Tim announces his new firm, Kowal Law Group, APC, and discusses some legal tech with Jeff before moving on to recent cases, including:
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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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 specialists and as uncertified podcast co hosts we try to bring our audience trial and appellate attorneys and legal news and perspectives they can use in their practice. If you find this podcast helpful, please recommend it to a colleague.
Jeff Lewis 0:33
And before we jump into this week's discussion, we want to thank casetext for sponsoring our podcast. Casetext is a legal technology company that has developed AI back 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. And in March 2023 casetext lots launched co counsel, the world's first AI legal assistant to 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 at casetext.com/calp. That's casetext.com/C A L P. Yeah.
Tim Kowal 1:16
And you know, co counsel on case techs have been indispensable to my practice. Jeff, last episode, I think I made a minor announcement. I'll go ahead and make the major announcement today.
Jeff Lewis 1:25
You teased our audience, you gave the audience a teaser, just a teaser. But
Tim Kowal 1:29
now yeah, now the full fledged announcement that I am now out under my own shingle co wall Law Group. APC is my new as my new firm pleased to support trial attorneys and and clients directly in complex litigation and appellate matters.
Jeff Lewis 1:45
That's fantastic. That's great. So tell me, Tim, in forming your own firm, what is like the top three or four legal technologies or productivity tools that you found are most helpful in starting up your firm?
Tim Kowal 1:57
Yeah, you know, I drew on the on the conversation that you and I had with Ernie Svenson. Earlier this year, I guess it was or is it late last year, where we talked about some of the gateway drugs to legal tech, and how it can really make your practice a lot more efficient. And, you know, some of the tools are, you know, I think every every attorney really needs to have their calendaring and their email, you know, really, really honed efficiently. You're spending a lot of time on email backlog and managing your own calendar, you're doing things wrong, you need to need to have good tools for that. And really, ideally to be delegating, who is managing your calendar and a lot of the flotsam and jetsam emails that come in, obviously, you know, key client emails or appointing opposing counsel emails, you have to touch those but there's a there's, you know, probably 80% of what hits the inbox and stuff that is lower priority that needs to be processed more in the background. But you know, Jeff, I've told you that I had been on this law for management software that that was cutting edge circa 1998. It was called Pro law. And so I've just been finding tons of efficiencies using CLIA which I know a lot of people are already using. But I've been developing my templates and things that I've got, I can, you know, create a, an appellate court motion template and appellate court briefing template, and it's auto populates. And I don't have to go back and cannibalize old drafts, or old old briefs and old motions in order to create a new one. And then I have to change the artifacts, you know, where I've got old, old parties listed that I forgot to update and things like that. So my, I'm excited to have my, my pleading and briefing templates a lot more a lot cleaner than they used to be.
Jeff Lewis 3:33
Yeah, great. That's great. And let me ask, are you I know, at your old firm, you would started using notion to help you organize your work and to organize your marketing, are you continuing to use notion at the new firm?
Tim Kowal 3:46
Yeah, I continue to use notion to generate my content. Now I've, I've been a little bit slack on my content the past month, because I've been busy with getting my firm off the ground. So I haven't been developing as much of my content as I used to, but I still am going to use notion for that. But Clio does a lot of my my firm intake, you know, my client intake process, it has that all built in it has kind of taken what notion can do and integrate it into itself. So Clio has taken a lot of the database functionality, that notion has to be able to track where all of your cases are, what phase of the case they're in, that's a brand new functionality within Clio. So you can track you know, this appeal is in the record preparation phase or the post trial phase or it's in the briefing phase or in the you know, preparing you know, waiting for oral argument phase so you can kind of track where your cases are at a glance Great. Okay. Yeah, and one thing, Jeff, just to this will probably knock your socks off, but I have I have transitioned from Leslye and now I Lexus user. So the big sticking point, as we all know is the rudder guide. The rudder guide is only available on Westlaw, but there are certain things in Lexus that I've just been blown away by like it's what do they call it the it's case link feature? It's kind of like a pacer plus where you can you You can just type in the case number for any any case anywhere. And it instantly shows you the docket and you can get instant access to all of the filings in any case, which makes it indispensable if you're talking to a potential client, and they want to know is this order appealable will show me the order? Or is there has there been a file stamped copy, you know, entered by the by the clerk, you can just go on to the docket and download it right then in there on the phone with the client. So it's, it's really an indispensable tool.
