Los Angeles Superior Court will now offer electronic recordings where a court reporter is not available. But not all courts have the equipment. And even if they do, by statute these recordings may not be used to create an appellate record. So what does it mean?
Also, the Supreme Court in Meinhardt v. City of Sunnyvale has confirmed that orders granting writs of mandamus are not appealable—you have to wait for the judgment.
So how did the Court of Appeal in Wastexperts, Inc. v. Arakelian Enters. reverse a pre-judgment anti-SLAPP order while leaving the judgment intact?
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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
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,
Tim Kowal 0:17
welcome everyone. I am Jeff Lewis and I'm Tim kowal, As certified appellate specialists. Both Jeff and I face a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast helpful, please recommend it to a colleague. Yeah,
Jeff Lewis 0:33
and if you like being surprised in your legal practice, go ahead and turn the volume down. All
Tim Kowal 0:37
right, Jeff, you've been on a hiatus for the last three weeks, our guests have been sorely disappointed at the at the lapse in our production schedule, waiting with bated breath for our regular Tuesday publications that come out. You've been in trial, and as our listeners have come to expect, we give trial attorneys tips on how to lay the groundwork at trial when preparing for an appeal. What what dispatches do you have for us after the last three weeks and various trials in LA County? Well, yeah,
Jeff Lewis 1:04
every great appeal starts in the trial court, right? So I've been doing a lot of field research last few weeks. And you know, before I get to that, I just before I forget, I want to say one thing. I'm going to be at Clio con in Austin, Texas in early October. If any of our listeners going to be at Clio con or in Austin. I would love to get together and connect and meet with any members of the audience, so feel free to email and reach out to me. Yeah, I
Tim Kowal 1:29
think Jackie Shafer and some of the other clear, brief folks will be out there. I'll I'm sad to miss it.
Jeff Lewis 1:34
I'm hoping to do a presentation with Jackie demoing her software. Me and my superstar paralegal Jason, are going to work with her on that. So let's talk about trial. So bit of backstory here. You know, over the last few months, the LA Superior court's been issuing these orders and updates regarding and press releases regarding the lack of court reporters available in LA Superior Court, and they've even given financial incentives and done other things to try to incentivize the hiring of court reporters. And most recently, they put out some statistics about how many cases are being underserved now due to the lack of court reporters, it seems to have been building and building and building these press releases to something, and now we know what the something is. On September 5, the LA Superior Court issued a general order by the presiding judge the LA Superior Court about the ability of the Superior Court to make findings and hit the magic button in the courtroom for those courtrooms that are wired to record in certain cases, to make audio recordings to facilitate the making of an appellate record for purposes of an appeal. Now, for this this order to take effect, a judicial officer has to find that the proceedings involve fundamental rights or liberty rights, that one of the parties wants a verbatim transcript to the proceedings, and that no court reporter is reasonably available to report the proceeding, and the party either can't find a court reporter or can't afford a court reporter, and that there's significant legal or factual issues such that a record would be helpful for any court of appeal, in that the lack of a reporter might delay the conduct of the trial or the proceedings. If a court makes all those findings, the presiding judge the Superior Court issued this order saying that the trial courts within LA county can hit a magic button in their department and make a magical tape recording of the trial proceedings super interesting. So I showed up to trial last week in the Torrance courthouse and involved a significant issue. It's going to be multi week trial. Neither the party had the means for a court reporter, so I stood up, I cleared my throat, and I said, Your Honor, please press the magic button and record the judge laughed at me. I just assumed that all the courthouses had these this equipment in it, and they just weren't using it, at least for their Torrance courthouse, there is no recording equipment.
Tim Kowal 4:09
Oh, you're kidding. Do they not have remote appearance capability?
