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California Appellate Law Podcast - Jeff Lewis

Cal’s initial disclosures, minimum discovery sanctions, & some ¯\(ツ)/¯ cases

Tim Kowal     January 16, 2024

California law now provides for initial discovery disclosures. Get a template handy for your upcoming cases. And watch out for the new minimum $1,000 sanction for discovery misconduct.

And some recent cases:

  • The definitive answer whether orders on motion to enforce settlements are appealable is: Nobody has any friggin’ idea.
  • And the answer on how to get review of orders on contempt attorneys' fees is pretty much the same.
  • And after scouring cases for months, Tim finally found a reversal based on an evidentiary ruling…and it’s unpublished. And there’s a dissent. (And the dissent may be better reasoned than the majority.) So challenges to rulings on evidence are still losers.
 

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

 

Transcript:

Announcer  0:03 
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 Kowal and Jeff Lewis.

Jeff Lewis  0:17 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal both Jeff and I are certified appellate specialist. And as uncertified podcast hosts we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast helpful, please recommend it to a colleague. Yeah, before

Jeff Lewis  0:34 
we jump into this week's discussion, we want to thank casetext for sponsoring our podcast casetext is a legal technology company that has developed AI backed tools to help lawyers practice more efficiently since 2013. Casetext relied upon by 10,000 firms nationwide from solo practitioners to amla 200 firms and in house legal departments. In March 2023. Casetext's launch co counsel, the world's first AI legal assistant, co counsel produces results lawyer can rely on for professional use all while maintaining security and privacy. listeners of the podcast enjoy a special discount on case Tech's basic research at casetext.com/calp. That's casetext.com/calp. And I haven't played with it yet. But case decks co counsel just announced a discovery objection tool where you can upload form interrogatory keys and things like that. It'll help you identify applicable objections if you choose to

Tim Kowal  1:25 
object. Well, any AI that would make discovery more palatable and less aggravating. We'll be very well welcome. All right, Jeff. Well, it is January. It's time for our first cases and tidbits episode. I've got a I've got a half dozen or so cases to talk about. You've got some cases to talk about. So let's get right into it. And let's start with the first one. Ask yourself if anyone asks you is an order granting a motion to enforce a settlement appealable or not. Now you can tell them definitively that no one has any friggin idea. The recent case in this back and forth volley about are they are aren't they appealable is house versus Skanska, US Civil War, California district, kind of a strange name. I didn't get back and get a sense of who that or what that defendant is, but orders on motions to enforce settlement agreements. Just by way of background. They're not expressly listed in the appealability statute CCP nine oh 4.1. But appellate courts often treat them as functionally equivalent to a judgment. But that didn't happen in house versus Skanska. That's January 2024. It's a non published opinion. But that court dismissed the appeal on grounds of non appealability. The parties to this case, it was a trespass and nuisance case they reached a settlement, and the defendants were supposed to pay the plaintiff $50,000. But then the parties couldn't get the deal over the finish line, the plaintiff decided that the defendant had breached and wanted to get the litigation back on and get a trial date set and do discovery. And she demanded $471,000 already set the case for a trial. And the trial court said I don't want any piece of this case, you guys already settled and upheld the settlement. And both parties had confirmed the settlement on the record. So the court was within its within its jurisdiction discretion there. And the granting the defendants motion to enforce under six, six 4.6, the court ordered the case dismissed upon payment of the funds by the defendant. So the defendants still had to pay the $50,000 settlement. And then the plaintiff appealed. Before that happened. The second district dismissed the appeal holding that the order granting the motion to enforce the settlement was not an appealable order, no judgment had been entered. And the order was not among those listed in the appealability statutes. So no dice. And the court noted that an order may still be appealable if it has the substance and effective and appealable order. But here, that wasn't the case, because the defendant could just pay the judgment, in which case the case would be dismissed, and then the plaintiff could appeal. But Jeff, what's what, what got me wondering about this case is find the defendant I'm thinking to myself, Well, why not just not pay this because the plaintiff is not going to insist that I pay it the plaintiff wants to have a trial. So the plaintiff is not going in. On the other hand, if the plaintiff insists that the defendant pay, isn't that acquiescence in the settlement or in the judgment that would ultimately be entered, thereby waiving or forfeiting the right to appeal? What do you think, Jeff?

