A ransomware attack hit the Los Angeles County Superior Court in July 2024, affecting e-filing services. Did you miss a filing deadline because of this? We discuss two Rules of Court that could help.
We also cover:
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
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Announcer 0:03
Music. 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.
Tim Kowal 0:18
I am Jeff Lewis and I'm Tim Kowal, As certified appellate specialist, both Jeff and I face a lot of unusual problems that come up at trial and on appeal in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast useful, please recommend it to a colleague.
Jeff Lewis 0:35
Yeah, if you like being surprised in your legal practice, take this as your spoiler alert. Yeah. Well, a
Tim Kowal 0:40
lot of us were surprised last week, Jeff with with all the computer problems, the Windows Update glitch followed by a ransomware attack LA Superior Court, I think, caused a lot of us you were telling me about some problems trying to file in LA Superior Court to cause a lot of our listeners some problems. And we were talking about what our remedies might be if any of us are experiencing problems having been unable to file critical documents on time because of that glitch, why don't you get us up to speed? A little bit. Jeff on what happened last week with the LA Superior Court ransomware attack. First of all, let
Jeff Lewis 1:15
me just say I'm delighted to inform everyone I run an all Mac practice, so I was feeling pretty relieved that last week that my law firm was not impacted by the cloud strike problem. And let me also say I've brought to mind saying by Judge hunt from Orange County Superior Court, who's retired now, I believe used to say there's no rule that requires you to file your papers on the last day they're due. That came to mind on Friday, when people are trying to file papers in either LA or orange and superior courts, and there were problems both from the cloud strike. This the software update that, I guess, paralyzed computers that were running off some sort of Windows operating system that caused problems. And then, separately, Los Angeles Superior Court was subject to a ransomware account attack that that took the website down, impacted remote appearances. If you're making a remote appearances on Friday or even Monday of this week, you were you were told your matter was simply continued. And the courthouses in LA were actually closed on Monday, July 22 physically closed, and it was deep court holiday, similar to to covid. And the reason I wanted to bring this up and chat with you about this, Tim is I Tim is I was wondering if, if you were on your last day to file a notice of appeal, you're on day 60, and it was due on Friday, July 19, and you couldn't get it on file because of either cloud strike or because of ransomware, what were your options on Friday? And one other fact I'll just share with you, although the E filing was down on Friday, July 19, the la suerte court clerk said they were open for business in terms of paper filings coming in, so that that was an option. So you know, with that said, I had, I remembered a case we discussed, the Garg V Guard case, where somebody had a technical glitch when they presented a notice of appeal to be filed and it wasn't filed. And I think in that case, that party had not realized or not been informed of the rejection until months later, and so couldn't file a quick motion in the Court of Appeal for relief. That guard case kind of laid out a discussion of the rules that are applied and what you do when in this air age of electronic filing. What do you do when we're back in the stone ages and the computers don't work?
