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Cal Appellate News for Lawyers (Sept. 25, 2020)

Tim Kowal     September 25, 2020

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

If You Plan Ever to Make a Peremptory Challenge to a Juror Again, Read This

Under AB 3070 now awaiting Gov. Newsom's signature, any peremptory challenge to a juror would be subject to objection as motivated by the juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, "or perceived membership in any of those groups." The latter clause strikes me as an especially likely source of litigation.

There is also a list of other factors that now may *not* be considered in challenging a juror, including "dress, attire, or personal appearance," employment in a field that disproportionately serves members of protected groups, and "apparently friendliness" with a juror who is a member of a protected group.

Upon objection, the party who made the challenge "shall state the reasons the peremptory challenge has been exercised." So be ready to explain your jury selection strategy very, very carefully.

And the ruling on the objection is subject to de novo review on appeal.

If this is enacted, consider this very carefully before your next jury trial.

Filing a Reconsideration Motion Before Appealing? Better Reconsider.

Motions for reconsideration are common after adverse rulings, such as rulings granting Anti-SLAPP motions. And reconsideration motions extend the time to file an appeal. But the Third Appellate District recently held that an Anti-SLAPP order that disposes of the entire case is akin to entry of a final judgment. As the court puts it:

"[T]he May 11 order granting his anti-SLAPP motion and striking the complaint was an appealable judgment, and [] upon its entry and service by the clerk, the trial court lost jurisdiction to entertain or decide a motion for reconsideration."

Why is this significant? Because a motion for reconsideration is not valid after entry of judgment. Thus, there can be no valid reconsideration motion of such an order.

And no valid motion, no extension of time to appeal under CRC 8.108, which plaintiff had relied upon. Result: Plaintiff's appeal dismissed.

This is yet another way you can injure your appellate rights via reconsideration motions. Be wary.

Also: The California Supreme Court decision in Alan v. American Honda strikes again. Alan is an important case used to determine when the time to appeal begins running under Rules of Court rule 8.104. The Third District relies on it here for the proposition that an otherwise nonappealable order -- a statement of decision in Alan; a minute order here -- may be appealable, in the court's discretion. But the oft overlooked conclusion of Alan is that the Supreme Court found it was error to find the statement of decision appealable. Not an abuse of discretion, but legal error.

The high Court in Alan did not explain this conclusion, but presumably it had to do with the liberal policy of “according [the] right [to appeal] in doubtful cases," rather than dismissing appeals on technical grounds.

Yet the Third District, like many of districts, feels it is compelled to treat the minute order before it -- though such orders typically are not appealable -- as appealable. With the result that the appeal is dismissed... on technical grounds.

What the courts say is often different from what they do. Again, be wary.

Marshall v. Webster (Cal. Ct. App. Aug. 27, 2020) C088240. https://law.justia.com/cases/california/court-of-appeal/2020/c088240.html

Why Appeals Are Hard

The appellate attorneys in this case over alleged police misconduct worked valiantly on appeal, and convinced the Third Appellate District that the trial court had abused its discretion in excluding a report critical of the police department's handling of a bank robbery that had left multiple dead, including a hostage.

The bad news: The error was harmless. The Court of Appeal concluded that, even considering the report, summary judgment for the department nonetheless was appropriate. Judgment affirmed.

The opinion has useful discussion of the adoptive-admission exception to hearsay, holding that the party or representative does not need to subjectively believe in the truth of the matter; instead, if there is a "manifestation" of adoption of the matter, it qualifies under the exception.

Koussaya v. City of Stockton, No. C089159 (D3 Sept. 21, 2020). https://lnkd.in/gh_7h6e

Study: Former SCOTUS Clerks Have 'Sizable' Edge in Winning Their Old Bosses' Votes

Researchers from Michigan State and University of Wisconsin find that "an attorney who formerly clerked for a justice is 16
percent more likely to capture that justice’s vote than an otherwise identical attorney who never clerked." Compared to a former clerk for a different justice, the effect is similar, 14-16%.

“In the scheme of social science research, it’s uncommon to see something that moves that much,” .... “We usually are able to see something like a 5% point change, with a little spin on it. But this is a sizable effect.”

The effect plays prominently in 5-4 cases. The authors highlight Peugh v. United States, where Justice Kennedy cast a surprising vote for the 5-4 majority, the only liberal vote Kennedy ever cast in a bank-robbery case. "Perhaps it ought not to have been surprising though," the authors write. "It was his former clerk, Stephen Kinnaird, who argued on behalf of Peugh."

(This is among the many reasons I believe the justices of the Supreme Court should be made to sit on a rotation basis, rather than hold permanent seats.)

The Monty Python Argument Clinic... for Judges

Trial Judge: The sentencing guidelines of 97 to 120 months' prison for downloading 1,000 images of children being raped seems too harsh. Sentence: 12 months' home confinement.

Court of Appeals: No. The sentence ignores the severity and fails to account for deterrence. Vacated and remanded.

Trial Judge: No it doesn't. Same sentence.

Court of Appeals. Yes, it does. Vacated and remanded for reassignment to a different judge.


a group of people sitting around a table

But Can We Still Bill the Client for It?

Forgot to mention an amusing line from that Second Appellate District decision I referenced earlier. Respondent, a special probate administrator, thought it would be a good idea to pick nits over five documents in appellants' appendix, filing a motion to strike them in the Court of Appeal. Turns out the respondent had included four of them in her own trial exhibits, and the fifth was of undebatable relevance. The Court summed up:

"We find plaintiffs' motion baffling and pointless, and no legal authority requires us to grant it. We accordingly deny it, and turn to the merits of the appeals."

I do not think the attorneys will get their fees for that motion paid from the estate.

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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"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

"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

“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

"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

"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

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


"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

"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.)

"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

"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

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