Anti-SLAPP motions are sometimes called early summary judgment motions. But the fact that they are “early” is why they are so powerful: not only do they provide defendants a quick way to defend against claims that involve speech, they force the plaintiff to prove its case without any discovery.
On this episode of the California Appellate Law Podcast, we discuss a recent 9th Circuit decision holding that denials of anti-SLAPP motions are immediately appealable as collateral orders. We also discuss:
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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
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.
Announcer 0:03
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
And I'm Tim Kowal. Both Jeff and I are certified appellate specialist and as uncertified podcast co hosts we try to bring our audience of trial attorneys and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast helpful, we'd greatly appreciate if you recommend it to a colleague.
Jeff Lewis 0:35
Right. And before we jump into our discussion this week, I want to thank casetext for sponsoring our podcast casetext is a legal technology company that's 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 2023. Casetext launched 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 our podcast enjoy a special discount on casetext basic research a casetext.com/calp That's case text.com/C A L P.
Tim Kowal 1:16
All right, Jeff. We have another installment of some cases and tidbits that we wanted to share with our audience today. So let's jump right into it. The first case we're going to talk about bears this lesson, pay your arbitration fees in 30 days, or else your arbitration is forfeit. And then if you already knew that lesson, here is the clarification. And the further further elaboration in doe versus Superior Court from September 2023. The excuse the check is in the mail will not cut it. Payment of the arbitration fees is when the payment is received, not when it is sent. So the employer defendant in doe versus Superior Court put the check in the mail on day 25. It has to be paid within 30 days. But it was not delivered until a week later. And that was two days after the deadline. The trial court thought hey, that's close enough. You put the put the check in the mail five days ahead of the deadline, but the Court of Appeal issued a writ of mandate, stating We strictly enforced the 30 day grace period in Code of Civil Procedure section 1281 point 98 and conclude that fees and costs owed for a pending arbitration proceeding must be received by the arbitrator within 30 days after the due date, we do not find that the proverbial check in check is in the mail constitutes payment. So this is Jeff, as we know this, you know, the untimely payment of arbitration is one of the rare escape hatches out of arbitration. And the reason for the strict rule, as the Court explains is to solve quote, a very specific problem, namely, the procedural limbo and delay that workers and consumers face when they submit to arbitration pursuant to mandatory arbitration agreement, but when the employer fails or refuses to pay their share of the arbitration fees, and the court goes on to explain that one of the legislature's main objectives, quote, was to deter employers from strategically withholding payment of arbitration fees so that they could no longer stymie the ability of employees to assert these legal rights. And so the court after examining other cases, on the point concluded that they were all in agreement that the legislature sought to establish a clear and unambiguous rule for determining a breach based on non payment as well as strict enforcement of that statute.
Jeff Lewis 3:36
Yeah, I gotta tell you, I was surprised I read this ruling. Oh, it's coming out of San Francisco, not down here in LA. Yeah, my experience dealing with both superior courts and the courts of appeals that they leaned towards deferring towards enforcing arbitration agreements. And Limbo we're talking about here is not an employer who just refuses to pay the fees. A couple of days, they were put the check in the mail. I don't know. I was kind of surprised by this result. Was this decision published?