Tim Kowal 3:30
Yeah, I think a lot of us are out of practice of the old days of filing manually. We all just rely on the assumption that we can file our documents electronically up to 11:59pm on the deadline, and so no problem. 5pm comes and goes. That's okay. We're going to polish up this briefing and then just ship it off via e filing. But that may not have been the case last Friday. Yeah. So what? What happens? We talked about Jeff in that guard case there. Is a rule of court that's that seems like it may be on point. So we thought maybe we'd, we'd run through that rule and see if that can offer some of our listeners some solace, if they are having some heartburn about maybe a missed filing on Friday. Does that outage, that inability to make an E filing on Friday? Is there some refuge in rule of court? 2.259, subdivision C talked about in the guard case. We talked about that in episode 52 but rule 2.25 9c, says if a technical problem with a court's electronic filing system prevents the court from accepting an electronic filing, the court must deem the document as filed on that day, we talked about, does that in guard? We were talking about just some kind of snafu. I don't remember if it was, if it was specified the nature of the snafu, but the court accepted that that okay, there was some sort of electronic filing snafu for this particular filer. So the under Rule 2.25, 9c, it's a. Shall provision, as long as it's established that it was there was an electronic glitch that day that prevented e filing, then the court shall deem it filed that day. And so would that apply in this circumstance where presumably the entire court was prevented from accepting electronic filing systems from all filers? It's a little bit different from the situation in guard. But what do you think, Jeff, would it apply to the situation on Friday where the court couldn't accept any filings? Yeah,
Jeff Lewis 5:28
I think, I think it certainly would apply if you had a massive filing like an MSJ brief with evidence and declarations. I think that there's a great argument that that this rule would apply, but if, if the clerk's office is open and it's just a one page notice of appeal. Could you does the fact that you could physically walk on down and submit a filing? Would that preclude you from the shelter of rule 2.259 I don't know. I guess the plain reading of rule 2.259 is if you try to present it electronically and it's not accepted you've got an out, but it'd be interesting to see what kind of controversies in case come out of Friday and Monday's activities. I would say this, if you are among the unfortunate that tried to file either in LA or in Orange County, and you weren't able to, and you and and you tried to follow up with the filing the following, the next following court day, which was Monday, the 22nd in Orange County, and Tuesday, the 23rd in LA if the trial court's not giving you relief, you should have already, by the time you're listening to this podcast, filed a motion in the Court of Appeal for relief to file a late a late notice of appeal, or to deem the Notice of Appeal timely under the the outline set forth in Garg V Garg, yeah,
Tim Kowal 6:46
yeah, I would say Jeff. I probably maybe by the time this podcast publishes, the LA Superior Court will have issued some sort of guideline, or kind of instructed judges to accept filings that were attempted to be filed on Friday when the court was down. But that rule might not, might not apply, or a judge's desire to be lenient to the situation from Friday might not apply to a jurisdictional deadline like a notice of appeal or certain post trial motions. So and that's in that instance, I agree, Jeff, you should file that motion in the Court of Appeal, as Garg outlines, and cite both of the applicable rules of court, the one I read a moment ago, Rule 2.259 and that's the that's the stronger shall provision, and actually the rule that Garg went on to apply because the moving party didn't raise that particular Rule. Instead, raise the other rule, 8.7 7d which is a good cause, showing, if there's a good cause, showing that that the filer experienced a failure at any point in the electronic transmission and receipt of a document, the court may enter an order permitting the document to be filed. Nunk Pro tunk, but that motion has to be filed in the Court of Appeal if we're talking about a notice of appeal, or presumably, I'm not sure if, if it's a post trial motion with the jurisdictional deadline, if that, I think, I'm not sure the court was very emphatic that the motion needed to be filed in the Court of Appeal as to a Notice of Appeal, I'm not sure if that reasoning applies to jurisdictional deadlines for post trial motions, like a motion for new trial,
Jeff Lewis 8:25
yeah, probably not, unless the trial court denies your relief in the first instance and then you go up petition for the mandate the Court of Appeal or emotion,
Tim Kowal 8:32