Jeff Lewis  4:29 
Yeah, I think that's right. I was having trouble following this logic of this opinion isn't mean that this is not an appealable order. But if the case were somehow to continue, and if a judgment wherever entered in this case, then this particular action by the trial court could be reviewed from that judgment. Was that the gist of what the court was saying here? Yeah,

Tim Kowal  4:47
yeah. Could be appealed from the ultimate judgment. But there have been previous cases, including an A, let's see, there was a there was an unpublished case a couple of years ago in 2021. That talked about a publish case, dealing with an order denying a motion to enforce a settlement, the Court held that there was no functional difference between an order granting and an order denying in that case. So it held that even though it was denying a motion to enforce, it was still appealable as though it were as though it were granted. And even though a judgment had not been entered, now, you're supposed to as a matter of practice, a motion to enforce a settlement agreement becomes a judgment or it's supposed to be reduced to a judgment that way, there's no question about appealability. But often attorneys just in parties just forget to do that, or the court neglects to do that. And so all you're left with is the order enforcing or not enforcing the settlement, and leaving the question of well, notwithstanding the title of the document, because that doesn't control Is it final, and that's what governs whether it's appealable, and cases have just been all over the place on whether those orders are final, it really just comes down to the circumstances of the case, go back to my my lead on this case is our motions or granting or denying motions to enforce settlements, appealable, no one has any friggin idea. It's all on a case by case basis.

Jeff Lewis  6:05
So I guess to be safe, if you're faced with such a case, you take a writ. If the writ is denied within the 60 days, you file an appeal. And if it's dismissed, like this case was that then you wait for perhaps some final judgment. And if that doesn't happen, then you tell your client they're out of luck. Is that the process? Yeah,

Tim Kowal  6:24 
that's the basic process. And then all the while also consider what are the ways you can make a record showing that this is final that you, there's really nothing else you can do? And if I were the plaintiff here, I'd be arguing and making a record on the fact that look, I can't demand that they pay the settlement, because my position is that there is no settlement that it's off. So how can I do that without compromising my position? I need a ruling. This is basically a final ruling on my position that there is no settlement. Anyway, that's I think that's about all you could do. This seems like a puts the plaintiff put puts the plaintiff in a tough spot and puts the defendant in, in maybe a strategically advantage position. All right, so let's say let's get to the next case. Jeff, you want to talk about this one? Concerning and as an Elon Musk angle to it? Okay,

Jeff Lewis  7:09 
I think you did the right up at all. I'll give it a whirl. Elon Musk is toying around with putting implants in monkeys to see controlling brains in terms of medical devices, and somebody or the other sought a public records act request relating to a public universities rule in the research relating to these robot monkeys. And so there was a petition for disclosure of these documents. And in the context of that legal proceeding, discovery was served in the discovery went beyond the question of, does the public university have an obligation to produce these documents and went into broader areas? So this decision is and we'll put a link to this in our show notes. The Regents of the University of California versus Superior Court of YOLO. County dealt with the issue is what is the proper scope of discovery in a petition proceeding to enforce the Public Records Act? And the answer is narrow, it's narrowly construed by the court to deal solely with the issue of what is the public entities obligation to produce documents or other grounds to withhold documents, anything beyond that is not necessary discovery. And so the Court of Appeal here, the third district issued extraordinary relief in response to a petition by the public university.

Tim Kowal  8:26
Yeah, what stood out to me, Jeff, is that, you know, it's it's unusual for appellate courts to get interested in discovery disputes, and and especially on on a risk basis. The court doesn't let things you know, jump to the front of the line on a writ basis, even though it's a statutory written. There's no other opportunity for review. But still, it's a discovery dispute. Why did the Why did the Court of Appeal decide to reach down to handle this one, and it wasn't a clear issue where the trial court had just gone way got out way over its skis. This was a discretionary call on whether some of this information was was relevant or not. And you could see reasonable minds disagreeing on this question. In this case, I just thought it was unusual that the Court of Appeal went out of its way to to make a ruling and reverse well think about

Jeff Lewis  9:09 
this most discovery disputes are reviewed at the end in terms of appeals from the judgment by the losing party, a proceeding to enforce the Public Records Act by way of a petition is only reviewed by extraordinary read, it's a statutory read. It's one of those exemption exceptions you don't appeal. And so perhaps this court of appeal was cutting to the chase thinking, well, we're not likely to have an appeal from a judgment here. You never have an appeal from a judgment. There's going to be an extraordinary writ either now or at the end. So we might as well deal with it. Now. I find that explanation credible because explanation they give that should this court not intervene at this juncture is anticipated that the case will continue to be bogged down by additional protracted discovery disputes that would apply to just about every piece of civil litigation that there are discovery disputes. So that's my take on it. Yeah.

