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California Appellate Law Podcast - Jeff Lewis

The 9th Cir. “Reimagines” Diversity Jurisdiction

Tim Kowal     October 10, 2023

The one sure thing your law-school loans purchased is instant recall of the fact that “federal courts are courts of limited jurisdiction.”

But not as limited today as when you signed your promissory note. We discuss Impossible Foods Inc. v. Impossible X LLC, the recent 9th Circuit decision holding that specific jurisdiction over a defendant may be based on general historical contacts, even though not connected to the claims in the case. Judge Van Dyke dissented, calling the majority’s holding “potentially the most radical reimagining and expansion of specific jurisdiction in decades.”

We also discuss:

  • Impeachment evidence improperly excluded at trial? Published authority says this is per se reversible, but a new case calls it harmless error. It’s not published, but its reasoning is sound.
  • Seeking costs-of-proof attorney fees because your adversary denied your RFAs? Some cases grant these fee motions liberally, but two recent cases caution that more precision is needed.
  • Appealing on a pure issue of law? You still need an oral record on appeal. Denial of petition to compel arbitration affirmed because of the lack of a reporter's transcript.
  • Startling: Ex-husband took out a life insurance policy on wife, naming himself beneficiary. Also startling: Court ordered him to change the beneficiary to wife’s favorite charity, and keep the policy current.
  • Uncivil attorney got a 40% fee cut. “Incivility between counsel is sand in the gears. … Excellent lawyers deserve higher fees, and excellent lawyers are civil.”
 

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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

Jeff Lewis  0:17 
I am Jeff Lewis.

Tim Kowal  0:19 
And I am Tim Kowal all both Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience with trial and appellate attorneys some legal news and perspectives they can use in their practice. If you find this podcast helpful, We gratefully appreciate any referrals to your colleagues.

Jeff Lewis  0:34 
Right before we jump into this week's discussion of cases we want to fake 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 on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments. In March 23. Casetext's launch co counsel, the world's first AI legal assistant, co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy listeners of the podcast enjoy a special discount on casetext's basic research a casetext.com/calp That's casetext.com/calp.

Tim Kowal  1:14 
All right, Jeff. So it is the it's early October. And we have some cases and tidbits that we want to share with our listeners today. So let's just get right into it. The first one I have on my list is Impossible Foods Inc versus impossible x. This is a case out of the Ninth Circuit, it's a split decision, and it's on personal jurisdiction, and it's specifically on the doctrine of specific jurisdiction. The question or issue raised there is may specific jurisdiction be based on past contexts with the forum. And these are the analysis of past context, Jeff usually goes to analysis of general jurisdiction, but the court here does say that the that a court may rely on past general context with the jurisdiction for the specific jurisdiction analysis and found that there was specific jurisdiction here over a dissent by Judge Van Dyck so the basic rundown or the facts here is that Impossible Foods is the creator of the Impossible Burger that most listeners probably have heard of, by now or have tried by now Impossible Foods learned that there was yet another company that was using the term impossible and its moniker that company is impossible. Impossible X was using that the impossible brand on some Personal Fitness and Lifestyle website. So not on food products, but on products and services that are were somewhat adjacent and so Impossible Foods was concerned about some crossover and copyright issues. So what happened here is that the sole owner of impossible EC lived in Texas so the question was, was Impossible Foods trademark complaint, which sought a declaration that it was not violating any of impossible X's trademark rights was that trademark complaint properly filed in federal court in California? Because remember, the sole owner operator of impossible X was way out in Texas. So so impossible, X filed a motion to dismiss for lack of specific jurisdiction in answering the question whether there was specific jurisdiction, and again, consider that impossible x had not done anything to enforce its trademarks in California. And that fact indeed stuck out to the district court who granted impossible exes motion to dismiss and found that there is no specific jurisdiction that but a divided panel and Impossible Foods versus impossible ex reversed, and judge breasts writing for the majority reason that the defendants minimum contacts with a forum as necessary to justify specific jurisdiction need not relate to the trademark enforcement. And instead, the court may look to the defendants general business development historical contacts with the forum, even if those activities did not relate to the enforcing of the trademark, which was the subject of the lawsuit. As I mentioned at the top judge Van Dyck dissented in a rather fiery dissent, Judge Van Dyck would have drawn the bright and bright line between activities relevant to the lawsuit, which was trademark enforcement and the past business generating activities in the forum. So here's here were some of the peppery statements a judge VanDyke made in his dissent, he said that the majority quote, reconceptualize his specific jurisdiction as a kind of backward looking general jurisdiction light and pushes our precedent in a new and troubling direction. Judge Van Dyck also says that the majority is rule quote, is also potentially the most radical reimagining and expansion of Pacific jurisdiction in decades. And he goes on by providing a hypothetical about, for example, Mark Zuckerberg, who first launched Facebook from a Harvard dorm room, and incorporated in Florida, before decamping to headquarters in California, under the majority's use of past general jurisdiction to To bolster specific jurisdiction, Massachusetts and Florida could now effectively exercise a form of specific jurisdiction over any of the social media giants global operations. That was how judge Van Dyck criticized the majority opinion. I don't know, I kind of thought that there was something to judge Bandikui dissent there. And that there is a there is a troubling expansion going on in the majority. What do you think, Jeff?