Jeff Lewis 4:12
I guess that technology is very different than the recording of audio for creating an appellate trials. Yeah. So, so that's one thing I'll tell you, and then the other thing I'll tell you is that, and then the judge, by the way, promptly ordered me to prepare daily summaries of everything that happened during our trial as we're going in trial. So
Tim Kowal 4:33
that was fun. Daily summaries from what for purposes of a settled statement,
Jeff Lewis 4:37
exactly. So they're waiting many months down the road to do a settled statement at the end, it's a daily summary for the judge to prove each day. So that that process is a little easier for the judge, and I guess easier for me, but we know in the middle of trial, you don't want to maybe spend time writing summaries. So that's one update I will share. Then the second update is today I attended a state of the court address by seven. Several of the judges of that courthouse in Torrance who talked about their number one issue was talking about this audio recording, and they confirmed, in fact, none of the courtrooms on Maple in Torrance have that recording capability right now, but it's in progress. It is in progress, and they hope to update us soon about that. They also said there are whisperings of a pilot program in the criminal context of allowing audio recordings for real time read backs by somebody down in downtown LA monitoring criminal proceedings, I'm guessing, misdemeanor. But the long and short of it is the technology has not caught up to this interesting court order issued by the presiding judge of LA Superior Court. And I know Tim, you might have a thing or two to say about the interplay of the LA Superior court's general order allowing recording by pressing a magic button versus, I don't know state law. Yeah,
Tim Kowal 5:58
well, and I'll say that I am surprised that that the Torrance courthouse is not, is not outfitted with the recording technology yet. I had just assumed that after covid, all of the courts had that capability. They can, they can facilitate, facilitate remote appearances. And I think maybe, maybe what's left is to have record, you know, microphones at council table, you know, because maybe that's not necessary for to facilitate oral proceedings for oral arguments, for example, on law and motion. But that seems like a relatively small gap to fill. But at any rate, you mentioned that the Court said that they that they are in the works and getting that retrofitted. But yeah, as for this order that dropped this electric court reporting bombshell, I did find I was surprised by it, and it's not the first time that the court has tried to do something like this. It was way back in the 90s that that the Judicial Council started the pilot program, or rather, the legislature started a pilot program, but then, through special interest influence, namely the court reporter lobby, it was not continued, even though it was generally favorably reported as being a successful program, the Judicial Council stepped in and said, Well, if we don't have a statute that allows it, there doesn't appear to be a statute that prohibits it. So we're going to go ahead and promulgate some rules of court that allow the use of court reporting, but in a pair of lawsuits brought by the California court reporting association that those rules were struck down as as inconsistent with the statutory regime. So that's where we've been mired ever since the 90s, on that, on that issue and and even since then, we might have thought that, well, even if the courts can't record for purposes of creating a record, maybe they could at least record for purposes of allowing counsel to use the recordings to create their own transcripts for their own purposes, such as maybe creating a separate statement, which is one of the other statutory authorized means of creating a verb, not a verbatim record, but at least a form of oral record of the trial for use on the appeal. It's not as good, obviously, as a verbatim transcript, but it is a statutorily authorized means of creating an oral record, and an electronic recording could be very helpful in creating that. But alas, Government Code Section 69957, prohibits courts from using electronic recordings for purposes of creating the official record. So I'm curious what the what the court has in mind by way of trying to resolve that seeming conflict between its recent order allowing electronic recordings and Government Code 69957, which prohibits the use of it as creating the official record.
Jeff Lewis 8:58
So when you say conflict, you know, I'm envisioning, you know, how could this ever, like reach the court of appeal to declare whether or not the LA Speer court of general orders in conflict with the state rule. And the question would be, if a judge ever pressed this magic button, somebody a litigant, would have to say, oh, no, no, don't press this button. We don't want a record. And if you press that button, we're going to go appeal your pressing of that button, or maybe take a writ. And I just can't imagine any litigant not wanting a record. No, I don't think
Tim Kowal 9:29
it would be a litigating it would be the the court reporting association itself, filing a declaratory relief action or a petition for writ of mandamus to prohibit the courts from from complying, you know, from using this order in in violation of the other statutory regime that prohibits it, namely, Government Code, 69957, but I still think that it can be used it 69957, doesn't say courts may not record the proceedings period. It just. Says courts may not record the proceedings for purposes of creating an official record. So even though the court, you know, the court can't use it for that purpose, could the court still just make the recording and give it to counsel to do with it what they will? I think that would be the question. But because if the courts did use it and then hand it off to to to a court reporter to for purposes of creating the official record. I just don't, I don't, I don't think you could do that consistent with 69957, so the the California Court Reporters Association has already chimed in on on chief judge just nurse order and calling it, quote, unlawful. I think for that reason. Well, hey, if
Jeff Lewis 10:42
anyone in our audience is a court reporter or knows a court reporter or knows somebody who knows a court reporter, I sure would love to have a guest on the podcast to explain a court reporter's perspective on why pressing that magic button and hitting record wouldn't be helpful to the administration of justice. Yes, please reach out to me or Tim, if you have an idea for a guest there. Yeah,
Tim Kowal 11:06
ISIS. I would. I would love it if, if some court reporters or or especially a representative from the the Court Reporters Association or one of the other trade groups representing court reporters would chime in on the issue, because I was not able to get very far. When I wrote, I published an article on this in California litigation magazine earlier this year, and when I was doing research for that article, I was able to get some in, some useful insights from from court reporters on just how you know, what a great profession it is, it's it's flexible, it's well paid. It's interesting work, but I was not able to get anyone from the Court Reporters Association or other trade groups to chime in on the issue of well, if you're not able to get enough uptake in the profession, and there's obviously this crisis of not enough court reporters, are there any remedies that you would support or that, at least, that you would not oppose in order to alleviate this crisis? And there's crickets on that question. There's, there doesn't seem to be a lot of of affirmative action or affirmative efforts on the part of the trade associations to help resolve the crisis. They just want to make sure they maintain the, you know, their their objective of of maintaining a monopoly, basically.