Tim Kowal  9:58
Okay, next case. Is medulla versus Mojave Radiation Oncology Medical Group involves using a motion eliminate as a motion for summary judgment. Now, Jeff, when I was was growing up as a young attorney, I was always told that you must not use a motion eliminate to try to adjudicate issues or keep out entire groups of evidence on on legal claims on legal grounds, because that was just the equivalent of a motion for summary judgment. And we have very particular statutes, notice statutes and force 437 C of the Code of Civil Procedure that govern motions for summary judgment, so you can't do it. But it turns out, you can do it, the judges will let you get away with with doing and that's kind of what happened in Missoula versus Mojave radiation. There really is nothing preventing the trial judge from adjudicating issues via a motion eliminate and the employee plaintiff here pounced when the employer had filed a motion eliminate to exclude evidence probably brought up on the same training that that I got as an attorney. The motion eliminate tried to exclude evidence that the breach of the employment contract here caused any damages. Now wasn't just some evidence of damages was objectionable on evidentiary grounds? No, no, they tried to exclude all evidence of damages on the basis that there have been some prior suit where some similar issues were adjudicated. So they were bringing a kind of a an estoppel, claim preclusion or issue preclusion argument. Now, the employee thought that without any evidence of damages, my entire claim gets dismissed. And that sounds an awful lot, lot like adjudication, summary adjudication, and you're supposed to have statutory protections under 437. C, the summary judgment statute, and so it wouldn't be appropriate to just shortcut all those by adjudicating it via a motion eliminate, but in some cases, it is okay. It turns out for the trial court to use and eliminate motion, like a summary judgment motion, it shouldn't be used as an Enron, but generally speaking, quote, eliminate motions are disfavored in cases in which they are used not to determine in advance the court's projected ruling if presented with an evidentiary objection during trial and are instead used quote to serve as a substitute for a dispositive statutory motion. That's the that's the case law that I would that I would cite, if I were the party opposing the eliminate motion, but here, the employer actually had filed and MSJ on the same ground. So the appellant had had the protections already. And the trial court told the employer to bring the motion, again, as a motion eliminate. So that's what the employer did. So there wasn't any harm here. I think this would be a good case, if it wasn't unpublished to cite in a normal case where a word in effect summary judgment motion was being brought as an eliminate motion for the first time and say, hey, the courts only let this let the moving party get away with this when they had previously brought it as an MSJ. But that's that's not the case in this new case. So it should be denied on procedural your regular irregularity grounds. Yeah,

Jeff Lewis  13:06 
yeah. I mean, this case is an invitation for defense firms to file motions in limine. A as MSJ is whenever they file an MSJ, that's denied on either procedural grounds or close calls, just reskin it and refile this motion eliminate

Tim Kowal  13:22 
Yeah. Then here was one other one other interesting thing after getting dealt with the devastating ruling, barring all her her damages on the motion eliminate the the appellant here did a savvy thing and decided to forego the waste of a trial. So after so, so imagine the the procedural context here, Jeff, there was this motion eliminate brought that summarily summarily adjudicated damages. And the plaintiff said, well, the trial would be a waste. We're just going to stipulate to the entry of a judgment against me or basically a judgment of dismissal. And once the figuring that once the adverse MRL had killed an element of the plaintiffs claim it was equivalent of a of a dismissal there is authority for that, in volando versus Waterman convalescent hospital. A 2010 case that holds the stipulated judgment after an adverse motion eliminate ruling is appealable. It always makes me nervous, Jeff, the idea of stipulating to a judgment because we know the normal rule is that you cannot appeal from a stipulated judgment. But here's an important exception. If you get a devastating ruling before a trial, such as on a motion to eliminate you might you might decide, foregoing the waste of a trial. Once your case has been entirely hobbled and to just stipulate to entry of a judgment and then appeal from the devastating ruling. What do you think? Yeah,