Jeff Lewis  5:23 
Yeah, you know, I'm not an expert on specific and general jurisdiction, but I'll say this, usually, when there's a state that doesn't have jurisdiction, and there's no alternative, meaning that somebody doesn't have any contacts with any states, I look at decisions denying jurisdiction or dismissing with a jaundiced eye, but here, they could easily file in Texas, I suppose. So, yeah, that's where I that's where I come out on this. Yeah.

Tim Kowal  5:49 
Yeah, I agree with you. Sometimes it does seem like a little bit of a gotcha that there's there conceivably could be No, no good place where the defendant could be sued. But it seemed fairly easy to sue this defendant in Texas, there's no dispute that there would be specific jurisdiction in Texas and, and Impossible Foods. As a nationwide brand. I don't think that it would have been in harsh hardship on nationwide foods to sue.

Jeff Lewis  6:15  
Yeah, I wonder what the story is behind the story. People fighting to get into a California Court as opposed to a Texas court. Generally, people fight to avoid Lord lawsuits in California, right. I'm sure there's a story we're missing here.

Tim Kowal  6:27 
Here's one other interesting appellate angle to this and it goes to maybe a general lesson or takeaway from the Impossible Foods case. There was also another rift between the majority and minority opinions for argument, underscoring the novelty of the majority's ruling Impossible Foods council had conceded that it was not arguing that the court had general jurisdiction based on past context. So council was aware that that relying on general historical context sounded too much like general jurisdiction, and they knew that they couldn't establish general jurisdiction. And Judge VanDyke said, look, that was enough. That was enough to find that there was a waiver here. So majority you cannot rely on on these general business development activities, not only because it is it is beyond what the doctrine of specific performance allows, but because counsel waived it definitively at below so that the record on that issue was not properly developed.

Jeff Lewis  7:22  
Yeah, yeah. No, that's interesting point there another story behind this story, I'm sure as to why they took that position below. And I wonder if following remand, whether the company formerly known as Twitter will seek to intervene this case to protect its trademark of X. There you

Tim Kowal  7:36  
go. That could be as well, here's my takeaway from from the Impossible Foods case, Jeff, and that is kind of takes off from the from the waiver argument, make sure that if you are arguing that specific jurisdiction applies, don't waive any argument, that historical general context are relevant to the specific jurisdiction analysis, even though you know, past historical general context, go to the general jurisdiction analysis under the Impossible Foods, case, precedent, that it can also support specific jurisdiction, so don't waive that argument. Yeah, the point. All right, next case is involves exclusion of impeachment evidence, this this case, people versus being up. It's an unpublished California state court case. So as we know, we can't cite to it. But Jeff, we're always on the lookout for these interesting cases where there is evidence excluded, and it leads to a different opinion or a different result. And this one stood out to me, it was actually caught by Professor Shawn Martin. And here's here are the facts of people versus being on the court had admitted a 911 call of Biggums girlfriend reporting that Bingham had beat her up with a with this heavy black metal lock. Right. And but then the court excluded her subsequent statements where she recanted that that in fact happened. The court agreed that that was error. If you're going to allow hearsay evidence in the form of this 911 recording to come in, you have to allow the defendant to impeach that evidence. So it was error to exclude it. But as we know, Jeff, it's not enough just to show that there was error, you have to show that the error was, was prejudicial, but the court did not. It found that the error was harmless error. So the conviction was still affirmed. The defendant did have a point because a different outcome occurred in in a different case, people versus Corella, which seemed to be the governing authority presented very similar facts Grella noted that is the jury who must determine credibility and when the case turns on the statements of a critical witness who doesn't appear at trial. The court commits reversible error when it excludes inconsistent statements. And the reason it's reversible error is because it prevents the jury from making a credibility decision based on all available evidence. But the Bingham court here decides not to follow that holding incur in Corella, and it gives some reasons, Jeff that I think are the same valid to me. The California constitution only allows a Court of Appeal to reverse when there has been a miscarriage of justice. And a miscarriage of justice only exists when the court determines a different result would have obtained based on examination of the entire cause. The Corella court's conclusion that there was prejudice just because the jury was prevented from making that credibility determination doesn't seem to doesn't appear to consider the entire record. So it's a little bit of a different standard than the one called for under the Constitution. So the Bingham Court considered the facts that Bingham was seen with the victim five minutes prior to the incident where the where the victim was, was seen with a with a bloodied face. He was found with a lock in his car after the beating, and then his statements to the victim during a monitor call at the jail acknowledged that he saw all the blood and that the victim reconciled with Bingham before she recanted. So under all that evidence, it could be that the court concluded that now that the recanting was was engineered, and it doesn't impeach the witness the 911 call. Yeah,