Jeff Lewis 12:22
Yeah, all right. Second update that happened while we were on hiatus. You know, I know we have one of the top legal podcasts out there, but there's another little podcast by the name of serial that covered a murder trial involving a fellow by the name of Ayman Syed. He was a high schooler who was accused of murdering his high school classmate, and that murder trial and efforts to overturn that conviction, 20 years later, was the subject of the Serial podcast, and there was big news in late August that the Maryland Supreme Court reinstated the murder conviction of Syed. And the way this played out was, first he was convicted, and then 20 years later, new evidence came out, and they decided to vacate the murder conviction. But in vacating the murder conviction of the trial level, I guess the Maryland trial court failed to provide notice to the victim's family, specifically a brother, and the order exonerating or vacating the criminal conviction of Syed was appealed by the brother, and ultimately the Maryland Supreme Court agreed that he should have been given notice the conviction is reinstated. And essentially, I think they just got to do a do over of this hearing and give this family member his day in court and his ability to participate in the proceedings and speak out on behalf of the victim. Before Syed is conviction is overturned again. So as of this moment he is convicted murderer, they have said he does not need to report back to jail or prison pending this new hearing. Just another interesting twist in this story.
Tim Kowal 14:09
Yeah, was this a, was this a an overturning of the conviction or the sentencing, the conviction, the conviction itself? So is a conviction really going to be an open issue, or is it just, does everyone realize that this is just the same result is going to recur? It's just, we have to give the brother the day in court? Yeah,
Jeff Lewis 14:32
look, I think I read a quote from the family member that said something along the lines of, they recognize the outcomes not going to change, but they want a voice, and they want the rights of the victims respected, and this is more about the bigger issue of respecting victims in general and the right to notice of these kinds of hearings. I don't think anyone really expects the outcome of the hearing to be any different, and I think Syed ultimately will reach the same destination, which is having his conviction overturned.
Tim Kowal 14:59
Yeah, okay. Well, that seems, that seems bizarre. I mean, I know that that the the right to have your day in court is an important one. It's closely held. It seems sometimes, sometimes we have to slow down the wheels of justice, or even put them in reverse for a time before we can get back to the same place we started, so that we can feel that there was transparency in the process, and everyone got their say,
Jeff Lewis 15:24
yeah. And who knows, maybe it's a matter of lack of jurisdiction or something. But I don't know why, rather going through this whole process of an appeal, why somebody just didn't do a do over and say, Ah, you're right. Let's just do another hearing and save the parties, you know, months or years of litigating in the Intermediate Court and the higher court and this, and then having it in an opinion and remanded and all of that. It seems like at some point somebody could have just said, Yeah, okay, we'll do another hearing. Does
Tim Kowal 15:48
this? Does this retrial have to be before? I assume it's going to be before a new jury? No, no, it's not a retrial.
Jeff Lewis 15:55
It's more about a rehearing, examining the evidence that was presented to the first trial, declaring whether or not there's enough evidence to declare medicine, and then I think the DA would have the discretion to retry them or from new charges, but I just don't think that is likely. Yeah,
Tim Kowal 16:10
okay, all right. Well, every now and then we do these forays into into the Criminal Procedure, even though this is not, this is, this is not a podcast that focuses on criminal but the statutory safeguards are, you know, are at its most important in in criminal procedures. And so sometimes they give a good indication of what, what types of of safe safeguards are available and and maybe in some civil cases should exist, but this is one that doesn't really have a civil analog. Yeah, all right, I have a couple of cases, Jeff, I want to talk with you about, and they're about appealability. One is, by way of update some news from the Supreme Court in the mine heart versus City of Sunnyvale case. This concerns appealability of writs of mandate, and there had been this ongoing problem Jeff of of trial courts issuing orders granting the writ of man mandamus, petitions for rid of mandamus, but then leaving the question whether the order was appealable, or whether there would be a further more formal order or judgment, and that that would be the appealable order. And think, think in terms of an order sustaining a demurrer or an order granting summary judgment, those orders on by themselves are not appealable. Instead, you're supposed to wait around for the formal judgment or the formal dismissal. And so there was a similar question raised in mine heart, is the order granting a writ of mandamus itself appealable? Or do you have to wait around for for the judgment? And there would there have been a split of among the courts of appeal on that? But the court of appeal, the Supreme Court, has made a bright line rule now that the time to appeal in an administrative mandamus proceeding starts to run with entry of the judgment and not just the filing of an order. So that provides more predictability. It kind of sits, sits in line with our expectations. Those of us who are familiar, those who listen to this podcast and are familiar with the rule about orders sustaining Demers and orders granting summary judgment are not appealable. Instead, you have to wait for the order now the same now we have confirmation that the same rule, the same basic procedure, applies in in writ of mandamus, it's not the order granting the mandamus, it's the mandamus itself that's appealable.
