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The California Appellate Law Podcast

Rejected Arguments for Lack of Citation, and Other Recent Cases, on Ep. 23 of the California Appellate Law Podcast

Tim Kowal     February 1, 2022

Jeff Lewis and I round up some recent appellate cases, and briefly discuss why California still does not make audio recordings of proceedings like federal courts do. Here are the cases we discuss:

Appellate Specialist Jeff Lewis' biographyLinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biographyLinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Transcript:

Jeff Lewis  0:05 
hear that sound, Tim. That was the sound of 1000 court reporters unsubscribing from our podcast.

Anouncer  0:12 
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 Cole and Jeff Lewis. Everyone. I am Jeff Lewis.

Tim Kowal  0:27
And I'm Tim colwall, California Department of podcasting license number 254709 are in each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. And in this podcast, we offer some of that appellate perspective on various issues that arise in the trial courts and the appellate courts, Episode 23 of the podcast 23. And Jeff, in the last several episodes, we've had guests join us we've had rousing conversations, but they've they've ran a little bit long, and we haven't been able to discuss some recent interesting cases. So we thought we'd compile some of those some of those more interesting cases and share them with our listeners today.

Jeff Lewis  1:20 
Yeah, and the first case we want to talk about today comes out of the second district, and represents an extreme enforcement of the procedural rule requiring that a party support every argument in a legal brief, with a citation to legal authority. In Syngman vs. imdb.com, an attorney representing himself in a lawsuit he filed against the website imdb.com. And that's an internet database tracking intimate net database that tracks movies and actor information. Now, the opinion is very short. He wouldn't know many details from the opinion because of how short it is. But I did some digging on the online dockets and found out that imdb.com responded to segments lawsuit with an anti slap motion which was granted and segment representing himself appealed. And in a very short opinion, the second district affirmed by noting that statements table of authorities included only a citation to the statute that authorizes an appeal from judgment and no other legal authorities. And the Court of Appeal invoked the rule that appellants have the burden of demonstrating ere the trial court, excuse me, the Court of Appeal affirmed the order. This seems like the right result, but very extreme to me. And it's enough published decision. And in my experience in pro par improper parties are given extreme latitude by the courts. But this improper was an attorney was not. What did you think about this decision? Tim?

Tim Kowal  2:54 
Yeah, I agree with you, Jeff. And you're not lying, that you wouldn't get that information that you you told you wouldn't even know that this is an anti slap case. The the opinion, I think was was less than two pages long, didn't give a hint as to what the case was about no facts, no indication, what the what the appellants legal arguments were. The court just said that, well, there's no authority offered for those legal arguments like they could have been righteous arguments that could have been self evident arguments, but because they were not supported by citations to authority. It was it was summarily the judgment was summarily affirmed, essentially, it was I thought it was it's potentially a dangerous opinion, because it is published, as you mentioned, and there's no context given. So you're so litigants are left with this published opinion, that can be cited, I think will be cited anytime there is a even a self evident proposition in a legal brief that does not is not accompanied by a legal citation, hey, and needs to be ignored and deemed forfeited under the Syngman published decision?

Jeff Lewis  3:56
Yep, I'll be adding this case to my list of authorities to cite for that proposition. Yeah, you're

Tim Kowal  4:01
mischievous authorities. And also on the point that it's a published opinion. I don't see that it meets any of the criteria for publication. It's not a it's not a new rule. Other than, you know, maybe my cynical taking it to further extremes. I don't know that the court intended it to take it to that extreme. It didn't offer any any elaboration on on that point. i But yeah, I thought it was strange that it was published. I'm not sure what the court was intending to signal by publishing it.

Jeff Lewis  4:31
Yes, as a caution to our listeners, be sure to cite more than one case or one legal authority in brief going forward to avoid this result.

Tim Kowal  4:40
Right. And Jeff, you also shared a similar case with me a couple of weeks ago, and I wrote that up on my blog. The case is Center Street development company vs superior it's from November 2021. It's the decision summarily affirmed a summary judgment, but it also but it gave no reasons that I had to pay a fee to download some of the briefing from the superior courts website just to know what the case was about. It was turns out it's a real estate dispute involving some 2700 acres on the Mendocino Sonoma County line just off of Highway 101. Several heirs held an interest in that property and one of the heirs Robert had sold a fractional interest in his capacity as beneficiary of a trust and the transferee moved for summary adjudication to quiet title to the transfer. The trial court denied summary adjudication, finding that the transfers of the other fractional interests were invalid because Robert never actually acquired an interest from the estate and because Robert was barred from transferring under the trust, spendthrift provision. So with all that, the Court of Appeal, thought it was obvious that I like and I quote, obvious that the trial court was wrong. Well, I got confused, just reading off my summary about what happened. I didn't think anything was obvious, but it's safe to say that the trial judge did not think that she was obviously wrong, either. And it's clear that the defendant did not think the judge was obviously wrong. So I think that the owed it to everybody really to offer some reasons for its analysis. And I think the California Constitution agrees Article Six, section 14 of the of our state constitution provides the decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated. And I don't think the opinion and Center Street conforms to this standard if the court met