Jeff Lewis  11:04  
so an imperfect trials. Okay, if there's overwhelming evidence of guilt. Yeah. When I read cases like this, where the Court of Appeal has found there's absolutely an air, but it's harmless air, how they describe it terms, well review the totality of the evidence in the entire record before us. The guilt was overwhelming. I don't know where the line is. And I don't know how criminal appellate lawyers find that line between evidence of overwhelming guilt and maybe it's a close call. It's a hard hard job of criminal appellate attorney has of showing prejudice in this kind of case. Yeah. If they take it up on review, and exploit the difference between being dumb and Corella, in terms of trying to get the Supreme Court to pay attention.

Tim Kowal  11:48 
Yeah, this is a hard one, because again, the the Corella case is the one that's published and binding and the holding of Corella, again is that if the court takes away from the jury the ability to to wait credibility determinations based on all available evidence that's reversible error, you do not pass jomart. That's that's the end of the analysis. And even though the Bingham raises a good point, that that's not quite what the California Constitution requires. Begum is not binding authority, Corella is still the binding authority. But if you run into this issue, where we're you know, that that the evidence that came in, that sought to be impeached is is really the straight dope and the impeachment is, is, is specious. And in the trial court should keep it out. And if it's kept out, it's it doesn't change the result, then, then then us becomes criticism of Corella, you can't cite to being um, but you can use its reasoning, and I think it probably has a better reasoning. Okay, next, next pair of cases, Jeff, this comes up in this we're back into into civil territory here civil civil lawsuits. This, these two cases deal with requests for admission, and the costs of proof attorneys fees provision. Now this is I still think it's a bit of a little known entitlement to fees Jeff, where if you don't have contractual or other right to fees, you can still get at least some portion of your attorneys fees, if you propound requests for admission to the other side, that should be admitted, because there's not a reasonable dispute on the issues if the other side refuses to admit them, and then you have to incur attorneys fees to prove them, then you will be entitled to your reasonable fees to prove the matters in that request for admission that we're not admitted by the other side. And I have seen this I think abused or at least borderline abused with requests for admission that are basically just just reformulated Casey instructions asking, admit that there was no breach admit that there's no causation admit that there's no damages, just just reciting all the elements of the case. And when the other side says, Well, no, I'm not going to admit that my that my case should be dismissed, then, if the defense happens to win, then they go and they file a motion under Code of Civil Procedure 20 33.4 24 their costs of proof of proving that their request for admissions should have been admitted. And I see these are frequently granted, but here are two recent unpublished opinions that that pairs that back a bit so the first and both of these cases were submitted. were referenced by my podcast alumnus Mark Alexander. He first directs us to jury key versus zitter. It's an unpublished out of the fourth district division one in September of 2023, where the costs of proof sanctions were denied because the request for admissions were either of no substantial important or they were not unreasonably denied. So what happened in jerky versus zitter is that a drainage dispute developed between property owners and downslope neighbors, and that resulted in plaintiffs losing a trespass claim but prevailing On a nuisance claim, the court denied plaintiff's request for costs of proof sanctions and with with requests of those requests for admission, the ones on the trespass claim were not of substantial importance, according to the court, given that this claim was rejected and the requests for admission on the nuisance claim we're not unreasonably denied. Remember, the standard is not just that you can be liable if you deny a request for admission, only if you unreasonably deny it, if really all the evidence supports that. That issue should be admitted and you still deny it, then it's it's an unreasonable denial. But here, the court did kind of give teeth to that element of the statute, that there has to be a denial has to be unreasonable to expose that denying party to attorneys fees. And then one other interesting procedural issue in the drinkie case, the appellate court agreed that no separate statement is allowed in a cost of proof proceeding. As we all know, separate statements are required in discovery motions, but not here, because it would allow the party to exceed the page limit requirements.