yeah. But if you do have, if you did have a jurisdictional deadline on Friday, pay very close attention to those rules. I would not rest on your loyal laurels and just count on the good graces of the court. You may, the court may excuse certain kinds of deadlines, but I would, I would invoke your rights under those two rules of court to make sure that you didn't blow a jurisdictional deadline. Okay, we have some other cases and tidbits to get to Jeff. The first one that I had flagged was a case involving an anti slap order. This is your bailiwick. And the question is, are anti slap orders judgments? We know that the cases waste experts Inc versus are a Killian enterprises the court indicated it published this decision to highlight a civility issue. We'll talk about that in a moment. The the anti slap analysis. We probably, probably don't need to get into the anti slap analysis. It did wind up reversing a grant of an anti slap motion. But what I thought was interesting, in this opinion, Jeff was, was actually just in a footnote. The issue was that the appellant appealed from the order granting the anti slap motion as as they must, because anti slap grants are automatically appealable. They don't. You should. You don't have to, and you should not wait around for a formal judgment. But a formal judgment did. Follow. And the respondent argued that that well, even though the anti slap order, minute order was a appealable order, it can still be rendered moot by entry of a subsequent formal order, just like a say for example, a preliminary injunction is a appealable order, but if a judgment follows later, then it renders that earlier order moot. Even though it was appealable, it can still be moot. So the question was, isn't the anti slap the appeal from the anti slap grant, moot? Now that a formal judgment has been entered, dismissing the entire case and the court in in just a footnote, said, No, it's not moot, because anti slapping grants are available, didn't quite exhaust the other problems raised by that question, but that that was the conclusion in a in the footnote in the waste experts case, interesting,
Jeff Lewis 10:51
all right, and there was some discussion at the end of the case about civility. It seems like the courts are more and more often reminding attorneys to be civil and in this particular case, this was a reminder that you can challenge an order on appeal without calling the ruling transparently erroneous, egregious or a truly perverse miscarriage of justice. Those are quotes from the briefs, I suppose, and accusing the describing as what happened, as the overreach by the trial court hears nothing short of shocking, effectively blessing the respondents, business threats and immunizing them. The Court of Appeal was not excited by words, and cautioned appellate lawyers to be more civil.
Tim Kowal 11:35
No, the panel did not like that language. And Jeff, you've probably seen harsher language than that. In your experience, I've seen harsher language than that. I was a little surprised that the court laid into counsel so much and decided to publish just on the basis of those statements. I agree that the the advert, just as a rule, I like to kill most of my adverbs in in my own briefs, but the say, for example, calling the courts, the court's ruling transparently erroneous. I mean, erroneous is the baseline. As the appellant, you have to establish error and but the court really didn't like tacking on the adverb, transparently transparent error. So kill your adverb. Same thing for a truly perverse miscarriage of justice. Again, miscarriage of justice is the floor that's the constitutional floor to get a reversal to establish a miscarriage of justice truly perverse was going overboard a little bit. So kill those adverbs. I was surprised that that that attracted so much attention from the Court of Appeal. The other statement that you identified Jeff about the overreach of the trial court being shocking and effectively blessing the the respondents, business threats and immunizing them. Yeah, that's, that's, that's a little overboard. It's, it's never helpful in the court went out of its way to say that that these are, these are inappropriate and published the decision for that reason. Yeah, okay. The next case that I that I wanted to talk about just a little bit is about a constructively filed notice of appeal. This is in race Santos. It's a it's a non published decision, and it's a criminal decision. We usually don't talk too much about criminal decisions, but I thought it was interesting because it talks about one of the exceptions to the rule, to the to the deadline to file a notice of appeal. In this case, this involves what's known as the prison guard exception, that if a convict hands a notice of appeal to the prison guard within the jurisdictional timeframe, then that appeal is going to be deemed constructively filed within the jurisdictional timeframe, even if the prison guard doesn't timely rush to the court and get it filed on time. But this didn't deal with the prison guard. This was just the the attorney didn't get it timed filed on time because the clerk was apparently given giving the attorney mistaken information. When the attorney called repeatedly to ask, Has the judgment been entered yet? Has the judgment been entered yet? Has the judgment been entered yet? And the clerk said, No, not yet. Turns out it had been entered. And when the attorney found out, and then promptly filed, well, too bad it was untimely by that point, and the court said, No, that just doesn't strike us as fair. So we're going to deem the constructive filing rule, which, again, normally only applies to that prison guard situation. We're going to deem it applicable to this instance, because by no fault of the the appellant, it could not have filed the notice of appeal within time.