Tim Kowal 4:02
This one? Let me just double check here. Yeah, I believe this one was published. And in fact, there was another case that we missed a couple of months ago, that was basically the same holding it was specific C ve J, I see your guess is as good as mine how to pronounce it. That was out of the Court of Appeal June 28 2023. And that was a published opinion. I will just double check by looking it up on case text. Yeah. Yeah. That was a published opinion. Justice widely out of the second district division eight is are
Jeff Lewis 4:34
there a lot of cases being held in limbo, Tim, by employers depositing a check in the mail on a Friday instead of wire transferring on a Friday? I just can't imagine by the numbers. There's a huge number of cases in limbo there. I don't
Tim Kowal 4:46
know. Well, in the in the limbo that we're talking about. In this case, we saw there was in limbo two days, the extra days that it took to be delivered in the mail, possibly, maybe another possibility for Limbo would be when there's a dispute. Get over, hey, I put the check in the mail. And then there's a, you know, how do you prove it was put in the mail, you have this proof of service. And then you look at the data was received, which is many, many weeks later. And then how do you account for, you know, that's a big mess you get into we get into that Jeff in, you know, Notice of Entry of Judgment, which triggered the deadline to file your notice of appeal, and those are effective upon delivery doesn't matter, when or even if you received it, if it was, if there's a proof of service, then the 60 day deadline to appeal starts ticking, and that's a jurisdictional timeframe. This this is also the court didn't use the word jurisdictional that I recall, but it is treated as a as a very strict rule that it that payment is only effective when it is received. But uh, yeah, I'm with you in harboring a little bit of puzzlement over this. I'm not sure if there's a huge problem to be solved here in this limbo period. Is it ever going to last more than two days or a few days like was the case in the DOE decision, but at least we have a nice clear rule that we can work with, we can work with clear rules, Jeff. Yeah. And
Jeff Lewis 6:03
look, no order compelling arbitration was ever avoided by paying fees too early. There's no rule that requires you to wait till day 29 or 30 to get out your checkbook and start out writing the check.
Tim Kowal 6:15
That's right. That's, that's another version of your rule that you can never lose an appeal by filing it too early, or by filing too many notices of appeal. That's an important one. Right? All right. Let's get to the next case. This is in a more in your bailiwick, Jeff. Anti slap denials are appealable as collateral orders. This is in the Ninth Circuit, as we know in in California state court, they're automatically appealable either way, but the Ninth Circuit, Congress has not passed an anti slap rule, anti slap statute like like California and many other states have. And but that does not pose too much of a problem for the ninth circuit so far, which has seen fit to apply state anti slap statutes. And so you can you can still file an anti slap motion in the Ninth Circuit. They're just they're just treated as treated under the procedural mechanisms of motions to dismiss and motions for summary judgment. But as you know, Jeff, we can't appeal from a denial of a motion for summary judgment or a motion to dismiss. So denial of an anti slap motion treated as some amalgam of those types of motions would not be appealable. Right? Well, that's that's where the the Ninth Circuit has come up with this theory that a denial of an anti slap motion that's filed in federal court is appealable as a final collateral order, a collateral order is appealable, when it's conclusive, when it resolves important questions, and when it is important questions that are separate from the merits, and when the order is effectively unreviewable. On appeal from a final judgment. So this is what the court reasoned in Martinez versus zoom info tech, Inc. It's out of the Ninth Circuit, September 21 2023, partially published decision. But I thought, Jeff, that it seems to me hard, hard to understand how an anti slap denial is conclusive because under Section 425 point 16 That section expressly states that no ultimate facts in the case shall be affected by the determination on the anti slap motion. And I further thought that it was hard to understand how anti slap denials are anything other than an on the merits, they're not separate from the merits, because the section again expressly requires the plaintiff to establish a probability that it will prevail on its ultimate theories, ultimate claims, but but that's the outcome of the Ninth Circuit is that antislip denials are appealable as collateral orders, Judge Bress has repeatedly issued dissents to that rule. He wasn't on this panel. But we've covered that before on the podcast, there was there was a judge brass dissent several months ago in salvus, in vs. Kessler, and I thought his criticisms are pretty are worth a response. And I'm always whenever I see this issue come up in the Ninth Circuit, I'm always looking to see if there's a response to judge presses criticisms, and I haven't seen it yet.
Jeff Lewis 9:11
Yeah, yeah, you know, I'm all for expensive application of the slap law. And I'm all for not rewarding certain plants for filing in federal court to avoid application of the anti slap law. And I've always thought that under the Erie doctrine that a state slap law is substantive. It's what gives the First Amendment its teeth. The rights and obligations of a plaintiff or defendant in a slap state are very different than one in a non slap state when it comes to proving up your case and your ability to even make a case. And so I've always thought under the Erie doctrine, that the other circuits have it wrong, that the slap law should be considered substantive and there shouldn't be any discussion regarding about its appeal ability then you wouldn't have to go through the axle twisting logic of this collateral order nonsense.