Jeff Lewis  16:04 
Now, I've done cost of proof motions before I've never used a separate statement, but I don't think we've ever seen one. Have you seen one tip and

Tim Kowal  16:11 
not in a cost of proof? Maybe would have occurred to me that? Well, it's under the discovery discovery act? And doesn't the statute require that any motion brought under the discovery act be accompanied by a separate statement?

Jeff Lewis  16:25 
Yeah. Yeah, that's interesting. Maybe read it? Yeah,

Tim Kowal  16:28 
I'd have to look at the structure of the discovery act and where 20 33.4 20 falls in there. But obviously, the Court rejected a here again, it's unpublished, but looked at the reasoning and the jury key versus zitter case. It supports the proposition that you do not and indeed should not be filing a separate statement along with your motion for fees for cost of proof fees. Okay. And then the other costs of proof case, also brought to our attention by Mark Alexander is Flores versus medical Holdings, Inc. It is out of the second district third division, also September of 23. There the defense requests for cost of proof sanctions were denied, because the statute of limitations issues that were raised by the defense in that case were in precisely tied to the merits. And there was no apportionment of Statute of the statute limitation tolling issues established. So what happened here is that the defense that propounded request for admission concerning the issue of statute of limitation, the requests were denied. But the defense went along and ultimately prevailed on those issues concerning statute limitations. And so the defense decided, well, I approved those issues, the plaintiff should have admitted them. So I'm going to move for cost of proof under 20 33.4 20. But the lower court denied the motion and the Court of Appeal affirmed pointing to two main problems with the with the abuse, establishing that there was no abuse of discretion. First, there was some lateness, some of the RFAs did not focus solely on the statute of limitation, the lateness issue, but it also bled into merits determinations. And so these these, these requests for admissions, if you're trying to get cost approved, they have to be narrowly focused on discrete issues, they can bleed into other issues in case law establishes that sanctions are only narrowly tailored with respect to costs incurred in making that proof. So it had to be solely related to the statute of limitations defense that the defense prevailed on. And then the other The second issue the Court of Appeal discussed was although the request for admission that was denied, related to the statute limit limitations tolling, and that issue might have been a winner. The defense did not separately account in its billings for any such fees as the statute requires. So the takeaway here is, is to request with precision, the cost of proof amounts tethered to specific issues in order to be successful. And, and maybe one one practice that I've tried to implement Jeff, when I am looking down the road and seeing potential costs of proof motion that I might want to file later on is to try to separately bill for those issues. So I can just easily point to those are the those are the fees my client incurred that were directly related to the denial of these requests.

Jeff Lewis  19:08 
Yeah, keep your face narrow, and keep your your your good notes on your, what you're proving up at trial. I gotta tell you, though, when I'm in trial, I'm focused on winning the case and don't always have my my eye on post trial motions like this.

Tim Kowal  19:22 
It's a different thing to be able to keep track of those during the trial. If you don't have an associate or paralegal with you to separately, keep a timestamp of when you're you're litigating which arguments at trial and when to be tough. When

Jeff Lewis  19:37 
I've had success with these motions in the past, it's usually associated with an expert when you have an RFA on an issue that an expert is going to testify about. It's super narrow, and it's super easy to prove up with the cost of proof work because it's basically the experts time and try on a depo All

Tim Kowal  19:53 
right, next next one here. Here's a short one, Jeff, that we could we could chat about this one for a minute. We talked about this issue sometimes of When there is a hearing, and it's a pure, it's a pure legal issue that you're talking about at the hearing. And the judge makes a ruling, and it's against you and you take it up on appeal. So you don't have a court reporter has happened here. He was only a pure issue of law and the Court of Appeal has to look at it de novo. Anyway. Jeff, do you really need an oral oral record of the proceedings? Yes. Well, you're proven right in Oh, llegue versus United care facilities out of the Second District Court of Appeal. The court noted that the this, this dealt with a denial of a petition to compel arbitration. So the petitioner raised that, hey, we can't litigate this in regular court. We have an arbitration agreement. It needs to go to to arbitration. But the court made a legal interpretation of the arbitration agreement and said that doesn't apply here and denied it. And the and the Court of Appeal said, Well, you didn't give us an oral record of the transcript. So even if you have a purely legal issue, you need an oral record, especially because the court issued a minute order that just said denied without any rationale. So the Court of Appeal said, You don't give us anything to go off of I don't know how the minister didn't say the rationale. And I don't know what was said at the hearing. So

Jeff Lewis  21:16 
yeah, yeah, it may very well have been a pure legal issue. But to get that ticket to be able to argue that up on appeal, either had to have a court reporter to a settled statement. I don't understand this rule. I mean, this case is correctly decided under the law. Yeah, generally speaking, abuse of discretion decisions, no record case dismissed for inadequate record or appeal. Orders affirm because of no record. But I don't understand if these parties had jumped through the hoops and done a settled statement. I argued this, I argued that the judge ruled this doesn't really help the Court of Appeal here, determine what happened and whether or not was a pure question of law, because you know, the settled statements just gonna adopt plaintiffs appellants position that it was Yeah, pure question of law on the respondent, when they have their say on the settled statements going to be Oh, fact that she was in fact, she two factor she three? I don't understand the basis for this rule.

