petition for writ of mandate on the handling of a disqualification issue. We had partnered with a trial lawyer had a criminal case where the judge presiding over the case received a challenge alleging facts suggesting that the judge was biased and should recuse himself, the judge rather than handing off the challenge to the master calendar for him. Handling reviewed the challenge himself and issued a lengthy response in writing as to why he did not need to recuse himself. We saw to read and got division five in the second district to issue a stay order and send an OSC as to why rent relief should not issue. Ultimately the trial court back down, assign the matter to another judge for ruling on the disqualification motion, and the matter is now being handled by a different judge. Tim Kowal : 31:23
Congratulations. That's a great result. Thanks. All right. Well, let's move on to some news and other appellate tidbits for this week. First, a Sixth Circuit opinion reminds practitioners of the importance of civility that case Bearden versus ballad health, alleged violation of the Clayton act, accusing a healthcare company of improperly merging with valid health. plaintiff's attorney alleged that the directors of the health care company had surrendered to ballad much in the manner martial patane surrendered France to Adolf Hitler. There are various other accusations but they struck me as more bad Creative Writing than on civil but nonetheless, this is Sick the sixth circuit's advice is apt. It said, there are good reasons not to disparage your opponent, especially in court filings. The reasons include civility, the near certainty that overstatement will only push the reader away, and that even where the record supports an extreme modifier, the better practice is usually to lay out the facts and let the court reach its own conclusions. The court goes on to say the most important reason here is that councils colorful insults do nothing to show that his clients have standing to bring this lawsuit and understanding question the court says plaintiff has alleged only insults not injury. Jeff Lewis : 32:38
Early in my career. I had a mentor by the name of Greg Koffman, a fantastic lawyer and he he often told me and taught me attack arguments, not people and I tried to do that in my practice. Let me share two other tidbits of interest to our listeners. First, there's a nice bit of free legal research software I'm playing with from the makers of case text now they're not a sponsor of this program just playing around with it. It's called parallel search. If you Google parallel search by case text, you can find it I'll leave a link in the show notes. It's a simple web page, like a Google form, where you don't have to install software. There's no logins or credits, and you enter a simple English sentence and you get fast, good results about cases without the headache and delay of logging into Westlaw or Lexus. Tim Kowal : 33:24
After you sent me that link. Jeff, I tried it a couple times on a quick a couple of quick and dirty searches and the results that provided were great. Jeff Lewis : 33:32
Yeah, it's it's it's a game changer. I it's free for now. I hope it'll start charging soon. This second bit of news I want to share as the US District Court for the central district that's federal court here in the middle of California has answer has announced it is suspending civil and criminal jury trials for the time being due to COVID. With no end date in mind, it just said jury trials are suspended which I found pretty astonishing and will obviously impact appellate work here in Southern California. Tim Kowal : 34:02
I wonder if that might be preferable to the practice that I've been hearing, which is that trial judges are setting trial dates with no intention of actually honoring them. Yeah, Jeff Lewis : 34:12
yeah. I suppose it's more honest. But it's concerning, especially on the criminal side. Yes. All right. Well, that wraps up this episode. Tim Kowal : 34:19
If you have suggestions for future episodes, please email us at cow [email protected]. That's ca l [email protected]. On the next episode, we'll cover more appellate decisions and appellate tips. All Jeff Lewis : 34:34
right. Thanks, Tim. See you next time. Announcer : 34:37
You have just listened 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. 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 o. podcast calm That's ca l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again.