Tim Kowal 10:04
Yeah. Yeah, I do. I do think that probably one of the arguments, one of the rejoinders that may be made to to judge breasts as criticisms of the rule that anti slap denials are appealable as collateral orders is that? Well, it is it is. It does involve different rights. I think that's kind of what you were touching on. They're more maybe different. But they are substantive. It's similar to the way that qualified immunity in you know, in police misconduct cases is a different substantive right. And that's why a denial of a summary judgment and denial of a defendants summary judgment motion on qualified immunity grounds is usually treated as appealable as a collateral order, because qualified immunity is a substantive right, that gives a defendant a right not only a defense, but a right to avoid the expense in the incursion of a lawsuit in the first place. So it is more it's not just a procedural mechanism. It's a substantive right. Yeah,
Jeff Lewis 11:02
yeah. Well, look, Congress could fix this mess in a second by passing a federal anti slap law. It's long overdue.
Tim Kowal 11:09
Let me ask one other question to the to the anti slap grew hear if in a case where there's an anti slap motion that could have been brought, but that wasn't timely brought? Does that defendants still have all the same substantive rights, free speech rights at trial? Or along the lines of what you said? Because the anti slap statute provides some additional substantive rights? Is that substantive, you know, beyond just the ability to avoid the delay expense and frustration of of litigation? Or is there an additional actual free speech? Right, that would be lost? If you don't bring that and bring it in an anti slap motion?
Jeff Lewis 11:47
Yeah, it's yeah, it's interesting question. So if you filed within 60 days, you have the right to file an anti slap motion without leave of court, you file after 60 days from being served, you got to ask permission to file an anti slap. So I guess technically, on the night before trial, in the middle of trial, you could file an anti slap motion with permission from the court, you know, on its face, the anti slap statute doesn't confer additional free speech rights doesn't protect more activities than otherwise protected in non anti slap states. But the combination of the protection from discovery, and the fee shifting and the right of immediate appeal and avoiding a five year wait to get to trial. I think all of those combined together provide substantive benefits that can't be described as mere procedure.
Tim Kowal 12:32
Yeah, well, and the another benefit is that at the beginning of the case, imposing upon the plaintiff, that burden of proving minimal merit before that plaintiff has had any ability to take any discovery. And so if that if that if you think that's going to change over the case, and well, you know, if I let the plaintiff get some discovery, they'll find that there's something there. But at this early stage, I know he's got nothing so I can stick him with that level. It's kind of an epistemological disconnect there at the beginning of the case, you have the plaintiff at at His weakest moment early in the case before discovery.
Jeff Lewis 13:05
Well, yeah, if you're the kind of plaintiff's lawyer that you know, shoots first name second, you do not want to run a file of a slap law, because you're gonna be put to that burden without the benefit of discovery to backup your theories.
Tim Kowal 13:17
Yep. All right. Yeah. Thanks. And thanks to Attorney Ray Mandel car for for the tip to the to the Martinez vs. Zoom info case. Okay, next case, this we're going to talk briefly about in re marriage of Jensen, Jeff, I thought this one was interesting, because we just it deals with this distinction between void and voidable orders and judgments. So what happened in this case as a sanctions award that that over time amounted to $8.7 million? The trial court decided, well, we're I didn't really give the party due process. So I'm going to set it aside. I think it was void, but the court appeal said, No, it wasn't void. It was voidable, but not void. So you have to reinstate it. So here's basically what happened. In this case, following their divorce. David and Lynette Jensen, continued litigating for some 14 years. This is a very protracted litigation, they litigated for 14 years over assets surrounding David's medical practice. That's longer
Jeff Lewis 14:15
than some marriages longer than my first marriage. Good. Yeah.