Jeff Lewis 5:26
Wow. So I know you're a big believer of CO counsel, and case text, and you've got Lexus for public filings. Now for the broader group. Do you have like an old school book behind your desk? Or what are you doing for the rudder group civil appeals? Treat us?
Tim Kowal 5:40
Well, I don't know if I should, if I should say publicly, but I had downloaded a PDF that I had just died. Just you know, I know that that's, I'm still on my legacy account. So I'm not technically in violation yet. But I'm going to have to I probably will have to just buy a one off copy of it. You know, and just hope that I'll check in with you, Jeff. If I ever have an issue that I need to know if there's been any updates to the Render guide since my last my last version some months ago.
Jeff Lewis 6:08
That'd be me concrete Tiktok video for you to take the pages that you got to like pull in and pull out and you know, the updates that come out every few weeks?
Tim Kowal 6:15
Yeah. Yeah. Living in the 21st century, except Except for my my heart bound rhetoric, dread. Yeah.
Jeff Lewis 6:20
Well, before we leave this, this topic of legal tech, let me just say, my top three legal tools I find indispensable is Calendly. For automatic scheduling, if anybody wants to schedule a meeting with me, I send up a link, it eliminates the Hey, are you free? Friday at three? No. How about Tuesday at seven? No, it's those kind of conversations are awful. So that's number one. Number two is Text Expander. Span tax. Fantastic.
Tim Kowal 6:44
I've been making more and more use of text expander. As as I use it more.
Jeff Lewis 6:48
And then the third is probably not applicable to you yet. But we are heavy users of slack in my firm, you know, I've got six team members. And we have a Slack channel for every case. And we don't use email anymore for internal communications about a case. And it's very helpful to kind of put a wall between internal and external communications and sharing files in real time, I tend to look at Slack email, I look at the end of the day. So those are my top three tools.
Tim Kowal 7:13
Yeah, I haven't made the switch on the slack, you and I will we'll use Slack every now and then. But I I haven't been able to get the buy into it. And now being solo. It's just just myself and my my paralegal slash administrative assistant. And we are at we're in the same room at the moment. So there's not a heavy need for it. Yeah, well, Jeff, we want to talk about just a few recent cases and some legal news that that has come down. So let's get right to it. The first case we're gonna talk about involves the collateral order doctrine. Now in California, like like in federal, there is a collateral order doctrine exception to the rule of appealability. Now, the rule of appealability Is that an order is not appealable unless there's a statute saying so but there is a judge made or a court made doctrine called the collateral order doctrine, that is an exception to that rule. So if if an order is final, and if it's collateral to the to the main issues in the case, and in California has this this third special element to be appealable as a collateral order and has to order the payment of money or the performance of some action, and there has been a split of authority among the California District Courts of Appeal for a while, but it seems like the that split is coming down pretty solidly in favor of keeping that that California specific third requirement of the order to pay pay money or to perform an act. The recent case, it's an unpublished case, that's on point is longer Bardot versus AGCO Corp is out of the fourth district Third Division. The plaintiff in this case is a pilot who is injured by an allegedly defective manufactured airplane, and the defendant manufacturer moved for summary judgment under the general aviation Revitalization Act 49 USC 40101. And it's a little bit analogous to qualified immunity and anti slap remedies in the sense that it provides a a defense from suit. So the defendant moved for summary judgment on basically a repose ground. That had been some 18 years, I believe, since the alleged injury occurred, but the trial court denied the summary judgment. And the defendant said, Well, I'm supposed to be immune from suit under this Act. So I'm gonna go ahead and appeal from that order denying my summary judgment motion because I shouldn't have to go through trial. My right under this statute is that I am entitled to avoid trial. Now, on the other hand, denials from summary judgment are not appealable in California, but denials of anti slap motions and qualified immunity defenses are generally immediately appealable. So that's that's the basic rationale that the defendant employed and took a shot under the collateral order doctrine, but the court of appeals said no dice true, the ninth circuit would have found it appealable and so with some other jurisdictions, but California is doctrine is pretty fussy about that third LM and that the order not only has to be final and collateral, but it also has to command the payment of money or performance of an act. And the order here denying summary judgment did not order the payment of money or performance of an act. The court voice is a concern that, Jeff, that you and I have talked about several times on this podcast, and that is that, that when whenever there's any surprising rule about you know, finding an order appealable that's ordinarily not appealable that can lead to dismaying results because, as you know, if you can appeal it, you must appeal it or else forever waive your right to appeal. And so here's how justice Delaney put that problem. He said, We fear that extending the collateral order doctrine to apply to an imprecisely defined class of orders denying summary judgment motions could lead to confusion, deeming an interlocutory order immediately. appealable is a double edged sword. On the one hand, the aggrieved party gains the right to immediate appellate review on the other. If that right is not timely exercise, the order becomes unreviewable. On appeal from the final judgment, we anticipate that were we to hold this order appealable. It might come as a shock to lawyers and litigants in other gara cases whose appellate rights we thereby effectively extinguished and a matter of grave concern to lawyers and litigants in cases involving similar statutes of limitation or repose. So again, defendant can try the statutory writ petition for denial of a summary judgment motion, but otherwise, the denial of a summary judgment is not appealable, including under the collateral order doctrine.