Jeff Lewis 14:39
Yeah, you know, when I read this case, the three positive factors that popped out to me as to why the judges forgave the 60 day rule. Here is one, when the petitioners trial counsel asked the clerk to provide proof service of the earlier judgments entry, the clerk said, Yeah, I can't find it. And then the second issue was. On that the minute the petitioners, trial counsel learned about this issue, this problem, filed a notice of appeal, didn't wait around. And then third, the biggest factors, the Attorney General's office didn't oppose the reviewing court allowing this late notice of appeal. Yeah,
Tim Kowal 15:18
I saw that the Attorney General didn't oppose. But again, if it is a jurisdictional issue, opposition or not, the results should be the same, right? There's no if there's a, you know, if it's a, what would the Attorney General argue that there was some sort of prejudice by allowing the notice of appeal to be filed outside of the of the time, yeah,
Jeff Lewis 15:41
who knows lack of diligence? Who knows what they could have come up with. But I suspect the lack of opposition really motivated the Court of Appeal to allow this to go forward.
Tim Kowal 15:51
Okay? Well, because notice of the appeal is jurisdictional, the notice of appeal is a jurisdictional document. Anytime we see an exception to that rule, we like to highlight it. Okay, next case, we just have a few quick hits here. Don't have a lengthy discussion on them, but Keaton versus Tesla. This involves an arbitration whether the arbitration rules under the California Arbitration Act are preempted by the FAA Federal Arbitration Act, that issue is now before the Supreme Court. It says to do with the arbitration fee requirements. Jeff, as you know, if you don't pay, if, if one of the parties that the the institutional party typically doesn't pay, doesn't timely, pay the arbitration fees at any point during the arbitration under the CAA rules, the arbitrate right to arbitration is automatically waived. And there has been at least one case we talked about recently, Jeff, I think that's the Hernandez case held that that rule is preempted by the Federal Arbitration Act, but Keaton versus Tesla held that it is not preempted by the Federal Arbitration Act. The Supreme Court has granted review on this issue in Owen Scheldt versus Superior Court, so we'll keep our eye on that next one. Legislature. What's that?
Jeff Lewis 17:10
Go ahead? I've got nothing on that one.
Tim Kowal 17:12
Go ahead, yeah, legislature versus Weber. You may have heard about this. This was a Supreme Court decision a couple of weeks back that killed in an anti tax initiative, find holding that it was, it was too expansive. It would have constituted a revision to our constitutional structure. And so it was not appropriately framed as a as a voter initiative. And so for that reason, the Supreme Court held that it should be struck from the ballot because it was, again, I read them too expansive. Yeah,
Jeff Lewis 17:43
I read that decision. It's kind of interesting. It's an original proceeding filed in the California Supreme Court, so it wasn't reviewing a lower court's decision. Sometimes people who are challenging laws will file a petition for mandate in the trial court or the Court of Appeal. This time they hopped the line and went right to the Supreme Court. The other thing I found super interesting is, and I never knew this before reading this case. I didn't know courts had the right to shorten the date of finality of their own appellate opinions. So for example, if a court of appeal issues a opinion, normally there's 30 days before it becomes final. Under this rule, the court, when justice is promoted, can shorten the time period to an earlier time. So I found that really interesting. They did that here. They shortened the finality of the opinion to five days after it was filed. Yeah, that
Tim Kowal 18:34
is, I didn't notice that was, was that Jeff, was that in the that's in the in the Supreme Court, the Supreme Court shortened its own date for finality.