Tim Kowal 14:20
It's a long tail on that marriage. They were they there was obviously there were there were assets. There was value in the community properties, especially concerning David's medical practice. And the key event in this litigation occurred or at least in this case involving the sanctions occurred in 2014. When the trial court without notice, or hearing, or giving any kind of due process to David. The court imposed two daily sanctions awards against David first was $1,000 daily sanction against David for failing to failing to pay some retainer to administer a quadro account and then another $1,000 daily sanction until David paid for a court of appointed expert to determine cash flow out of the business and you know $1,000 Not much but over date every day for what are we at nine years now the court and then the court even later imposed yet another a third daily $1,000 sanction until David performed some rollover into Lynette's AmeriTrade account. David promptly petitioned the court of appeal for a writ of mandate, but that was summarily denied. But then he did nothing, didn't didn't do anything else concerning the sanctions. He raised no challenges to the sanction orders, at least not judging from the opinion which didn't mention any such efforts. And David didn't comply with him either. And not that is until late 2021, some seven years after the orders were first issued, David filed a motion to vacate where he challenged the orders as void, they would argue their void because no due process, thought it was, you know, the trial court thought it was a pretty good argument. And so set aside the orders, including the all the amounts that had accrued on them $8.7 million, according to a footnote in the opinion Linnet appealed from that on the grounds that a it wasn't void, it was merely voidable and David didn't didn't move to set it aside is voidable within the six month period under under the statute 473. The Code of Civil Procedure 473 allows the moving party to set aside avoidable judgment, if it's within six months of entry of that judgment. But if it's if it's a void judgment, then you can move at any time there is no deadline on it. But as you can guess there is a big difference between what's avoidable judgment what's a void judgment, a mere procedural irregularities, only amount to a mere excess of jurisdiction. But the difference is hard to articulate. And I think the courts have found it hard to articulate it's it's void and order is void if the court has a fundamental lack of jurisdiction. So if there's no subject matter jurisdiction over the over the issue, if it was really a federal question is brought in the wrong court, that sort of thing. But if the court had jurisdiction to do the thing just didn't follow the right procedures to get there. That's a mere voidable order. So you have to bring it within that six month period. That's what this whole case turned on. Void or voidable. That's whether there there was or wasn't a deadline to file this order, filed this motion to vacate. And the takeaway really is that most procedural errors are not jurisdictional, most most errors are not going to be jurisdictional don't count on your judgment or order being void. You have to seek to set it aside or vacate it within six months. But here's one thing that I thought was interesting, Jeff, that while a term of terminating a pleading without notice, is one of the examples the Court cited as not being a void order, that's merely a avoidable order, but awarding damages in excess of the demand is void. So you can imagine what in the case where you have pleaded in your in your complaint, that we're seeking damages in an amount greater the than the jurisdictional minimum in an amount to be proved at trial, and then the defendant doesn't answer and you get your you do your default prove up and you and you ask you prove $10 million? Sorry, you don't get that because you didn't plead that amount. That is a void judgment. But that seems that seems a little strange here because this, you know, there was similarly No, no, no statement of what the what the amount was in any kind of pleading or notice to David, what the sanctions were going to be and yet that's merely voidable and not void.
Jeff Lewis 18:27
Yeah, that it's very odd distinction, and we just give a shout out to appellant's counsel in this case. Melinda Manley. I patters opposing counsel in a matter she's a fantastic lawyer grats. To her for this great a great result in this reversal.
Tim Kowal 18:41
Yeah, yeah, that's a that's a big deal. Getting $8.7 million that went poof in the trial court, and then got reinstated on an appeal. That is that is a big win. That's that was that was a happy phone call to the client. Bet I bet. Okay. The final case, Jeff, that I wanted to talk about today. This was a short one. What does it mean, when the appellate court orders counsel to discuss certain authorities at oral argument? This is the question that came up in the United States versus SEPA Lassen it's out of the ninth circuit. So basically, what happens is a lot of practitioners know who've done any kind of taking any cases on appeal. Sometimes in the weeks prior to an appellate oral argument, the court will issue a letter ordering the parties to be prepared to discuss certain issues or cases that the court thinks are important to that case. Sometimes it's called a focus letter or a pre argument order. And in the Ninth Circuit, they're pretty common, but in this case, United States versus Appalachian, there was a dissent to a pre argument order. And this was a wrongful search case. Out of the state of Alaska. The Ninth Circuit ordered the parties to be prepared this new bid for Alaska cases quote, as they pertain to appellants argument that under Alaskan law stationhouse inventory sir Shares are only permissible if the suspect is in the process of being incarcerated, close quote was pretty standard, the court identified an issue that was important to deciding the issues in the case. But Judge Collins dissented. He said that, in my view, pre argument orders raising authorities not cited by the parties should only be discussed when those overlooked authorities are recent, obviously controlling or involve a jurisdictional issue and quote, and the most recent case, the majority asked counsel to bone up on dates back to 1990. And they don't seem to be jurisdictional or obviously controlling. So judge Collins thought this is not appropriate subject for a pre argument order. I'm all for removing the
Jeff Lewis 20:39
gotcha element out of litigation and appeals. And so I'm on Team Hopkins on this one. There's no reason if a court of appeal is about to issue an opinion, based on a specific case not to give counsel a heads up.