Jeff Lewis 11:36
Yeah, first of all, excellent use of the word repos. Second, the whole panel in here should have recused themselves because had they gone the other way, found MSJ orders immediately appealable. You know, the docket would have been swamped with additional filings, people looking to get an early disposition on appeal of an MSJ. So I tend to agree with this, I'm not sure why I don't think it's really a true split in authority as represented by the second district molar versus Fresno case, or perhaps the losing party here, we'll take this up on a petition for view to resolve the split
Tim Kowal 12:10
molar case. Yeah, that molar case has been kicking around for a while. And, you know, I recall when I was studying for the appellate certification exam, reading the rudder guide that referenced the split of authority concerning collateral orders. And that may be sometimes you can make that argument as the defendant made here that it could be collateral, that third element requiring the payment of money or performance of some act, you know, that could be argued as that's just kind of confirmatory, that it's final and collateral and not really a separate element. But I don't think the weight of all of the cases in the last at least 10 years or so 15 years have been firmly on the side of requiring that third element as a separate and distinct, independent element. Okay, next case that I wanted to talk about Jeff is, involves a mid trial repetition. Now this Gambit is often hard to justify it's again, one of those, sometimes you feel like you have to use it or lose it. If there's something that comes up during a trial, that's going to greatly impact your ability to put on your case, you can't just hold it in your back pocket and then argue about it later. You have to raise it, you have to raise it. Now that's what happened in the sexual abuse case in doe versus Superior Court. The plaintiff there sued a school district for for having been sexually assaulted. And while the district did admit to negligence, the district argued that some of plaintiff's damages resulted not from the assault by the teacher, but from some sexual assault some years later from an independent abuser. And the parties then argued about whether evidence of the subsequent sexual assault was admissible. And after the parties had given their opening statement at trial, the plaintiff filed a right it might have been the district filed a writ petition writ petition was filed, the trial got stayed right after opening arguments, opening statements were made. And ultimately it goes all the way up to the California Supreme Court, which held not very clear ruling on on the admissibility of the evidence that the evidence might or might not be admissible. The court just has to consider carefully our explanation of the subtle Interplay before between evidence code sections 1106 783 and 352. And if you have problems, try us again later. One procedurally interesting thing about all this, as I alluded to a minute ago that all the RIP proceedings transpired after the jury was impaneled. And while the trial was temporarily stayed to two whole years ago, and what struck me about this was we mentioned at the top that it's not typical that you find these repetitions happening right in the middle of a trial and staying the trial proceedings. Usually the court court of appeal at that point will just say, let's see how the trial shakes out and then we'll take it all up at once in a direct appeal. I gather that what happened here is A Court of Appeal probably thought, well, these are very sensitive issues about you know, sexual abuse, and we don't want to have to make the plaintiff go through all of testimony and the ordeal of trial. More than once. So let's figure out the evidentiary issues. So it can just be tried once, get it done once and right. And so we don't have to do it again. And yet it comes comes down with this very, very subtle and not very clear holding about whether and what evidence is going to come in. So maybe the trial winds up happening, and there still is going to be some error in the admission or exclusion of evidence that requires another requires a retrial. What do you think about this, Jeff?