Jeff Lewis  14:43
well, let me just let's think about this case, in particular, by agreeing the party that prevailed on the motion laminae by agreeing to the stipulated judgment is basically agreeing with the loser. Say this was a killer MSJ like ruling and By doing that, the the person who won the motion lemonade is playing into the hands of the appellant loser of the motion lemonade, who would later be arguing that this was the equivalent of an MSJ. If I were in this position, I don't know that I would stipulate to a judgment rather, I would let it play out at trial be very short trial, and then be able to argue on appeal. There was a trial wasn't a killer motion, lemonade didn't have the functional equivalent of an MSJ because we had a trial. So

Tim Kowal  15:26 
that's a good thought. Jeff, when when I said that I was that the idea of a stipulated judgment gave me heartburn, I was putting myself in the shoes of the plaintiff who had just lost the party, who would be stipulating to a judgement and would be relying on the appeal process. But you turned it around and said, we'll find the prevailing defendant who just won that MTL, I know I'm already going to win, but I don't want to let on that that that the result is a fait accompli because of this devastating ruling. So no, I'm not going to stipulate it's a completely different reason. Different different houses but yeah, you're right from from both sides. I think it would give me heartburn,

Jeff Lewis  16:04 
defendants matter to Tim.

Tim Kowal  16:07 
All right, here's the next case involves a fight over short term rentals. There was a ban over short term rentals issued imposed in the city of Rancho Mirage and because like many cities with neighbor neighborhoods were unhappy with short term rentals Rancho Mirage issued a ban on the practice and there was a suit in Rancho Mirage rent a vacation rental owners and neighbors of Rancho Mirage versus city of Rancho Mirage. The this group of short term rental owners filed suit and the trial court agreed with them and issued a preliminary injunction against the city requiring them either to overturn or to not enforce the ban. And the city failed to comply. And they argued that there was some vagueness or some other problems with the order that it couldn't comply for some reason. And then the court hit the city with attorneys fees for the city. In this case, Jeff is represented by sophisticated appellate specialists. And they know that there's no direct appeal from a contempt order. So they filed a writ petition. And as for the fee award, there was a good argument supported indirectly by some published cases, that the fee award after a contempt citation is directly appealable. But just to be safe, the city took a writ on that too. So they filed a writ on the contempt, a writ on the and then also a writ on the fees and then also a direct appeal on the fees. So the court of appeals summarily denied both repetitions. So then the appeal on the fees went forward but as an opinion that I thought was a little surprising the Court of Appeal dismissed the fee appeal as non appealable. I thought the city had set up some good arguments, but the court knocked them all down. Court knock down the authority that suggested that an order granting fees after a contempt citation was directly appealable as a judgment. Now the Court of Appeal didn't like that one. What about an order after an appealable? Order under nine oh 4.1. A to know the court said a contempt citation is not a judgment. So therefore the fee award is not an order after a judgment. But here's the one that really killed me, Jeff. And it wasn't talked about in the opinion. But this is a quintessential collateral order. The order is an order order of attorneys fees, it's its final, its collateral to the main merits of the case. And it orders the payment of money hits all three of the required elements of a collateral order. But the court didn't even talk about it. And I thought that was that was just a shame. I thought it was an end even though it's not mentioned in the in the opinion and I didn't get my hands on the briefs. I can't believe that these sophisticated appellate attorneys didn't raise collateral order.

Jeff Lewis  18:46 
So what I'm hearing is that 2023 was the year we are going to be discussing reporters and recording court proceedings, and 2024 is going to be the year we're gonna be discussing collateral orders every episode.