Tim Kowal 20:53
Yeah, as you mentioned, Judge Hawkins wrote a concurrence responding to judge Collins dissent, Judge Hawkins said that look, panels issue these orders to alert counsel to authority that they might have overlooked as a courtesy to counsel and it's to avoid disruption in the flow of argument during oral argument. And it's also the purpose is to reduce the need for post arguments supplemental briefing, basically, what is your problem, judge, Judge Collins, who hurt you? Frankly, I don't quite understand the downside to these pre argument orders. Yeah, neither well, so whatever the reason, if you are preparing for oral argument, don't ignore a focus letter or pre argument order. I don't know why you would. I don't know what the upside would be. Maybe coming. Do you think you're going to come to oral arguments? So yes, your honors, I saw that you asked me to prepare these cases, but you don't have the authority to require me to talk about these cases? Yeah. Yeah. Okay, that's it for my cases. Jeff, you had one, I think about this about another slap case.
Jeff Lewis 21:55
Yeah, just a short discussion. Levy, Jenkins, Li, the Jenkins. It's a case involving production of a Netflix show a show I'm not cool enough to watch a bling empire. I don't know what it's about. But apparently it's popular. It's on Netflix. But it's a slap case. And it deals this case deals with the catch all provision, anti slap activity. So typically, to invoke an anti slap motion, you got to prove that activity underlying the complaint involves statements made in an official proceeding, or statements made in connection with an official proceeding, or statements made in an online forum in connection with an issue of public interest. If you don't fall within those first three categories. There's a fourth kind of catch all category of any other conduct protected by the First Amendment. And this is a catch all case discussion about if you are bringing an anti slap motion. And there is activity that is clearly covered by the First Amendment. It's expressive, it's creative. It's protected by the First Amendment such as news gathering, putting on news or putting on a show, it's not enough to show that the First Amendment is implicated by the activity, you got to show that the conduct underlying the complaint is contributes to the public debate or discussion about that public issue. So it's not enough just to say, Aha, there's creative activity, or the First Amendment might be implicated here, you got to show that this defendant was sued for activities that not only discuss a public issue, but implicates or contributes to a debate or public discussion. So if you are litigating a catch all aspect of the anti slap law in the vein of the film on case, this, this case gives a pretty good solid discussion of the requirement of showing that nexus.
Tim Kowal 23:42
But what are the broad strokes of of those requirements? Because that seems to be that catch all litigation seems to give the the widest possible discretion to the court to decide, well, this seems interesting to me. I think it should be part of the public discussion.
Jeff Lewis 23:56
Well, I can film on if I recall correctly, the issue was private database or private group of communications about a very important issue. But the communications wasn't shown to contribute to a wider broad public discussion or public debate about that important public issue and so
Tim Kowal 24:15
on to the public issue was just context to a private dispute.
Jeff Lewis 24:19
Exactly. Exactly. Because anybody in any case could say that certain conduct as a public interest element, I mean, just about any lawsuit could be refocused or respond to say it's involves a public interest issue. But you got to say that the very specific conduct that defense are accused are of doing involve both protected activity and these communications had a connection to a public debate or discussion that furthered the public's interest in this issue.
Tim Kowal 24:52
Got it? Yeah. So if you're just talking about you know who gets points on this Netflix series, even though the Netflix series might be part of a public list discussion. You know, your rights to getting points on the back end is not is just the mere mere private dispute.