Tim Kowal  22:09 
I'm with you. I'm similarly vexed by this by this outcome. It is a if it's a pure legal issue. I mean, we've talked about this before. Obviously, if there's testimony given, then you got to know what the testimony is, you have to presume that the any of the testimony given was going to was substantial evidence to support the outcome. Even if there is a if it's an abuse of discretion standard. And there's some discretion the court may exercise and it's based on some factors that could have been argued at the hearing, then maybe we have to presume that the court did not abuse its discretion, based on what we have to infer happened on the record that was not provided to the Court of Appeal. But if it's if it is a pure legal issue, I'm having trouble imagining what possibly could have been said that would change the outcome on a pure issue. That was a pure issue of law that had to have been contained in the briefs. If it's not properly contained in the briefs, then you can find it's a waiver, but not affirm based on a record defect. Yeah. Yeah. But here was a one other one other point on on this one, Jeff, counsel did seem to see the writing on the wall here and in desperation, filed a declaration with the Court of Appeal, basically saying, I swear to God, Your Honor, nothing happened at this hearing that would be germane to what the court has to decide on appeal. The court said, Nope, no dice, quote, We reject defendants request to supplement the record with counsels declaration about the proceedings in the court as such a unilateral declaration is not a suitable substitute for a transcript of the proceedings and quote, well, I

Jeff Lewis  23:45  
do agree that a declaration is not the same as a trial tested trial court level test. It's settled or agreed statement where somebody else does the dirty work in terms of getting the final facts out on the table.

Tim Kowal  23:57 
Yeah, that's that's a correct, certainly correct statement of Orthodox record, appellate record preparation rules. The I think, I think the real takeaway here is that a settled statement, you know, is mysterious, but not all that difficult. All you have to do is just start the process as identify on the designation of record filed within 10 days after you filed the Notice of Appeal, that you elect to proceed with the settled statement. And then then the process starts and you just submit a proposed statement to the trial court. And the court is supposed to then the other side will submit any objections and then the court settles a statement and the court has an obligation to do that. And if there truly was nothing that happened on this record that was germane to this legal issue, then you get the settled statement, and then you can proceed to the merits of your appeal. Yeah, yeah. Yeah. All right. Jeff, your turn. What do you got?

Jeff Lewis  24:47  
I got a couple of cases that caught my eye. The first is a published decision. Paris, P A. R R is Paris vs. Christopher. And this was a an appeal involving a domestic violence restraining Order. And this caught my eye for a couple of reasons. There are two main holdings the case, one not surprising and one very surprising let me set the table after tumultuous marriage. Ex Wife seeks a domestic violence restraining order against her ex husband ex wife prevails, gets the restraining order and ex husband appeals and the key. One of the key issues on appeal was whether a trial court in his in assessing the ex wife's claim that her peace was disturbed as a basis for the restraining order. Is the trial court supposed to employ an objective or subjective test? Meaning does a trial court have to ask whether the hypothetical reasonable person would feel their peace was disturbed by the respondents conduct? Or is it enough that for the trial court to simply find that this particular petitioner, the person seeking the order subjectively felt their peace was disturbed?

Tim Kowal  25:54 
Not an objective test. Yeah. Well, the

Jeff Lewis  25:57 

Court of Appeal rejected the ex husband's argument on appeal and found that the absence of the word reasonable or unreasonable in the statute on this particular factor means that the legislature did not intend to require a petitioner to be a reasonableness test as to whether or not the petitioners sense of peace was disturbed. Wow, no, I

Tim Kowal  26:17 
just thought reasonable was implied in every in every legal rule.