Tim Kowal  18:58 
I got my eye out for those. All right. Let's see. Let's go to let's go to one about a defense there was this one is about a defense verdict that was reversed because admitting complaints against the employee was prejudicial. This was our galletta versus worldwide flight services. This was back in November. And one thing that someone complains about after every trial is that the other side offered prejudicial evidence that the judge should have excluded and it's almost always a loot loser argument but it carried the day in the art went to case. And but there was a dissenting opinion justice Grimes still thought that it was a loser argument. And not only that, that it should have been deemed forfeited because the appellant unfairly presented the issue this case involved in employment suit where the plaintiff argued she had been argued she'd been sexually harassed by her manager but at trial, the employer offered several complaints that other employees had made about the plaintiff and the employer employer argued that those complaints were needed to show that the plaintiff had a motive to make her own complaint. And the court admitted them in the court gave a limited limiting instruction that they were only to be considered for motive, but the employer used the opportunity to impugn the plaintiffs character anyway. And so the Court of Appeal reversed said that there was no real dispute that the substance of the complaints were irrelevant. And while the fact of the complaint could be relevant to establishing motive to fabricate a complaint that that relevance was, quote, extremely minimal. And that it was this was interesting, Jeff, I'm always looking out for cases where evidentiary rulings result in a reversal, because they so rarely happen. They are so commonly asserted, I get so many calls after from unhappy parties after a trial. And usually one of the biggest grievances about what happened to them at trial that they thought was unfair is that their evidence was their great evidence was not admitted at trial or the other side's irrelevant and prejudicial evidence was admitted at trial. So I'm always on the lookout for any kind of hope I can offer these these these poor aggrieved litigants after a trial that yes, there's some there's some some cases that hold that improper evidentiary rulings can result. So here's here's one of the very few examples but I thought justice Grimes had a had a pretty good case in her dissent that yeah, I would, I

Jeff Lewis  21:25
wouldn't get too attached to this case. I know you're excited about because even though certified for publication, December, this dissent you're about to read, perhaps might highlight it and improve the chances the Supreme Court will review it, but go ahead. Yeah. So

Tim Kowal  21:38 
justice Grimes mentioned that, that the discussion of this so called improper evidence took up all of about 15 pages of the pages of the reporters transcript at trial, and there were 18 volumes, reporters, transcripts, this is a very long trial. And the discussion went all of you know, maybe half an hour or so it sounds like on this particular issue. And, and even without the complaints, the defense credit, a discredited plaintiffs testimony a bunch of other ways. And that was fatal to the challenge of evidentiary ruling. And then there was also forfeiture issues because justice Grimes mentioned that this was not raised properly. In the opening brief. That's that's almost always a killer. So another another surprising. So it makes it surprising that the Court of Appeal seized on that ground to reverse when it was not properly raised. Yep.

Jeff Lewis  22:28 
There's a story behind the story there, I'm sure. All right,

Tim Kowal  22:31 
Jeff, let's get to some tidbits, we want to talk about the there's a big new big news in civil litigation attorneys engaged in disclosure and discovery disclosures, because now we have a rule that's, that makes California procedure a little bit closer to the federal rules with the initial disclosures. Right

Jeff Lewis  22:49 
and Federal Court following your rule 26th meeting of counsel, you have an obligation to do an initial disclosure without waiting for discovery of the facts, the witnesses, the documents, computation of damages, insurance policies, that kind of thing. And so you got to put all your cards on the table, California has now followed suit with Code of Civil Procedure, section 2016 dot o nine o effective January, first of this year, sunsetting, January 1 2027, unless extended and similar to the federal court, it's gonna require without being asked a bunch of narrow questions with the parties to serve initial disclosures regarding the names of the people who have knowledge regarding the case, either a copy of documents that are relevant, or a description of the categories and locations of such documents, insurance policies, and the like. But the interesting thing about this, and the way it differs from the Federal Court is first of all, one party has to make a demand similar to the demand for exchange of expert info at the beginning of a case it doesn't look like there's a hold. So maybe on day one, the plaintiff with a complaint, I don't know could serve a demand or a defendant making their first appearance with their demeanor or answer could serve the demand for initial disclosures. That's one big difference. And then the second big differences, it seems to the state version seems to require more disclosure than federal law. I think in general, the federal standards require you to produce all documents you can rely on to support your claims, whereas the state version seems to have a broad term of relevance that a lawyer and their and their client have an obligation to identify all relevant evidence, which could probably include both harmful evidence and evidence that may not be admissible, but may lead to the discovery of admissible evidence that's gonna be within the ambit of the disclosure. And the other thing I think is interesting is the verification process. It seems as though the drafters of this law have have envisioned that either a client or an attorney can verify this initial disclosure as a lawyer that would make me a little uncomfortable verifying instead of a client but those are my thoughts about this new, powerful tool in your toolkit for any case filed after January 1. 2024

Tim Kowal  25:01 
Jeff, will this just be a form form letter that attorneys will have in their toolkit just to fire off as soon as a complaint is filed or, or the complaint is, is served to the other side, it doesn't, you don't have to provide a lot of specificity about what you want, you just put everything that that is required to be disclosed, according to Code of Civil Procedure. 20 16.0 90,