Jeff Lewis 18:43
Yeah. So the rule they cite to allow them to do that is applicable to the Court of Appeal or the Supreme Court, but it was the Supreme Court here shortening the time of finality, presumably shortening the time that someone could go up a higher step to the United States Supreme Court. If, I don't even know if that was contemplated,
Tim Kowal 18:59
yeah, yeah, that's that's interesting. So that raises an issue, if you are litigating something on a voter initiative or something for whatever reason is very time sensitive, and this, in this situation, I think the Secretary of State needs to finalize its ballots for for the upcoming elections. And if this thing gets thing were to get dragged into petitions for certiorari or whatever else that that could delay things and undo the effect of this, this order, and again, that, and just because it's going to be relevant in a moment, the anti tax initiative here, as I understand it, was a far Reaching voter initiative ban on taxes so it would prevent the legislature from from voting any any tax increases or new votes without voter consent and and without, I think, without getting into the merits of whether that could apply to specific types of taxes the so. Supreme Court found that just doing a blanket ban on all new taxes or tax increases was just too expansive. But that takes us into the issue, very similar issue that was raised in a court of appeal opinion recently in Loeber versus Lakeside Joint School District, where a tax initiative was held invalid because it was too narrow. In that case, this was again on the heels of the Supreme Court's legislature versus Weber decision, holding that the anti tax initiative there was too sweeping to be valid. The Court of Appeal held in Lober, which was published that a senior citizen school district tax exemption was too narrow to be valid. I think the petitioner there wanted school district taxes not to apply to senior citizens. And court found some fault with the way that was narrow, narrowly drawn. Maybe it was because, well, I haven't read the opinions yet, but, but just a flag. We'll flag for our listeners if they want to take a look at that one. Yeah, you
Jeff Lewis 21:02
know, I did note that this one was filed in the trial court, rather than as an original proceeding in the court of appeal of the California Supreme Court. I just always wonder what's going through counsel's mind when they decide, are they looking for a friendlier forum, or are they looking to speed things up? And it's just interesting that this case started in the trial court. Okay,
Tim Kowal 21:20
and just a couple more. Jeff moving to the to the litigation rich area of homeowner association cases, Morris versus Hayden Homeowners Association held that the home, the HOA, could not prohibit a homeowner's religious celebration. Case was out of the ninth circuit. In a divided panel produced three opinions, the majority being led by Judge berzone, the majority reversed a J and ov and reined a jury verdict. The jury had found that the HOA, which had opposed a Christmas program was motivated in part by the owner's desire to express, express their religious beliefs. Dissenting judge Toshima thought that the HOA was just worried about the scale and scope of the program, and then concurring and dissenting judge Nelson would have, would have dealt even more harshly with the HOA. Guess judge Nelson really believed that the HOA was after the religious beliefs. And my non legal observation, Jeff is that fences make good neighbors, but lawsuits don't
Jeff Lewis 22:30
Okay.
Tim Kowal 22:31
That's a good segue into the next one. Say our last case for today, sans versus Martinez involved a restraining order or or a complaint for a restraining order that was denied because involved with the defendant was accused of being annoying. It was annoying the petitioner or the plaintiff. The attorney had sought a restraining order against opposing counsel, and the court agreed that opposing counsel was, quote, annoying, but denied the restraining order, because you could only get a restraining order if the opposing counsel had been seriously annoying. So I guess the there's a difference between being regular annoying and seriously annoying. So even though the bar for restraining orders is pretty low, the Court recognized some limits here. Well, look, these
Jeff Lewis 23:17
restraining orders are serious business. You know, if you're a gun owner, you might be required to surrender your guns. You're in the cleat system. It's serious business. There should be a higher bar for getting these restraining orders. And so I think, legally speaking, the court's analysis here was correct, but I'll say this, I don't understand if this was too opposing counsel, why wouldn't you just go to the judge, oversee case and get some very specific relief, as opposed to restraining order, some different judge. I completely
Tim Kowal 23:44
agree with you, and this is not the first time we've seen this. Jeff, we talked about the I'm not going to come up with the name of the of the case, but it was not that long ago. It was the same thing. It was opposing counsel was was faced with a restraining order lawsuit over his conduct at a deposition that happened during the case. If, again, like you said, if you feel that opposing counsel is behaving below the threshold of civility or engaging in other inappropriate conduct, your case is overseen by a superior court judge or district court judge, depending where you where you are, take the matter up directly with that judge, why are you filing a new litigation, other than, as you say, because they are serious business and deprive the defendant of constitutional rights? Yeah, yeah. Okay. Well, Jeff, that's gonna wrap us up for this episode. If you have suggestions for future episodes, please email us at info, at Cal podcast and our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis 24:43
See you next time
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