Jeff Lewis  26:21  
Not so the court noted that a reasonable standard does apply to other parts of the Act such as whether someone is in fear of imminent fear of bodily injury, that has to be a reasonable fear. And so I gotta say this results, not surprising to me, the trend on these CHRO DVR o cases is to make it easier and easier for petitioners to get restraining orders and for those orders to be affirmed on appeal. But the next issue, the next issue really surprised me. All right. One of the issues that came out in that hearing is that husband or ex husband put out a life insurance policy on the life of his ex wife. And he named himself as the beneficiary. This fact alone caused ex wife to be very concerned regarding future activities of her ex husband, or there's some other factors in terms of him popping up in her apartment, etcetera. But this was a big factor for her in terms of him in the future, taking some threatening conduct towards her. So listen to this very unusual remedy, the trial court adopted in addition to issuing a DVR, which requires you know, staying away not having guns, those kinds of things, the trial court ordered the ex husband to change the beneficiary on the policy from himself to the ex wife's favorite charity, and to leave it that way. And the policy in place intact for the duration of the DVR. I'm not sure if the decision said what the duration is. But these are usually for five years. And the on appeal, the ex husband challenged this aspect of the order saying that trial court doesn't have authority over assets and can order him to continue paying a life insurance policy if he doesn't want to pay it. And on appeal, the Court of Appeal firmed holding the trial court issuing a DVR roe has broad authority under the statute to issue a quote, panoply of remedial orders. That was really surprised by that outcome. What do you think about that aspect of it, Tim?

Tim Kowal  28:17 
Yeah, that that does seem bizarre to me. I mean, it seems bizarre that the ex husband is taking out a life insurance policy on somebody, that's the first question that that went into my head is can can someone do that just unilaterally take a life insurance policy? Can I take a life insurance policy out on you, Jeff? Or on? No, I don't know if any anyone, any Joe Q public. And they myself as a beneficiary. It's a question for a life A life insurance specialist. So I get that that would trouble the ex wife. But yeah, that is a that is that is strange. I can understand and appreciate husband's argument that, hey, this is my asset. I mean, if the court is concerned that that, that he's got that he's conspiring to murder his his ex wife, that'd

Jeff Lewis  29:08 

be one thing. It'd be one for the for the court to say, yeah, he wouldn't be for the court to say, Yeah, you can't name yourself as a beneficiary named somebody else, but you're free to cancel a policy if you want. But it's forcing him to continue it in place and to pay for beneficiary of not his choosing, but basically, the ex wife's choose as an odd result,

Tim Kowal  29:29 
it does. What's What What strikes me as is the judge saying you just got powned.

Jeff Lewis  29:37  
And then there's interesting side note here, you know, in appeals, oftentimes the respondent in in a case involving substantial evidence, the respondent will say the appellant did not fairly discuss all of the evidence, including the harmful evidence that doesn't help the appellant and the appellant says no, I discussed the evidence perfectly fine. And that kind of argument was raised on this appeal respondents said I don't even come Due to the merits of the evidence based arguments, and the Court of Appeal had a really useful conversation or discussion here about getting up to but not crossing that line of discussing facts in a light favorable to the appellant and still discussing the harmful facts without a mission Omis omitting those facts, but still spinning them in your favor. If you're facing an argument on this issue, I've had pretty good discussion on the on where the line is between omission and a healthy spin on the facts.

Tim Kowal  30:28 
Yeah, that is, that's an important line to be aware of when you're briefing your facts for the appeal is you want to be an advocate, of course, but you also have to be a help to the court, you have to provide the evidence in the elements in the record that support the judgment, and not just support your side. Now,

Jeff Lewis  30:48 
the next case, I want to talk about unpublished decision, but it's just a good reminder for our profession, about the cost of in civil conduct. Here a trial court was faced with a fee motion following a plaintiff successful action with a statutory basis for fees. And the trial court actually applied an upward multiplier for the fact that the case was on a contingency basis, but then applied a point for negative multiplier, reducing a potential $1.1 million fee award to $680,000.

Tim Kowal  31:24  
Yeah, that haircut for being uncivil. Ouch.

Jeff Lewis  31:27 
Yeah. And, you know, the the plaintiff who got those fees, but not enough to get up on appeal, and that result was affirmed in this unpublished unpublished decision. Just a good reminder of the cost of incivility.