Jeff Lewis 15:26
Yeah, this was a really interesting, procedurally interesting case, bouncing between the Court of Appeal and Supreme Court in the middle of trial and giving the trial court the option to continue to use the jury as impaneled, which struck me as I review a lot of writ petitions filed by trial counsel, and oftentimes, they're screaming fire, they're screaming, there's an emergency where there really isn't. This really represents important time sensitive issues. And I just don't understand why the court didn't act more quickly. But I totally understand why the court of appeals Supreme Court agreed to hear the case.
Tim Kowal 16:01
What chance do you think there is that the that the parties get the same jury?
Jeff Lewis 16:06
Well, the final sentence of the opinion says, we are informed if the jury is still in pandal? It's so if so, use that one. And if not, proceed accordingly.
Tim Kowal 16:16
Yeah, I have a hard time imagining they can get the same the same jury and they haven't looked up anything about the case in the in the last two years. Right. But I guess that's, that one will probably come back around again, we'll keep our eye out for that one. All right. Next case, Jeff is in your wheelhouse. We're going to be talking about an anti slap case. So the lesson here in Park versus Nizari, is that filing. If you're filing an anti slap to strike specific allegations like a true motion to strike, rather than entire causes of action or the entire complaint, you need to be careful because the court here in Park vs. nozari refused to parse the anti slap challenge because the defendant did not parse the challenge in the notice of motion itself. And this may be a break from prior authority and specifically, California Supreme Court authority, as we'll see in a minute here. So here's what what happened in this case, the anti slap motion arises in the context of collections action basically looks like what happened is that defendants owed plaintiffs about a million dollars from a prior action involving a dispute over the sale of a truckstop. During the prior case after the jury's verdict. But before the Judgment had been entered, defendants attorney recorded about $125,000 in liens against property owned by the defendants, and in this case, the attorneys, the defendant seek to invalidate the liens by the attorneys. And it also involves some other somewhat confusing claims about a sham foreclosure and defendants interference with efforts to address soil contamination from the truckstop. So ultimately, defendants filed an anti slap motion, they argued that the attorney liens were how they funded the prior litigation. And so they were protected litigation connected activity under the anti slap statute for 25 point 16 e two, and because the liens were the gravamen of the whole action, the defendants argued that the whole complaint should be stricken. But when the trial court pointed out that parts of the case like those environmental allegations and the foreclosure, they had nothing to do with the lien. So how could those be protected activity? So the defendants argued, well, okay, well, maybe those aren't protected, but the court should just strike the parts that are protected activity. And the court said, Nah, you didn't parse it out in your notice of the motion. So I'm not going to do your work for you and go and surgically strike certain certain allegations of protected activity and leave the rest. And the defendants take up this order denying their anti slap motion say, what's the deal, the Supreme Court says that I can file I can seek this is you know, the the anti slap motion is special is a special motion to strike but it's a motion to strike, I can strike specific allegations. But the Court of Appeal gives no year and affirms the denial of the anti slap motion and holds if a defendant wants the trial court to take a surgical approach whether the in the alternative or not, the defendant must propose where to make the incisions. And this is done by identifying in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim and explaining the claims elements, the actions alleged to establish those elements and why those actions are protected, and goes to talk about the bony case, which which stood wheel stands for the proposition that the court can surgically strike certain allegations even if not a mounting the to the entire cause of action. But as as Attorney Michael Shipley, pointed out here about this case, the essential rule seems to be that if a moving party files an anti slap motion against a whole cause of action, the trial court can deny it without doing any of the bravi Schnitt or Barney style claim by claim parsing. But that's that's a little A bit of a stretch seems like a deviation from brawl and Barney, Barney because in bonding itself, the defendant moved to strike a whole cause of action for retaliation, and the Supreme Court nonetheless picked apart the various retaliation acts claim by claim. Even though the defendant hadn't surgically sought to do a claim by claim the court went ahead and did it for the defendant. But nonetheless, you have to follow rule of court three point 1322 A, which specifically requires that a notice of motion for a traditional motion to strike recite each precise item of complaint text to which the motion is directed. So you may be able to still argue you should certainly still argue overall and Vani. But in the two, in an abundant abundance of caution, taking the advice from Park, VC versus nozari, make sure you are also in addition to trying to strike the entire cause of action. Let's recite specifically which lines in the complaint contain protected activity that you want to be stricken under the anti slap statute.