Jeff Lewis 25:05
Many litigants try to cram private disputes into an anti slap motion with the hope of getting fee shifting and putting the brakes on Discovery and all that. And that would be a smack a strategic motion against credible claims. When you cannot in the in the context of a catch all a show that nexus
Tim Kowal 25:24
while on that subject will go right into to a tidbit that deals with the slap issue. And that is I just added here, and it scrolled away from me. There was a recent case, Jeff, where there was a city official, who who sued for retaliation against the city, including based on his two city council members votes against her and public comments that well, this person didn't understand the rules. That's why we had to demote her that in the court ruled that that those are that was protected activity. And so the claims were subjected to the anti slap, and that the labor code provision didn't define didn't include in the definition of an employer, public officials or city council members. So those even though it was an employment, a Labor Code claim, it didn't survive, because those city council members were not employers under the labor Labor Code statute. Interesting. I thought it was interesting that that in this case, you had the city, you know that the idea of the anti slap statute, it's supposed to be supposed to prevent the powerful squashing the interests or the rights of the of the powerless to file legal actions. But here you have the city, using it to squash the the labor code claims of a of an employee of the city employee.
Jeff Lewis 26:38
Yeah, look that that tension is similar to the tension that comes up whenever a media company, you know, big news, like CNN or KBC, when a media company is sued for news reporting, and there you have big media company suing usually a little guy, or anti slapping a little guy. And the law was really meant to protect people who don't have means not big corporation and news media defendants. Yeah, yeah.
Tim Kowal 27:06
And that that case, I was just talking about Jeff was Brown versus City of Inglewood.
Jeff Lewis 27:10
Got it? Yeah. Yeah. All right. Let's start out. Let's cover some tidbits. I noted one this morning. I think it's all the news by news this morning, when I went to law school, and there was a little murder case by the name of people Versus OJ Simpson. That was in the news. When I was in law school. And I just read this past week that Christopher Darden, one of the OJ prosecutors, has pulled papers to file to run for LA Superior Court Judge. I thought that was interesting. Christopher Darden might be coming to a courtroom near you.
Tim Kowal 27:39
Okay. Yeah, we were just talking about that. I'm a young and I knew the name Marcia Clark, but I couldn't remember Christopher dardennes. Role. Yeah, yeah. You want to get the big, big, big, big news about a filing fees? Yeah, break the good news for our listeners. Okay.
Jeff Lewis 27:53
I can't tell you how many times I filed a notice of appeal. And I got a default notice saying you didn't pay the $775 fee to the Court of Appeal. And then my paralegal comes to my office and explains to Well, Jeff, there is no real easy way to pay that fee unless you like walk into the office. It's a real headache. effective September 23. Three days ago, the LA spirit court is now going to start accepting online e payments for that $775 Court of Appeal filing fee and will save lawyers like me, lots of anxiety and stress from getting a Notice of Default from the Court of Appeal.
Tim Kowal 28:29
It does occasion a lot of anxiety, especially when, when the client or your co counsel asked you, aren't you certified as an appellate specialist? Are you getting notices of default from the Court of Appeal? Well, they don't make it easy for you to
Jeff Lewis 28:42
pay out. But they don't. But now they
Tim Kowal 28:45
do. I do note
Jeff Lewis 28:46
that the rules will allow someone still to pay in person if you're one of those dudes that wants to walk into the courthouse with a with a checkbook and write your fee in person. You could still do that.