Jeff Lewis  6:32
another, another extreme extreme outcome. Yeah. We have spoken over the past year about the perils of using the Judicial Council form. For filing notices of appeal, my office tends to use pleading paper, entitled notice of appeal, but there's a judicial council form that gives you checkboxes indicating which part of the judgment or which order you are appealing. And here's an example of another case where an appellant almost lost the right to appeal because they checked the wrong box on the form. The case is Alex and Annie LLC versus Warren, that arises from the fourth Appellate District division one in the case involving appeal of a sanctions award, the appeals brought by the margaritas law firm. And the appeal was fraught with problems, including the factors and attempt to appeal a sanctions order by the wrong party. And the sanctions order was not opposed in writing at the trial level. But what I want to focus on is that the appellant in this matter, filed the Notice of Appeal using the Judicial Council form, checked the wrong box regarding the type of order that was being appealed, appealed from and failed to identify the proper party and the Court of Appeal kind of was forgiving, I guess, was it a forgiving mood and exercise its discretion to liberally construe the notice of appeal by referring to the Civil Case Information Statement filed weeks later, to save the appeal? I don't think party should count on courts doing so in other cases. And this this case represents another good example or good reminder that using the Judicial Council forms can create unnecessary problems.

Tim Kowal  8:08
Yeah, yeah, I agree with you. I don't think that litigants should count on that. But I think I have seen a little bit of a trend of courts being more lenient on this kind of issue. I had a case where the almost the exact same fact that happened I was on I was the respondent and I moved to dismiss on that basis that the the attorney, I think in that case, the attorney had a sanctions award against him. And he filed his notice of appeal. But as the attorney on behalf of his client, the client didn't have a sanctions award against her. And we got the appeal dismissed on that ground. I think under I think this Court obviously would have would have reached and found a way to save the appeal. So I don't know. But I I agree with your point. I don't think that litigants should should count on the mercy of the Court of Appeal to save their appeal. So I had I found this other this other recent case, very interesting. It's about whether you should bring a court reporter to a hearing even if it's not a dispositive hearing. It's just a Law of Motion hearing. And and there's not going to be any testimony offered. And I got to thinking that I'm that after after we get rule eight point 1115 abolish, Jeff, I think we should leverage the mighty influence of this podcast to fix the court reporter problem in the California State courts. The case is why shatel vs. VO? It's it's a second district case. It's about whether litigants need to have a court reporter at a law and motion hearing to appellate justices wound up disagreeing sharply on the question. So regardless of what the majority held, in this instance, what you should be taking away from this decision is yes, you do need to have a court reporter even at a mere law and motion hearing where no testimony is offered. So writing for the majority justice Bendix held that the lack of a reporter's transcript at a hearing on a motion to compel arbitrary was not fatal to the appeal. The majority opinion is logical, it seems to reach the right result in my view. But Justice Cheney wrote a dissent that raises important issues about whether the majority evaded certain procedural safeguards in order to reach its result. And Justice Cheney's strongest in my view is that the procedural rules like supplying a full record must be applied consistently to all litigants in order to afford due process and equal protection. And she wrote, quote, courts tipped the scales when they declined to consistently apply those procedural prescriptions and quote,

Jeff Lewis  10:38
yeah, I have to say, I read this case, and I tend to favor the dissent by Justice Cheney. Just because there's no court reporter present the hearing doesn't mean the parties couldn't attempt to procure a settled statement or greed statement, as a stand in or replacement for the reporter's transcript. And I know they're a big hassle to get either settled statement or agreed statement. But I think Justice Genie on the right approach here.