Jeff Lewis 21:07
Yeah, yeah, as best practice is always best in your Notice of Motion on an anti slap to list the allegations you're looking to strike. And in particular, in a defamation matter, when there's many statements, courts find it helpful if you number, the statements. Yes, defamatory statement, one fan matory statement two, and it's all in the notice, and helps you not run afoul of a 15 page limit of your anti slap motion by including these and identify them in the notice. And I've never read of an anti slap motion being denied, because a party provided too much detail in the notice. And I gotta tell you, I feel a lot of sympathy for Judge rice here who ruled on this the trial level judge's ruling on these anti slap motions, see huge burden to prepare the tentative ruling and hear argument and to try to guess what a party thinks is the most important of the allegations to strike. It's really unfair to the trial judges who are working really hard. So I kind of agree with this decision. And in addition to the notice, best practice at the end of your points and authorities is to clewd include an alternative argument, if for any reason, the court concludes that the entire complaint should not be stricken, we request that the individual items identified in the notice be stricken just to cover your bases.
Tim Kowal 22:23
I'm surprised that you you agree with this, but your upshot is that you really should include an alternative argument that the A Yes, Judge, you should strike the entire complaint or the entire entire cause of action. But if not, then at least strike these specific allegations.
Jeff Lewis 22:38
Let me say this, I don't know if on substance, this is the correct decision. But what I'm saying as a best practice, you want to make life easy for judges, and you want to not irritate judges. And if you have a particularly complex complaint with lots of moving parts, lots of causes of action and subsidiary counts or allegations, it sure makes the courts job analyzing it much easier if you prepare a chart or a list of troublesome statements.
Tim Kowal 23:07
Yeah. And I'd like your advice about if you're going to do that chart, you say you often do that in the notice so as not to impact your 15 page limit.
Jeff Lewis 23:15
Right. Yeah. And it'd be complying with this, this decision in terms of giving both the court and the other side notice of your alternative argument to strike parts of it.
Tim Kowal 23:24
Yeah, yeah, you have to give that you have to give that notice. Anyway, so you might as well put it right in the notice. Yeah. Okay. All right. Well, well, a good case. I think that's a good case to to be aware of. And, as you say, Jeff, even whether or not it is the right substantive result, that is the right guide to doing an effective anti slap motion, if you don't do it, because again, even if even if the courts wrong and that you should be able to you know, the plaintiff, the defendant should have been able to prevail on appeal, the plaintiff wanted to be able to prevail at the trial court level, right, rather than have to go all the way up on appeal. So make it easy for the trial judge. Yeah, absolutely. All right, the next next case, you want to talk about this ministerial duty to create a database and this cannabis case, what's this about? Yeah,
Jeff Lewis 24:06
I don't do any cannabis law. But this case caught my eye. It's an August 2 2023 decision each and each PC versus Department of Cannabis Control. Now, I do a bit of lay on use work. And in those types of cases, it's often a dispute about whether a city or a county or other approving agency has a ministerial duty, let's say to approve a project or duty to act or discretionary duty to act and it's a ministerial duty. It's much easier for litigator like me to get the courts to step in and grant relief on a petition for writ of mandate. On the flip side, it's easier for the city or county to obtain a defense judgment if the city or county can argue that's a discretionary duty. So this case caught my eye because most of the decisions I find on this issue of this dichotomy between ministerial and discretionary come down on the discretionary side. And in this case, there was a law. Legalizing marijuana in California requires the state to create a database to track the distribution of cannabis products and flag, irrigation irregularities in the state did enter a contract with a software developer to create such a database. But there was no database that was ever created that perform this function of flagging regularities.
Tim Kowal 25:29
What types of irregularities is the state concerned about here? Yeah, that's a
Jeff Lewis 25:33
great question didn't really develop those facts in their opinion, but I assume growing product in an unregulated way? I'm not sure. I guess from seed to cultivation, the state has an interest in tracking where things are grown, shipped, packaged and sold them for the entire chain.