Jeff Lewis  25:24 
I think either a letter or something, I'm pleading paper that simply says, We hereby demand the parties make a rule a section 2016 dot o 90 disclosure. And that that's it, I think that's sufficient. Here's the interesting thing, you know, Tim, from time to time, they do anti slap motions, think about this. Motions are usually filed 60 days after service. That's the outer time limit. This requires disclosures within 60 days. And if you have a case with multiple parties, you could be faced with a situation where one of the earlier appearing parties has served a demand for this disclosure, their disclosures that are done, and then a leader appearing defendant comes in with an anti slap motion and freezes discovery. There's some interesting dynamics that could be him that had there. And

Tim Kowal  26:10 
this is a this is a pilot project. It's effective for cases filed on or after January 1 of this year 2024. And it's effective until the end of 2026 or technically until January 1 2027. So we'll see if this is a success, and everyone seems to like it over the next couple of years, expect the legislature to renew it and make it permanent part of the Code of Civil Procedure. And if you don't like it, make your voice heard and maybe it won't be reenacted. Again,

Jeff Lewis  26:39 
maybe although I think as a result of this, people will have to do less of the kind of rote discovery requests that have to be done at the beginning of a case. And I think there'll be fewer discovery motions over those two requests, fewer separate statements, fewer motions to compel fewer IDCs. And judges will be in favor of this. That's my prediction.

Tim Kowal  26:59 
Yeah, I think so. I think a lot of attorneys lot of litigators like to rely on form interrogatory is just because that requires no effort on the part of the propounding party, but they're a little bit messy. They they are made for certain kinds of cases. personal injury cases, not a lot of the the the questions in the form interrogatory is applied to apply to other types of cases. So this, this is a little bit broader, more generic. I think everyone knows what they what their discovery obligations are. Rule, it's modeled on rule 26. And everyone, everyone seems to like rule 26 Because you get the information out early in the case. So you're not spending a whole lot of time and money jockeying just to get basic information. Yeah,

Jeff Lewis  27:43 
yeah, rule 26. And this, this new statute seems to exemplify, you know, Judge Rupert birdsongs principles of litigating in his courtroom, which is, litigation is not poker, show all your cards and litigate the case you have based on the cards you have not the case you wish you had. This will go a long way towards people just being transparent.

Tim Kowal  28:01
But speaking of discovery, misconduct, Jeff, tell us about the new sanction the new sanctions statute.

Jeff Lewis  28:09
Yeah, actually, it's a it's a revision to an existing statute that I wasn't really focused on earlier, my practice Code of Civil Procedure section 2023 dot o five oh, imposed a mandatory $250 sanction for certain types of discovery misconduct, I had no idea there was a minimum discovery sanction, like a judge can't issue sanctions amount of 10 bucks if it found there's discovery misconduct, but this statute says, For certain categories of misconduct, first of all, the minimum is going to go up from 250 to 1000. So that's a minimum sanction amount of $1,000 for certain specific misconduct, dealing with bad faith responses to requests for documents, or if you wait until the very last minute when your opponent has filed a motion to compel and within the week before the hearing on the motion to compel you produce documents at the very last minute, those are two instances where the court shall impose sanctions of at least $1,000.

Tim Kowal  29:04 
Okay, so get ready for that. Don't make sure to steer clear. Any kind of discovery of use. Yeah, I don't think I like the idea of of a minimum. It takes it takes it takes it away from the discretion of the judge, which I think is where these things are best suited. But let's, let's hope that that with the the mandatory disclosure rule, there will be less need for motions to compel going forward anyway. Yeah. Yeah. All right. Let's talk about public drone footage is a subject that may be subject to Public Records Act requests, or at least it's not categorically exempt. Yeah,

Jeff Lewis  29:41 
this interesting case coming out of San Diego certified for publication coming out of fourth Appellate District Division One Casta Neris versus Superior Court. The party representing the petitioner in this case was Briggs law Corporation, Corey J. Briggs. If you're a listener of the podcast, I'd love to have you on the show to talk about this case. In essence county of San Diego has police that use drones to go out as first responders and investigate a situation and it records footage and somebody decided to serve a public records act request to seek that footage. And the police department responded in various ways brought the person in and see how the the drone program worked. I think they even gave him a tour produced all sorts of information about the footage that did not produce the footage itself went to trial, the trial court held that all of the footage was categorically exempt from production under the Public Records Act request. And the Court of Appeal as a case of first impression took this matter on and said, Nope, there is no categorical exemption for drone footage of police police activity. Instead, you got to do a case by case analysis of does this footage implicate one of the specific exemptions from the Public Records Act? Lots kind of interesting case. That

