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Cal Appellate News for Lawyers (Aug. 31, 2020)

Tim Kowal     August 31, 2020

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here.

NOT the Schoolhouse Rock Version of Cal. Supreme Court Review.
First, a chilling Third District decision says if a sheriff's deputy asks you to check on a neighbor, omits the fact the neighbor had whispered her call to the 911 dispatcher, with the result that you are near-fatally stabbed in the neck by the neighbor's murderer, you have no remedies except worker's comp.

So how did this get to the Cal. Supreme Court? Petition for review? No. Instead, a third party named John Hsu from Berkeley (not even in the Third Appellate District!) petitioned the Supreme Court to depublish the opinion. Mr. Hsu said he found the Third District's decision so chilling it ought to be depublished.

Did the Supreme Court depublish? No. It granted review. Did the Supreme Court reverse? No. It affirmed. Just another posse comitatus case. (Justice Groban, joined by Justice Chin, dissented: they think the deputy's statements & omissions matter.)

A bizarre case.

Links: https://lnkd.in/gTedxUd
And: https://lnkd.in/gitg5_J

Preliminary Injunctions Covered on the CAL Podcast:
In a recent episode of the California Appellate Law Podcast, Jeff Lewis and Tim Kowal tell trial attorneys how to get an edge on their next preliminary injunction motion. www.CALpodcast.com. Highlights:

  • In college Title IX investigations, the process itself may become a form of punishment. Successful use of preliminary injunction & writ procedures to extricate from "star chamber" proceedings may give a right to attorneys' fees under CCP 1021.5.
  • Did the trial court ignore important factors in making factual determinations? Then it may be PER SE REVERSIBLE on appeal.
  • Is the injunction MANDATORY in nature? Then it is STAYED on appeal.
  • Did the trial court fail to condition the injunction on a bond? Then the injunction is VOID!

Please tune in & share.... And please SUBSCRIBE in your podcast app!

Summary Judgment Appellate Tip:
In our previous episode of The Cal. Appellate Law Podcast (www.CALpodcast.com), Jeff Lewis and Tim Kowal covered Mosley v. Pacific Specialty Ins. Co. (E071287), a May decision out of the Fourth District, which reversed a summary judgment based on grounds never raised in the trial court. The decision offers comfort to any trial attorney who has awoken in the middle of the night, bolt upright, awash in horror, realizing a key argument was left not raised at the hearing the day before. Because, as Mosley nicely explains, it is for the party *moving* for summary judgment to carry the burden that judgment is required AS A MATTER OF LAW. A legal argument can never be forfeit by the nonmoving defendant's failure to raise it in opposition, because that goes to the moving plaintiff's initial burden.

But now we have learned that, a month earlier in April, the Second District issued a decision in People v. Braum (B289603, B289604), upholding a summary judgment against a defendant landlord, finding the landlord's legal argument -- challenging the city's legal authority to require a landlord to evict a tenant -- was forfeit because not raised in the trial court.

Curiously, the court published the decision...except for that analysis.

A petition for review has been filed. (And, unfortunately, was recently denied.) 

The statement of decision is a key time to bring in appellate counsel.
In a bench trial, the all-important statement of decision fills the empyrean role of the jury verdict. If you did not outline your appellate issues in the statement of decision, then I have bad news for you, because: yes, you did -- only, you may have outlined them very poorly. A nice recent blog post on this technical and tripwire-rich exercise discusses this:

The statement of decision is a key time to bring in appellate counsel. The crucible of trial often reveals new issues or subtleties in the case that may be raised on appeal. But if they are not raised in a statement of decision... forget about it!