Tim Kowal 25:54
I'm not a kind of sewer in this area. So it is. So it is outside my wheelhouse. But I wonder if they're trying to track the THC content? Is that is that part of the ambit of this?
Jeff Lewis 26:04
Oh, that's interesting question. Yeah. Yeah, I don't know or are certain products are coming from a certain part of the state or certain county or certain city or out of state? Who knows? The question, the legal question on appeal is, did the state have a ministerial duty to create a database that created that was able to track or flag irregularities? Was it enough for the state to simply say, Yeah, well, we entered into a contract the software developer, that alone discharges our duty, the Court of Appeals said, Nope, the statute was very specific here, that you shall have a database that tracks and flags irregularities. And therefore, the there was a demurrer dismissing the case. And the Court of Appeals said that was err, and that the case could go forward based on mere ministerial duty. And if you're a trial lawyer or an appellate lawyer that files mandamus actions or opposes mandamus actions, and you're looking for a good discussion of the distinction between ministerial and discretionary. I found this case pretty helpful.
Tim Kowal 27:07
Yeah, that's interesting. Do you know, Jeff, who filed this this lawsuit? Is he in HPC? Is this one of the the the disgruntled entities who didn't get the contract to create the database?
Jeff Lewis 27:19
Yeah, that's a great question. I don't know. I don't know. I don't know. There was an issue about standing by it and find that part of the opinion relevant or interesting? Yeah. But we'll put a link to the case. In our in our show notes.
Tim Kowal 27:32
Yeah. Okay. Well, interesting case. All right. The one other case I wanted to flag before we get into some tidbits and legal news. This just comes up every now and then something to keep in the back of your mind. If you ever see a default judgment, make sure you're you're looking at the proof of service, because party service of a summons is a jurisdictional defect that goes to the fundamental jurisdiction of the court. And so it is never untimely to move to vacate as a default judgment that is based on defective service of the summons. So this is bra versus Tao from last month, July of 2023. Out of the Second District Court of Appeal, plaintiff, who happened to be an attorney got a default judgment. years later, the defendant got wind that hey, you know, the plaintiff is the same person who served the summons of the complaint, and so on that basis moved to vacate under federal civil procedure section 473. D, the Court granted the motion under 473 D A facially void judgment can be vacated at any time, that includes a judgment that is void for lack of valid service of process. The judgment here was was facially void because the judgment in service of summons indicated on their face that the summons was served by a party, which is prohibited. Plaintiff argued that, hey, we substantially comply, there was actual notice of the summons of the complaint. So what's the hang up here? The court said no dice, the defect here went to the courts fundamental jurisdiction. So there was no time limit by which this default judgment can be set aside for a facially void service. All right, Jeff, I got let's let's move on to a few legal tidbits here. Let's see. First I thought we would talk about we had mentioned this some months ago, that, you know, we've in the COVID era, we've all gotten used to remote proceedings, even remote trials, but those were only authorized temporarily until July 1 2023. Well, it turns out that on June 30, the day before the sunset, the Senate and the Assembly passed SB 133. And the governor signed it on that date. It extends remote proceedings, which would have expired on July 1 2023, until January 1 2026. So we have another two and a half years to figure out if remote proceedings are with us to stay or if there's going to be some some change to how we conduct that. What do you think, Jeff?
Jeff Lewis 29:56
Thank goodness it's real access to justice issue, its costs Eating for our clients. And my only caveat is look three years, four years in a pandemic, people should understand how to mute themselves on La court connect and not carry on a side conversation that the entire court can hear.
Tim Kowal 30:13
Yeah, yeah. Yeah, there is a, you know, I was just on a kind of a pre screening call for my oral argument tomorrow on the sixth district. And, you know, the court clerk was was advising counsel. Now, you know, just because you're appearing remotely doesn't mean that there is any less requirement of decorum. So please don't you know, turn your back to the to the panel or don't take a phone call. And I just found it surprising that, that the clerk had to remind attorneys not to take phone calls when you're on a remote proceeding with the court.
Jeff Lewis 30:42
Yeah, that's, that's a multitasker there.