Tim Kowal 28:57
I've heard tell that those people still exist. I just don't know where they are. Yeah. Okay. Here is a practice point. I think we we talked earlier about the big appellate procedure case out of the US Supreme Court in Dupree versus younger, that was a case that held that that you did not have to raise purely legal issues that had been resolved in a summary judgment in a post trial motion under Rule 50 A and B in order to preserve them for appellate review kind of wonky but important in federal if you're in federal litigation and preparing to go to appeal. Blaine Evanson and Jeremy Christiansen have penned an article in law 360s, suggesting that the Dupree rule should also extend to the rule 12 motion to dismiss context. They say they conclude that new pre and it's rule should mean that a purely legal argument that's raised and rejected on the pleadings should not have to be reraised throughout the case simply to preserve your appellate rights. They do note that the precise line between what is pure legal and what's a mixed question of law in fact, is not crystal clear. So counsel should carefully err on the side of asserting the argument before during and after trial. So it is properly preserved for appeal. Okay. Yeah. Next, another tidbit here. I think we discussed, we discussed the Eisenberg rule already. I didn't take that off of my list. Oh, here, I wanted to mention this. This. This was an interesting dissent. From review out of the supreme the California Supreme Court, the court denied review in Kurt Meyer versus Helios psychiatry. But Justice Joshua Groban recorded a vote to that he would have granted review. The the opinion involved in that request was out of the first district that upheld a subpoena for private medical information by the medical board. So what had happened apparently a family member had filed a complaint with the medical board, asking them to investigate the Doctor of whose whose patient was was a family member. So the psychiatrists medical records got got subpoenaed by the Medical Board and the the Court of Appeal said that's a okay and the Supreme Court did not grant review. And so I thought this was a there's a topic sometimes I keep an eye out for Jeff, I'm just interested to see how the more scrutiny we paid to to public health, I get worried that it's going to wind up impinging on private health and privacy in our health care, the more we get concerned with public health and wanting the medical board to to take broader discretion and jurisdiction over the practice of medicine. Just going to mean that, you know, watch out your your relationship with your doctor may not be sacrosanct. Yeah, may not be as private as you think. Okay, here's another case with just a just an interesting problems. This is Bernard versus Sacramento County Sheriff's Department. In this case, this was reported by by Professor Shawn Martin. And basically the facts of the case is someone reported to the police at the Colonel's son might shoot up a school, obviously terrifying. But when the police showed up in force at the Bernards house, they didn't want to talk to the police didn't want to the son was at the grandmother's house and they didn't want to didn't want to send the cops over to the grandmother's house. The frustrated police wound up pulling their guns, handcuffing Mr. Selma, and detaining them preventing them from leaving until they talked and the Ninth Circuit said, That's okay. Professor Sean Martin's comment is I recognize that it's a potential shuls school shooting and that's always serious, but rights our most precious and most at risk in precisely such settings. If there's anything we should have learned from our whole torture memo and waterboarding experiences, it's that. Yeah, yeah, it's good point. Okay. on the lighter side, I noted this, Jeff, that about cut and paste briefing, this came out of Ben Schatz forwarded this along, and cut and paste briefing is poor practice, but a Ninth Circuit opinion said that we're going to it's not against the rules. The court said we reject the city's argument that we should dismiss the appeal as defective, because just because plaintiffs copy and pasted second sections of their district court briefs, the court went on to say, although plaintiffs repeat verbatim some of the arguments they made to the district court, those arguments are relevant to our court as well. And neither the Federal Rules of appellate procedure nor any other binding legal authorities require that we dismiss the appeal. So not never the best practice is to merely copy and paste but it doesn't violate any rules, Jeff? Yeah,
Jeff Lewis 33:32
yeah. I'm surprised that the city trying to seek a dismissal based on that, but
Tim Kowal 33:36
okay. It seemed it seemed a little harsh. Yeah. All right, I
Jeff Lewis 33:40
think. Does that wrap it up? Yeah, I
Tim Kowal 33:42
think we can end it there.
Jeff Lewis 33:43
All right. Again, we want to thank casetext for sponsoring our podcast each week. We include links to the cases we discussed from casetext's daily updated database of case law statutes, regulations, codes, and more listeners of our podcast enjoy a special discount on casetext basic research at casetext.com/calp That's casetext.com/C A L P.
Tim Kowal 34:01
If you have suggestions for us for topics we should cover or guess we should invite on the podcast please email us at info at Cal podcast.com. And in our upcoming episodes, look for more cases and tips for how to lay the great groundwork for an appeal when preparing for trial.
Jeff Lewis 34:18
See you next time.
Announcer 34:19
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 Cao 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