Tim Kowal  11:00
But Jeff, they're there more than a hassle. You don't even have a right to a settled statement or an agreed statement. And agreed statement is when you can get your opposing counsel to basically stipulate to what was said on the record and opposing counsel can simply saying they're not going to agree to that. And then the judge has settled statements when you get the judge to settle a statement saying what happened on the record, and the judge can just say, Now, I'm not going to settle that I'm not going to order that. And so what do you do you get a court reporter is really the only game in town. And that imposes a huge cost and it's access to justice issue. If you if your cases is already on a tight budget, you might not be able to afford to send a court reporter to every single every single law in motion hearing. Yeah, well, you

Jeff Lewis  11:46
know, maybe I want a perfect storm arrives. When you have a case where there's no court reporter, it's a dispositive hearing. And opposing counsel won't stipulate to the statement and trial, the trial court won't issue and settled statement and there's no agreed statement. Maybe in that case, you could bring up the access to justice issue. If the Court of Appeal were to attend some out to apply this procedural rule and say you don't have the record before us, and we're not going to rule on the merits.

Tim Kowal  12:13 
Yeah, yeah. Well, here's what I would propose. I submit that the legislature and the judiciary maybe have been a bit too cavalier about how difficult that they've made the procuring the appellate record for litigants. As some years ago. I'm aware that the California Legislature implemented a pilot program that made audio recordings of all court proceedings, and those audio record recordings could later be made into transcripts. And this is this is the methodology that's used in federal courts. And it guarantees the availability of an appellate record in in every case, the infrastructure is still there in the California Superior Courts from what I understand. But for whatever whatever reason, our state legislature chose to discontinue the rules that would allow their use. So so long as that is the case, I can't accept that jurists are being quite on the level when they suggest that the rules about record preparation are set up fairly and reasonably. It's clear in my view, it's they're clearly not.

Jeff Lewis  13:10
You hear that sound, Tim? That was a sound of 1000. court reporters unsubscribing from our podcast. I suspect the court reporter lobby might have some opinions about your proposal. But I do agree the availability of those audio records with computer software or court reporters that can trick and transcribe that audio to a record. It's a much easier process than having to go through the cumbersome agreed statement or settled statement process. I endorse your proposal. Even if some of our court reporting listeners do not

Tim Kowal  13:42 
well, maybe the court reporters can can charge a premium for recording those those audio recordings.

Jeff Lewis  13:52
The next the next case I want to talk about involves Purdue Pharma. I want to bring up this case because it involves an appellate opinion that was really interesting read and the appellate structure for bankruptcy decisions where someone seeks a review of a bankruptcy court decision, you know, go up to a two or three or nine judge panel, there's one judge that Review Order of the bankruptcy courts and interesting procedural setup. But anyway, in Purdue pharma as many people know Purdue pharma, pharma made millions and millions of dollars selling Oxycontin, and in recent years at Purdue at the civil and criminal cases returning pertaining to aggressive marketing of its products, and perhaps liability for the opioid crisis, and the company filed for bankruptcy protection. And last year, it was widely reported that several states and Purdue and the family that owns Purdue the Sackler family agreed to a settlement and the family members had agreed to contribute a fixed sum to the settlement, and in return, the family members received the equivalent of a discharge for immunity for further legal proceedings, even though those family members were not technically parties to the bankruptcy, and were instead subject to the jurisdiction of the bankruptcy court. The settlement was approved over the objection of many creditors, several states objected to the settlement. But nonetheless, it was approved. And all the parties that that objected to the settlement, took it up on appeal to overturn the order approving the settlement and bankruptcy court. Those appeals are first heard by United States United States District Judge. And in December, the district judge of the district court judge issued a scathing opinion overturning the appeal. The judge noted that the Sackler family had removed over 10 billion in profits from the company over the years yet, we're only going to pay a fraction of that part as part of the settlement. And Purdue Pharma has announced plans to appeal the district court's ruling to the second district or excuse me, the Second Circuit. But again, I bring this case up because the oil opioid addiction crisis is so widespread. And also because the writing of this appellate decision by District Court Judge Colleen McMahon was very good, a great read for anyone wanting an understanding of this litigation, the outer boundaries of bankruptcy court authority dealing with parties that are tangentially impacted by bankruptcy. Did you have any thoughts about the case, Tim?

Tim Kowal  16:15
No, that's, that's interesting. Just based on your description, I like the I like the outcome. There are there are limits to what what the parties can settle. And it sounds like the judge was not impressed with with the level of fairness that the settlement reached, what did you think I thought it was

Jeff Lewis  16:29
the right result meaning the overturning of the settlement. I also note that the parties have been ordered to go to mediation, before the Second Circuit hears the appeal. And I suspect that if the Sackler family puts in more money that the objecting parties might be satisfied.