Tim Kowal  31:42 
Yeah, yeah. This case SNOC versus exact time innovations. I think we talked about this a year ago, went up on appeal once and it came back down. And yeah, I thought this was interesting. And just to give a flavor of some of the acts of unstability that counsel engaged in here, here's a sampling provided by the court. One was plaintiffs counsels tone of voice, which obviously was not reflected in the court reporters record was both belittling and antagonistic and at times it verged on the contemptuous another one counsel sent defense counsel an email entitled, quote, your most egregious and successful attempt to cause a court to abuse its authority and quote, and several other similar emails and then carrying on with with on that line counsel, certainly be littled. The court in his emails to opposing counsel claiming that defense counsel made, quote, a total fool of exploited and duped the trial court and treated the trial court as quote, an easy mark and quote, and defending his his decisions here. plaintiff's counsel argued that that opposing counsel, hey, they didn't, they didn't rebut the criticisms, in my email. They didn't even even respond to my email with all of these contemptuous remarks. And so counsel in by not replying implicitly conceded my points, and the court was not excited by that, as you might put it, Jeff, not excited by that argument. The court said quote, any response to snacks counsel would have turned into an unproductive and juvenile did not did so sparring match for my Miss was my favorite part of the opinion, Jeff is when the Court confirmed that there is no reason to respond when opposing counsel sends a a nasty gram. It is again an unproductive and juvenile did not did so sparring match, it's not productive, and silence certainly is not a concession to Attorney nasty grams. I think that's an important point to keep in mind. Because I think so often the natural intuition is that well, I have to respond to this. Well, no, you don't. Yeah.

Jeff Lewis  33:54 
Yeah. Good reminder that don't ever send an email. You don't want read to a judge. And if you're that pissed off, you know, go to the gym, play some video games, do something else, but don't write an email when your best off. Yeah,

Tim Kowal  34:05 
that was another point that was remarked on a couple of times. And footnotes in the opinion is after the court quoted some of these nasty emails sent by snarks attorney, the court would write in a footnote, you know, counsel put this in the appellate record for what reason we can't imagine. It does not reflect well.

Jeff Lewis  34:26 

Yeah, yeah. All right. Let's talk about a couple of two tidbits that I made note of. There's two that I wanted to cover today. One has to do with a new law called Perry's law. You know, Tim, usually it's an honor to have a law named after you. But this next new law, I'm going to tell you it, I think is an exception to that rule. Have you heard of a proposed federal law called ERISA law? I have not. This is a proposed law named in honor of Katy Perry, the singer in honor of a legal battle she's having to enforce a Real estate purchase agreement. Apparently an elderly seller of real estate is contesting his own competency to enter into an agreement to sell real property to Perry. And as a result of this controversy, you know, there's a suggestion that this older person was taken advantage of and that a cooling off period is needed. You could say the lawsuit has resulted in some fireworks. The sale has resulted in uproar. And the proposed law would result in a 72 hour cooling off period for certain real estate transactions involving the elderly, although it's not clear if this law is really actually going anywhere. They have a website Katy Perry act.com. I don't even know if it's hit the floor or gotten enough support. Okay,

Tim Kowal  35:40 
interesting. I appreciate your your puns. They're very, very distracting, really put me on my game there.

Jeff Lewis  35:49 
All right. And then the other thing, the second tidbit I want to talk about is SB 699. I have litigated noncompetition covenants before you know when you have either an owner of a business or an ex employee who goes to work somewhere else, and the old employer or competing business tries to enforce a Covenant Not to compete. And the usual way this comes up and litigation is somebody tries to enforce the covenant and a judge rules. It's either enforceable or not enforceable, because it comes under some exception. But this interesting new law that I think comes into effect this past month, gives additional remedies to an employee who, when an employer either imposes or attempts to impose a Covenant Not to Compete, Senate Bill 6699, which was enacted last month makes employers liable for civil violations. And there's one way attorneys fee shifting in favor of employees in actions to recover those civil penalties. So instead of just waiting around for somebody to enforce the covenant, an employee can actually sue the employer for attempting to use one of these clauses is

Tim Kowal  37:05 
that's interesting that's we have known that covenants Not to Compete are not enforceable. But yeah, they've they put some teeth in there used to be that that well, if you don't ask you don't get so so what's the what's the downside of just putting them in the contracts anyway, but now there's, if this bill passes, it's there's going to be a downside. Yeah, no, no, it's

Jeff Lewis  37:23 
past it's law. It's it's down. It's it's law.