Tim Kowal 30:45
Yeah, well, and for that matter, there was a just another tip that came out of the Los Angeles County Superior Court, reminding attorneys to follow the dress code Superior Court of Los Angeles County's dress code policy requires appropriate business attire. Actually, the announcement was that the the dress code requirement was being resumed the courts policy requiring attorneys appearing in court and remotely to wear appropriate business attire is once again, in effect. Again, Jeff, I wasn't sure that it was put on hiatus. I did notice some drop in decorum in the dress code. But I wasn't aware that that was that was by relaxation of the rules.
Jeff Lewis 31:27
I heard anecdotally, during COVID. In court, criminal proceedings up in LA, that there's quite a bit of relaxation in terms of what people wore in court. And let me just say on a related note, in Orange County, if you attempt to appear by video, but you don't turn on your video, and you try to just appear by audio, the judges down there I've found are not excited about that. I've heard more than once an Orange County Superior Court Judge say, either show up here in person or turn your video on one or the other.
Tim Kowal 32:00
Yeah. Yeah, it's not it's not nice to have one way conversations. One person is on camera. You both gotta be on camera. Yeah. All right, another. Another bit of legal news. More judges apparently are needed in Riverside County, the Court of Appeal. Last month in July 2023 Dismissed some 44 criminal defendants who could not be brought to trial within the statutory deadline. The news of that of that incident came out in people versus tapa July 11 2023. Case and we sorely need additional judges so that we can meet the speedy trial requirements.
Jeff Lewis 32:37
Are you announcing your run, Tim, is that an announcement that you're running?
Tim Kowal 32:40
No, I profess No, no qualifications to preside over any criminal proceedings anyway. Another bid, I like this one. I want to know what you think about this. Jeff. There's a proposed rule to encourage tentative opinions. The San Diego County Bar Association and its appellate practice section are proposing an amendment to rule of court 8.256 to expressly allow although not require court of appeal panels to issue focus letters or tentative opinions before oral argument, the new proposed language would adopt verbatim the first districts local rule 15. What do you think, Jeff? We've always been, we've always been pretty supportive focus letters and tentative opinions. I thought about this was a solution hiding in plain sight to just put this right in the rules of court.
Jeff Lewis 33:27
Yeah. I've never met an appellate attorney that didn't enjoy the opportunity to get a focus letter or tentative opinion, even if it's against you, because it really helps you sharpen your argument? Yeah, I'm all for it. Yeah.
Tim Kowal 33:39
Okay. Here's a couple. A couple interesting cases worthy of a whole write up. But here is a sanctions case, little over $5,000 and sanctions against plaintiff's attorney under Section 120 8.5. On the grounds that plaintiff was unreasonable is actually plaintiff's counsel was unreasonable in not engaging in the pretrial issues conference remotely versus in person we just talked about. Remote proceedings are now continued to be authorized until 2023 or 2026, rather, but this attorney decided I want to I want to do the pretrial issues conference in person. The other side said, No, there's no reason to do it in person. That's a waste of time. I want to do it remotely. And the judge didn't like the position taken by the attorney and insisted on it being in person and sanction that attorney 550 $700 and change and that was that was upheld on appeal, that the sanctions were also imposed against the client, but the Court of Appeal reversed as to the client.
Jeff Lewis 34:39
Yeah, yeah. It was interesting, you know, from the from the appellate decision, it's hard to tell exactly what happened below. But it seemed like one of the attorneys said, See in my office for conference, and that kind of strict compliance is a pre COVID legacy that I don't think is going to be common going forward. By zoom, you know, when you do a zoom conference, you can see the expressions on somebody's face. It's just as good for an issues conference.