Tim Kowal  31:00 
sounds right to me. If there's a there's an ongoing investigation that the drone footage is relevant to then yeah, I can see that being exempt. But otherwise, yeah, just a categorical rule that says that any information that that that a police department gets in its dragnet searches is exempt from Public Records Act. But that didn't strike me as as a sound rule. So I'm glad that there's there's no categorical rule there. Yeah.

Jeff Lewis  31:25 
And by the way, interesting, this came up on a petition for extraordinary relief, because that's how these kinds of issues are reviewed. And I noticed is this seems like a victory to me for the person seeking records. But the court of appeals said each party should bear their own costs in this proceeding, which I found very odd. Usually, the prevailing party member of the public that seeking records can get their attorneys fees if they prevail, and the city or the public entity can get attorneys fees if they can show the action was frivolous. But foreclosing the successful party here from recovering attorneys fees for this appellate proceedings seems like an odd result.

Tim Kowal  32:07 
Yep. All right. You have a couple of remaining tidbits here. And there is I'm really missing in bringing this up a little bit late. There is a new bill, SB 662. It's the court hearing recording bill, it will help ensure that a verbatim record of court proceedings is available in any case, civil case through expansion of electronic recording in civil cases, including family law under certain circumstances. And we've talked a lot, Jeff about how we California still suffering under a court reporter crisis. We don't have enough court reporters, it's hard to find them family law departments and probate departments are no longer providing them automatically. So you can never take it for granted. So there is this new bill SB six, six to write to your legislator to support that because in the past, every bill to support electronic recording of of hearings has has been unsuccessful. Yeah,

Jeff Lewis  33:02
and by doing so you'll be supporting appellate attorneys who want a nice clean record for their appeals.

Tim Kowal  33:07 
That's right. But as a as a friend of the podcast, Frank Campbell and said, settled statements are not that scary, and they may they may suffice in certain in the right case, so don't give up on all hope is not necessarily lost. If you don't have a reporter's transcript, you might may still be able to use the settled statement. And then our friend Ben Schatz, wrote up referred to this interesting case, Schwartzman versus South Coast tax resolution, where an attorney was subjected to appellate sanctions for failing to share the appellate record. We appellate attorneys know, Jeff, that if you're the respondent, you are entitled to borrow a copy of the appellate record from the from the, from the appellant, but there is there are some limitations of that. But the Court of Appeal really wants you to know that, that you should be forthcoming when that request is made, and go ahead and lend that record because there were sanctions issued in that case, finding that there were Merlots objections to to failing to lend the record. You

Jeff Lewis  34:09
know, in this era of PDFs and electronic records, the only reason for not sharing our record is to be difficult. And I just don't understand why. Why any appellate court would ever be faced with having to sanction a party for not sharing the record. Yeah.

Tim Kowal  34:23 
All right, Jeff. Well, I'm gonna have to leave for another time. This is really interesting case about how race, gender and Jewish conspiracy allegations made by an attorney led to sanctions which that part's predictable, but the sanctions were only $10,000. And this attorney really went after the judges and even the Justice one of the justices on the panel, and it was maybe in a future future episode we'll go into a little bit but it was it was quite quite a case. We'll go ahead and link to it in the show notes. Anyway, this was shwartzman versus South Coast tax resolution from back in November. But anything else, Jeff, otherwise I'm going to I'm going to call that a game today. That's all I've got. All right. So we want to thank case tax once more for sponsoring the podcast each week when we include links to the cases we discuss we use casetext daily updated database of case law, statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on casetext's basic research when they visit casetext.com/calp. That's casetext.com/calp Yeah,

Jeff Lewis  35:33 
and if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our coming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial for your next time.

Announcer  35:43
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a 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 l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.

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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"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.

Leviticus

“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

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

"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

"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."

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—T.H. White, The Once and Future King

"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

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— Will Durant

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