Tim Kowal  37:27  
Okay, so, right. Alright. So be be aware, review your contracts for any covenants not to compete. They're generally not enforceable in California. And now not only are they not enforceable, but they can they expose employers to affirmative liability. Okay, I've got one, Jeff. Here, just in some in legal news here. The Supreme Court of California has denied review and the Hastings Law School renaming case. We previously reported on a slap case involving a lawsuit challenging the Hastings name to the law school, the defendants filed an anti slap motion seeking to dismiss the lawsuit in the Court of Appeal affirmed in late September of 23. The Supreme Court has now denied review. So the so the name change will remain for now. That's that's the latest on that saga. We also recently reported the Brown versus City of Inglewood case. Yeah, that was on episode 102. We know that that anti slap motion even though they're designed for the powerless, the city, the city of Inglewood successfully used it to strike and employees retaliation complaint, there was some question about whether a city council member was quote an employee for purposes of the labor Labor Code section 110 2.5. The Supreme Court has taken notice of the court this decision and granted review on the issue, quote, our elected officials, employees for purposes of whistleblower protection under Section 11. Oh 2.5. So that's one to watch. We also another recurring topic, Jeff is slap appeals in the ninth circuit. Now they're treated just a bit differently. Yeah, because there is no federal slap law. So certain things like that. So they're generally enforceable, as usual, you file your anti slap motion, and it's it's treated just like it would be in state court, except if you have to appeal then there's a whole different set of rules about which orders are appealable and under what doctrine they're appealable and whether a stay whether there are appellate stays in effect, so a ninth circuit judge, Judge Mark Margaret McCune has criticized the courts early open door to anti slap appeals saying that the court has quote turned a blind eye to the incongruence it and quote of reviewing on interlocutory appeal basis denials of slap motions. The court no judge McCune said that's been going on too long. We need to take up this issue. Yeah. Okay. Here's a now we're getting into into things of of immense importance to us appellate Attorneys. Concerning syntax typeface, and here, word count, don't manipulate citations in order to meet word count limitations. This, this, this came across in a recent LA County Bar Association appellate section listserv email via Steven Fleischmann, who reminds us to, to, to take care to observe the admonition in Sweigart versus Bruneau. Courts don't like blatant attempts to manipulate citations to the record or case citations just to meet the word count. So if you are, you know, eliminating spaces in case citations, just so that you can shave off a few words from your word count, be aware that the court may admonish you for that. Yeah,

Jeff Lewis  40:43 

if you're if you're kissing, if you're brushing right up against that word limit, maybe you should be looking at the substance of your arguments and narrowing the arguments as opposed to spaces and commas and citations. That

Tim Kowal  40:57 
 
is true. One other trick that actually has become the rule in in the ninth circuit is is when you cite to the record instead of using spaces in between the volume number and the abbreviation for appellants appendix in state court or in federal court excerpts of record so instead of one space, ie our space pin site or one space, a a for appellants appendix, space pin site, use hyphens instead of spaces. And that way instead of three words, that citation becomes one word. That sounds like manipulation to meet him. Well, then you can you can blame another one of our alums Ben Schatz, who is who originated that rule that's now used in the Ninth Circuit. Sorry, Ben. Okay, here's I'll contribute one more today. Jeff, this is on on my perennial hobbyhorse of the no citation rule, rule of court eight point 1115. The California Supreme Court recently violated its own rule eight point 1115 Not once, but twice. So this this tip comes from Dave Ed injure another alum of the podcast. So here's the first case. Camacho versus Superior Court concerning a right to a timely trial and an involuntary commitment proceeding under the sexually violent violent predators Act. The courts unanimous opinion cited a number of opinions showing examples of extended delays and 13 of those examples were unpublished opinions, 13 unpublished opinions 13 violations of eight point 1115 And one opinion and then another recent case people versus Moolman, addressing the kill zone theory of attempted murder. In that case, a two justice concurring opinion included an appendix of Killzone instruction decisions by the Court of Appeal filed after a four year old Supreme Court opinion the purpose of that illustration was to show examples of how the instruction results in reversible error and of the 70 cited opinions provided in that illustration. 58 of them were unpublished 58 violations of rule eight point 1115 which says that no citations to unpublished opinions for any reason. And David injure notes. The Supreme Court not the Judicial Council is in charge of drafting and amending rule eight point 1115. And the other rules regarding publication of appellate opinions and any suggests that it doesn't look good when the court is violating the letter of one of its own rules, and maybe 1115 should be changed to prevent Supreme Court justices and others from being scofflaws. The next time they cite unpublished opinions for non precedential reasons.

Jeff Lewis  43:37 
Okay, I think that wraps it up for today. Again, we want to thank casetext for sponsoring our podcast each week, we include links to the cases we discussed from case Tech's daily updated database of case law statutes, regulations, codes, and more. And listeners of our podcasts enjoy a special discount on casetext's basic research at casetext.com/calp. That's casetext.com/calp. And

Tim Kowal  43:59 
if you have any guest ideas, or if you would like to appear as a guest on the podcast, or if you just have other topics that you think that we ought to talk about on the podcast for the benefit of our listeners, please email us those suggestions at info at cow podcast.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  44:21 

See you next time.

Announcer  44:22 
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 Cal 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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"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"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

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

Leviticus

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

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

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

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