Tim Kowal 35:09
But you think so? Okay. Well, I was gonna say that before, you know, before COVID. And before zoom, the preference was always to have these that meet and confer conferences in person. But I guess that was as compared to over the phone. But when you bring a potential for a for an on camera on Camera ZOOM conference into the mix, that that maybe there's not a good reason to put your foot down and say I insist it be in person rather than over zoom. Yeah, yeah. Okay, another. Here's, okay. This one is about a particular discovery rule that I hate. Back in 2019, the legislature amended CCP 20 31.2 80, to include a requirement that the party producing documents in response to a request for production must identify the specific demand number they are responsive to. So here's this came up in a recent case where plaintiff went ahead at the at the outset of the case before there were any requests for Production Production serve, went ahead and just voluntarily produced kind of like a rule 26 disclosure just produced a bunch of documents relevant to the case. And then later on the defendant propounded RFPs asking for the same documents that have already been produced, and then jumped up and down when, when the plaintiff didn't promptly or timely respond with with the CCP 20 31.2. At disclosure, I linking up all the Bates numbers, which was responsive to which RFP request, and we ended up filing a motion to compel and getting sanctions against the party. But the Court of Appeal reversed and held that the identification, I thought this was interesting, the identification requirement is in the production statute, not in the response statute. So there's no requirement that the identification be set out in the responses, I guess it means that when you produce the documents themselves, you're supposed to include some sort of index, but the requirement does not actually apply to the, to your set of responses to requests for production, which is good to know.
Jeff Lewis 37:10
Absolutely, I first of all, I joined in your disdain for this rule. And on a practical level, if you've got a case with 100,000 pages, it's the lawyer who's organizing which beats stamp numbers are responsive to which request, there's no real purpose serve and having a client verify a table showing which is responsive to which and here the lawyer just provided an unverified detailed table that complies with the production statute. So I'm on. I'm on the side of the majority here.
Tim Kowal 37:41
Yeah, I thought about you mentioned earlier, Jeff, that you enjoy Text Expander I thought about I thought I had done this, I just checked my text expander I thought I'd created a text expander email to opposing counsel proposing that we mutually agreed to waive the requirements of section 20 31.2 at for purposes of our case, so that neither one of us can foisted upon the other, the other one has a great idea of harassment and oppression.
Jeff Lewis 38:06
That's a great idea, or maybe slip it into a protective order. You know, oftentimes you have a stipulated protective order, slipped into the final paragraph and see if the court signs it. I'm not suggesting you deceive opposing counsel, but it would be a good paragraph to add to your standard protective orders.
Tim Kowal 38:22
Yeah, that's right. Okay, here's a here's a little bit of a nerdy distinction made by a ninth circuit. opinion, the Ninth Circuit reminds reminds us all that a single document may contain a court document or order may actually contain several orders. And just because there's one order in the dock, or one, one of the orders or rulings in the document is appealable doesn't mean that the rest of them are and for that matter, vice versa, just because one order is not appealable. Don't stop reading, because there may still be an appealable order in there somewhere. So that case, let me see if I have that case. Handy. It's in Blair. Oh, well, so coming up quickly for me. But yeah, we'll put that one in the show notes. I thought that was interesting that I do notice that the reason I stood out to me, Jeff is because sometimes I do see that I'll be reading an opinion or a or an order. And I think something in there that kind of that kind of sounds like an injunction order, even though the rest of the order isn't really in the tenor of an injunction. This particular order may be injunctive in nature and therefore appealable.
Jeff Lewis 39:24
Yeah, interesting. I don't practice often in the Ninth Circuit, but I was really interested to read that.
Tim Kowal 39:29
Okay, here's a here's a perennial call for civility in Gonzalez county of Los Angeles and the Second District Court of Appeal opinion recently, the Appellate Court affirmed, but it ended with a civility reminder, it said, quote, additionally, we are troubled by the conduct of plaintiff's counsel toward both the county's counsel and particularly the court we appreciate vigorous advocacy of attorneys and representing their clients. But sarcasm, personal attacks and an obvious lack of respect are not susceptible in the courtroom such behavior undermines the attorneys credibility and hurts the clients.
Jeff Lewis 40:06
Yep, yep. Ouch.
Tim Kowal 40:08
Okay, that's, that's all I had flagged for this week, Jeff. Okay, well, I
Jeff Lewis 40:13
think I'm losing my voice. So I think that'll wrap up this episode. We again want to thank casetext for sponsoring our podcast. Each week we include links to the case we discussed from casetext daily updated database of case law statutes, regulations, codes, and more in our listeners can enjoy a special discount on casetext research at casetext.com/calp That's casetext.com/C A LP.
Tim Kowal 40:37
Alright, and if you have suggestions for future episodes, topics, guests that we should bring on, please email us at info at cow podcast.com. In our upcoming episodes, please look for more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis 40:51
See you next time.
Announcer 40:52
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 ca l 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 www.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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