Jeff Lewis 18:41
Yeah, stop me if I'm wrong or if I'm misremembering. Was there some murkiness before this decision? Was there some murkiness created because some courts had graciously allowed appeals to proceed when an order, rather than a judgment, was appealed, and just deemed it an appeal from the judgment, and the Supreme Court just kind of clarified, well, while some courts may have graciously allowed that this is what the rule is, yeah, you
Tim Kowal 19:10
know, that's That's a good thought, and I, I would be willing to bet that something like that has happened. But as I recall, and I think we had talked about one of the cases on the on one of the sides of the split on this that held that the order is granting mandamus are appealable. Actually was. It wasn't one of those gracious cases where we're just, you know, affording the right, or extending the right, or saving the appeal, saving a premature appeal. It was, it was, as I recall, it was finding that the appeal, the Court of Appeal lacked jurisdiction, because even though the appellant had appealed from the judgment, the time to appeal had run, started running far sooner when the order granting the writ was was first issued. So I think, I think that kind of circumstance, I think. If it was the circumstance that you had mentioned, Jeff, where the court had had extended liberality and saved premature appeals, I don't know that the Supreme Court would have reached down and felt the need to decide this case, but it was at least one or more courts who were holding that appeals were untimely because the appellant had waited for the judgment before appealing, that the Supreme Court said, No, we need clarity on this issue. Appealability is a jurisdictional question, and we can't just have this kind of, well, the jurisdictional rule applies to these kinds of orders, but not to these other kinds of orders. We have to have the same rule for all types of orders. Got it, and now with that setup that kind of dovetails into the next case I wanted to discuss with you, Jeff. This is the waste experts versus our akeelian enterprises. We discussed this case a month or so ago on the Civility angle. Basically what happened in this case, there was a waste experts filed a complaint, and our akelian filed an anti slap, which was granted in the trial court and and even though the Court of Appeal reversed and sent it back in favor of the plaintiffs, the the Court of Appeal had had a lot of words to say to the plaintiff's counsel about about the Civility exhibited in The briefing and a lot of a lot of adverbs that were gratuitous and unneeded. Calling the trial court something the way of you know, I think it was a gross miscarriage of justice, and it was a miscarriage of justice itself is just the constitutional standard. But as we talked about it was the gratuitous adverbs that the court really didn't like. But what I want, I don't want to reprise the the Civility conversation today, Jeff, I want to talk about the appealability issue in this case. What had happened in waste experts is that when the court, the trial court, granted the the anti slap motion, that order granting an anti slap motion, as you know, is immediately appealable. But then a month or so later, the Court issued a formal judgment dismissing the case because the anti slap motion had granted as to all the claims. And then entered a an order consistent with Code of Civil Procedure, 580, 1d being a formal dismissal, a formal judgment of dismissal, and then after that is when the plaintiff filed the notice of appeal. But in the Notice of Appeal, where the plaintiff was called to identify which orders are you appealing from the plaintiff only identified the earlier order granting the anti slap and not the judgment. Well, our akelian argued on appeal that filed a motion to dismiss and said, this is this appeal is moot now, because the time to now file a notice of appeal from the judgment is expired, and that judgment has made the underlying order moot. The reason being that even if the Court were to find that the underlying order granting the anti slap were reversible, you still have a judgment to contend with, an intervening judgment to contend with, and the court has no jurisdiction over that judgment because no notice of appeal has been taken from it. So that was the problem that was presented here in the in the Court of Appeal denied the motion to dismiss and went ahead and reversed the the underlying order anyway, without any guidance on what the lower court is supposed to do with the judgment, which is now final and non reviewable, the court simply, Court of Appeal simply said that an order granting an anti slap motion as to the entire complaint is itself a judgment which, again, can, can be true in in certain cases. It's, it's a it's appealable for certain, but when a formal judgment later is entered and the order granting the anti slat motion doesn't actually comply with the requirements under 580 1d for a dismissal order, which has to be in writing and signed and fully dismiss all the claims, then it's it's not a judgment at least under 580 1d purposes. So, and that was that was clarified in Melbourne in the melbostad case, that the waste experts case relied on for this proposition, but didn't go on as melbostad did, to confirm that the order appealed from here met the requirements of a 580 1d dismissal order. So, this is so this is the interesting conundrum, Jeff, I wanted to get your take on it. What happens when an order granting an anti slap motion has been filed, but then, but then subsequently, and a judgment is entered? It,