Tim Kowal  16:47
All right, the next case I want to discuss deals with collateral orders. And there's a there's a split, There's long been a split a majority view and a minority view about what constitutes collateral orders. So the case is State of California versus Southern California Edison, it's out of the fourth district second division, and it's an unpublished decision. It holds an orders granting a summary summary, a motion for summary adjudication can be appealable as collateral orders, but just not in this case, because it did not order the payment of money. And that's the that's the breakdown of the majority and the minority view, does an order have to have to order the payment of money or in order to be appealable as a collateral order. And the Court of Appeal here says it does have to order the payment of money. But take caution anytime an order can be appealed. Remember that it must be appealed. So that's the downside to to appealability. It's nice to have orders that are appealable. But you can't sleep on your rights, then it's a very it's very scary when a court says that orders ordinarily assumed to be appealable might be appeal in certain cases, because then then that creates a question mark, and you're going to have to have a Notice of Appeal ready?

Jeff Lewis  17:59
Yeah. Yeah, it's the conclusion. I'll tell you. What I found interesting about reading this case is as a Hail Mary argument in the reply brief. the appellant had asked the court that if the court found the order, not appealable, well just treat it as a writ petition. But because the appellant had waited to raise this for the first time in a reply brief and not at its opening brief, the court never reached this issue. That's a good lesson lesson here is if you're appellate counsel, and you harbor any doubts about the appellate appeal ability of an order, whether or not your opponent might bring it up in terms of the ability of the order, don't wait till the reply brief to make that kind of Hail Mary argument. Be upfront about the concern.

Tim Kowal  18:40
Yeah, that's true, although that that reminds me when the episode when we had our Jaco sin on and and everyone was caught off guard there because everyone thought that the order the probate order, there was appealable. It turns out, the Court of Appeals said now, I don't think this is appealable. But we're going to go no one raised it, whether it can be reviewed as a repetition, but we're just going to go ahead and review it as a repetition anyway, sometimes I wonder if a court wants to review something, it's gonna review it and if it doesn't want to review something, then it won't review it. Alright, so that concludes the cases we wanted to discuss today. We did have a little bit of court news and news from the legal community. And we'll start with some very sad news. Jeff, you and I saw that, that this week. I think it was January 3, it was reported that Kelly urine be passed away. Kelly was a deputy district attorney here in Orange County. She had been a guest on our podcast on episode 16 Back in September 2021. She died apparently of complications from COVID. And my wife and I knew Kelly on a personal level. We're very saddened by that news. Our hearts and sincerest condolences go out to her family. We'll miss you, Kelly.

Jeff Lewis  19:46
Yeah, you know, I never I didn't know her personally, I met her for the first time on this podcast, but I better to be bright and engaging. And it's a real loss for the legal community and the DA is office and yeah, for real. Also, you know, we record this podcast in early January 2022, and both resurgence of omachron and COVID. The federal courts in Southern California have announced the suspension of all jury trials in LA Orange County and Riverside. And Los Angeles Superior Court is suspending for at least for two weeks criminal trials. So that's gonna impact appeals in those courthouse as well.

Tim Kowal  20:22
Right, and that's happening in appellate courts, too. It's reported that the Federal Circuit and the Seventh Circuit are now suspending their in person oral arguments. And so those are going to be conducted remotely again.

Jeff Lewis  20:35
Like circuit two, I think I recall reading that the Ninth Circuit said they're going to jump to remote although they had planned on having arguments in January. Let's let's end on a humorous light note. On occasion, I do try work in addition to appellate work, and sometimes emails or text messages can make or save a case. You know, you find that smoking gun email or smokey good text, and I found a meme on law Twitter that reminded me of this principle about our entire case can turn on a single text or email. And the meme said the meme that was posted on law Twitter said dance like no one is watching a text an email like it will be reading court one day. I think I'm going to add that to my advice that I give my clients going forward.

Tim Kowal  21:17
Yeah, I like that one.

Jeff Lewis  21:20
Well, I think that wraps up this episode.

Tim Kowal  21:23
Alright, so if you have suggestions for future episodes, please email us i Although I am embarrassed to admit I have lost my password to the cow [email protected] email account. So for now, to ensure timely responses I'll get I'll just put out my personal play real address is T co wall AT T V A law.com. That's T Kowa L at Tango Victor alpha law.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. See you next time.

Anouncer  21:58 
You have just listened 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. 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 ca l podcast.com. Thanks to Jonathan Caro 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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