An appellate trap for the unwary -- Designating the Record
If you designate less than all of the transcripts from trial, you have to specify the issues you will raise on appeal. This is not easy, because the designation of record occurs very early in the appeal -- just 10 days after the appeal is filed! If have seen lawyers step in this trap before, but now the trap has teeth: The appellant's failure (after respondent's objection) "precludes him from raising ANY points on appeal"!
Obey 8.130(a)(2) or else...
Appellate Bonds
Here is a nice article on the kinds of bonds and stays available pending appeal. https://lnkd.in/gVW-7_7   Hot tips for appellants:

  • If attorney fees have been awarded, the costs of a bond may be less than the exposure to judgement enforcement fees...something to consider.
  • Always have a CCP 918 motion ready to hand. (Email me, I would be happy to furnish a template.)
  • Consider a personal surety bond. Though you cannot bond yourself, you may transfer assets to have a spouse post a bond! Buzgheia v. Leasco Sierra Grove (1994) 30 Cal.App.4th 766

Appellate Bonds Without Collateral
If you represent clients on appeal, did you know you may be able to get an appellate bond without posting any collateral? I was pleasantly surprised when Arturo Ayala at CSBA helped our client obtain an appellate bond recently based solely on our client's financial position, without having to put up any assets.

It's these little details that can start to move the needle for your clients on appeal.

Law-and-motion in the time of Covid:
Should trial courts keep hearings on discovery motions & especially MSJs on calendar, for the good of fostering mediation & settlement? Good discussion on this Daily Journal podcast episode at about the 24 min. mark. https://lnkd.in/ggQ8Spa

This may be useful:

When “a local court [seeks to] advance[ ] the goals of efficiency and conservation of judicial resources by adopting procedures . . . deviat[ing] from those established by statute, [it] thereby impair[s] the countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding.” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1353.)

(But: the Cal. Supreme Court recently denied our petition for review of an order indefinitely deferring ruling on an MSJ.)   Courts in the Time of Covid
Dispatches from some trial courts indicate that many departments may be too small to accommodate socially-distanced 12-person juries, and that parties may be asked to stipulate to 8-person juries, or else be transferred to a different department or courthouse. You will need to consider how this impacts your clients' ability to get a timely trial. But remember, Article I, Section 16 of the Cal. Constitution entitles litigants to a jury of 12:

“In civil causes the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.”

On Jury Waivers
When civil litigators finally get back to jury trials, expect a bevy of new local rules -- and even "local local" rules. But don't worry: missteps on such non-statutory rules cannot result in a jury waiver. Under Article I, section 16 of the California State Constitution, a jury trial can be waived only on grounds authorized by statute. Failing to comply with court or department rules may get you into hot water with the judge, including sanctions -- but striking a jury demand is per se reversible error.
Chen v. Lin, No. JAD19-10 (L.A. Super. App. Div. Nov. 14, 2019)

Eviction Moratorium to End Sept. 1
The Judicial Council recently voted to end the emergency rules halting evictions and foreclosures in California. Lawmakers had requested the Judicial Council extend the rules. But Chief Justice Cantil-Sakauye said -- absolutely rightly, IMO -- that it’s now up to the Legislature and Governor to act:

“The judicial branch cannot usurp the responsibility of the other two branches on a long-term basis to deal with the myriad impacts of the pandemic. The duty of the judicial branch is to resolve disputes under the law and not to legislate.” https://lnkd.in/gnM_FAq

Five months is more than enough time for lawmakers to act. https://lnkd.in/gzEMYPY

The Oxford Comma Is the Law of the Land
Among those who fail to respect the Oxford comma are lawmakers, sloppy thinkers and sloppy writers.

(Do you see what I did there? We Oxford comma advocates are a blast at parties!)

"A lawsuit over the absence of an Oxford comma was settled for $5 million"

A cardinal rule of brief-writing: Know your audience ...and for petitions for review at the Cal. Supreme Court, that audience includes... law students.
When Specious Strategies Work...
Will this one?

Plaintiff judgment-creditor gets this devilishly devious idea when the corporation defendant appeals: Why not just get a receiver appointed, and suggest that the receiver simply abandon the appeal, as an asset of the receivership?
So plaintiff does, and receiver does.

Will it work? Stay tuned.

Supreme Court Limits Regulatory Penalties Against Nursing Facilities A divided Supreme Court in Jarman v. HCR ManorCare limits private remedies against skilled nursing facilities, wiping out almost all of the $95,500 in statutory damages — $250 for each of 382 regulatory violations — awarded by a jury.

Are judges making light of making law?
Some judges are making a habit of deploying light-hearted pop-culture references in judicial opinions. There is an interesting conversation about this in the Pro Say podcast (ep. 151) at the 33 min. mark. (https://lnkd.in/gj9tmbW)

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 CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


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