Jeff Lewis 24:35
by the way, this happens all the time in one of two ways. One, you know, judges are schooled. I don't know if it's judge school or just years of time on the bench to after sustaining a demur, you enter a judgment, or after granting summary judgment, you enter a judgment. They just don't want an order hanging out there. You need a final judgment to close the case and start the appeal clock. Those same judges who've been trained that way think that when you have an order. Striking the entirety of a claim pursuant to anti slap law, you also need a judgment which is erroneous, because, as you know, the anti slap law itself, the statute makes such an order dismiss immediately appealable. So that's one way it happens all the time. The other way it happens all the time is in connection with fees. Let's say you have an order granting an anti slap and then maybe I don't know, a crafty anti slapp Lawyer schedules a fee motion filed within 60 days of that, but to be heard outside the 60 days, and then all of a sudden, got a fee award. And then the court says, Oh, why don't we just sign a judgment here that includes the fee award, and we'll tie it up in one nice, neat ribbon, and it'll be perfect, except the fact that the order granting the anti slap by that time, if you haven't appealed it, you've blown your time, right? So what do you do? I'm of the opinion that this general rule that requires judgments or orders to be signed by a court is a general rule, and that when you have a very specific law that says a court can strike claims pursuant to the special motion to strike statute, the anti slap law, and that law doesn't say anything about signing, that the order is final. It's appealable. It need not be signed. That's the end of the story. Anything that happens after that in terms of judgments or anything is of Lee, no legal consequence. If I were wearing a black robe, I would say all that matters is the order granting the anti slap, unless the minute order says we want the attorneys to prepare a very special attorney prepared order for signature by the court that might give you some wiggle room.
Tim Kowal 26:37
Yeah. Well, as I recall, that is that was stated in the order here, that it did contemplate that there would have, there would be a further order to be prepared by counsel and signed by the court. And it did happen. What I think is, is I can understand the reluctance on the part of the Court of Appeal if the Notice of Appeal had been filed immediately after the order granting the anti slat motion, and then, and then subsequently, there was a judgment that kind of caught the appellant off guard. Wasn't really tuned in to what was going on in the trial court any longer, because now we're in appeal land. But the but here the the plaintiff waited until both the order and the judgment were were issued, and then preparing the Notice of Appeal only identified the former, but not the latter. That's what I think was inexplicable here, and a little difficult if I were wearing the black robe, difficult for me to overlook it if I'm going to be maintaining the these rules that concerning jurisdictional deadlines, concerning appealability,
Jeff Lewis 27:45
yeah, and I don't know, I haven't looked at it, but I'm guessing the notice of appeal in this particular case was a judicial council form with very limited boxes, as opposed to a pleading paper where an appellant could say things like, we appeal from the order and the judgment And the fee award and anything else we can think of, all in one document to kind of cover your bases. Yeah, yeah, it's
Tim Kowal 28:07
my practice not to use that Judicial Council form, as I've mentioned several times on this, on this podcast, for that reason, and then one other, one other case site and quote to give to our listeners along the same vein that I was mentioning about the importance of having clear rules about the jurisdictional problem of having a timely notice of appeal that adequately identifies the orders that you're appealing from. This is 1983 case Olson versus Corey. Since the question of appealability goes to our jurisdiction, we are duty bound to consider it on our own motion. One thing that I found interesting in this case, the appealability question, jurisdictional question, was only handled in this one or two sentence discussion in a footnote, as if this isn't really that important, we're just going to give it a couple of sentences in a footnote that seems to fly against the proposition that appealability goes to jurisdiction. So the court has to consider, it, has to give it, can't give it short shrift. Okay, well, Jeff, that's, that's all we have for this episode. Short episode to get back in the saddle. You got any last comments? No,
Jeff Lewis 29:20
but if you're going to be in Austin for cliocon in early October, 1 week in October, please reach out. And if you have suggestions for future episodes, please email us at [email protected], and in our upcoming episode, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Announcer 29:36
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