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California Appellate Law Podcast - Jeff Lewis

Untimely & Defective Notices of Appeal: April 2023 Cases & Tidbits

Tim Kowal     May 2, 2023

On this April 2023 cases & tidbits episode, we warn about several cases where an appeal is lost because of failure to appreciate the appellate deadlines—which are often tricky to determine:

Zen riddle: If you never received a Notice of Entry or stamped order, then does the 60-day deadline begin to run? Answer: Upon mailing. (It is possible you will never receive it—but that doesn’t affect the deadline to appeal!)

⌚ An appeal can be filed up to midnight on the 60th day. But not a second after! Appeal filed at exactly 12:00 a.m. is the 60th day. One minute late might as well be a year late.

A file-stamped order is a “triggering document” that starts the 60-day clock. But what if only the certificate of mailing is stamped? No good—the 60-day clock isn’t triggered.

What if the order is stamped, but the stamp isn’t signed? There’s no such requirement—your 60 days still runs.

Also: Justice Yegan will follow precedent on resentencing “lemming-like,” but is going to “kick and scream on my way down to the rocks below”; CA Ct. App. overrules SCOTUS, arb denials might no longer be stayed pending appeal.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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

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.

Jeff Lewis  0:18
And I'm Tim Kowal. Well, Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some news and perspectives they can use in their practice. As always, if you find this podcast helpful, we are most appreciative if you help expand our audience and recommend it to a colleague.

Jeff Lewis  0:36

Right and before we jump into this week's discussion, we do want to thank casetext for sponsoring our podcast, please text is a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. East Texas relied on by 10,000 firms nationwide from solo practitioners to American law 200 firms and in house legal departments. In March 2023, casetext's launched co counsel, the world's first AI legal assistant who counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy. Our listeners can enjoy a special discount on case Tech's basic research plan at casetext.com/calp That's casetext.com/calp.
Jeff Lewis  1:17 
I tell you, Jeff, it's rare since I got co counsel. It's rare that a day goes by that I don't use it to generate a quick and dirty legal research memo if I'm on the phone with a potential client or if I'm writing a brief and I have some idea that pops into my brain. I want to know if it's harebrained or not. I just punch in the legal research query. And it shoots out a junior associate level research memo that tells me if I might be onto something or if I'm a crackpot, so it's extremely useful, and it's a great product. So Jeff, it's been I think over a month since we did a cases and tidbits episode, so we thought we would cover some recent California court of appeal cases and another California Ninth Circuit news of note this episode. So we're going to kick right off with few recent cases that deal with one of our favorite episodes. Jeff, we'd like to jump around the corner and scare poor trial attorneys about the notice of appeal and filing timely notices of appeal and having the the Notice of Appeal formatted correctly. So the first few cases deal with those threshold issues and getting a good timely Appeal File from an appealable order. The first one is dannelly vs. Whoo. It's a fourth district Third Division case from March 2023. It's an unpublished decision. But it involves the proposition that the 60 day appellate deadline runs from the date of mailing and receipt or lack of receipt is irrelevant. That's the important takeaway from Dan Lee vs. Woo. So this is how I would set up a discussion about Danly versus Woo, is that opposes this trick question. So you know, you have by default 180 days to file your notice of appeal that 180 day deadline applies if no one serves a triggering document under Rule 8.104 triggering document would be either a Notice of Entry of Judgment or a file stamped copy of the order or judgment. And if you never received one of those documents, doesn't that mean you have 180 days to file your notice of appeal, no deadly vs will confirms that focusing on whether you received the triggering document is the complete wrong focus. Because you can't be sure just by whether you received it or not whether it was mailed. And that's the only thing that counts. That's what the defendants learned and dannelly versus Whoo, they never received a notice of entry. So they appealed just under the 180 day deadline. And it was a pretty big appeal to it was over a $3.3 million default judgment. But it turns out the plaintiffs had served a Notice of Entry, they mailed it to the addresses that the defendants had on file with the court. And they did so just a few days after entry of judgment about five months before the notice of appeal was filed. But wait, the defendant said we never got the Notice of Entry. We dutifully checked our mail and it never arrived. Sorry, doesn't matter. The 60 day clock runs upon deposit into the mail. And the money quote here from Mezcal versus Culver City Unified School District way back in 1970. case so this has been the law for some time, quote, the risk of failure of the mail is on the addressee. Now one might ask doesn't this rule invite abuse? Wouldn't it allow a prevailing party to prepare a false Notice of Entry and proof of service without recourse?

Jeff Lewis  4:29
Yeah, even though there's not even a requirement that you file a Notice of Entry router. So one could just serve a Notice of Entry of order or claim they served a Notice of Entry of order. never showed them the docket so appellate counsel wouldn't have notice of it. And yeah, it is an area ripe for abuse. Yeah, I

Jeff Lewis  4:47 
can't tell you how many times Jeff that I've talked with a client or a or an attorney, you know, potential client and I tell them the importance of the triggering document that you know about the Notice of Entry. I have to know whether there's been mailed a Notice of Entry well I looked on the on the docket and it's not there doesn't matter. That doesn't tell you anything. Yeah, I didn't notice they're sure that confirms it for you. But if it's not there, it doesn't prove the negative.

Jeff Lewis  5:11 
No, no, no. And I didn't notice at the end of it at this decision, there was an interesting tidbit or lifeline issued by the Court of Appeal reminding parties, they always have the right in the trial court when trying to attack a void judgment to try to get around a lapsed 60 day period of appeal, probably far too late to help these parties. But it's always good to remember to bring a late filing deadline to the trial court's attention first, in the case of a void judgment.

Jeff Lewis  5:35 
Yeah, that's right. And back to my rhetorical or not rhetorical question may be about whether the rule about the fact that it's only the mailing of the Notice of Entry, or the file stamped copy of the judgment that is relevant to the receipt doesn't matter. Does that invite abuse? What is the recourse for someone who truly didn't receive the triggering document and had no way to receive it? And yet, it turns up later on, you know, in a motion to dismiss the appeal. I actually don't know that I know the answer to that, Jeff, is the recourse as you suggest to seek relief in the trial court,

Jeff Lewis  6:07
that seemed to be in the case of a void judgment. As to other instances, I don't know that there wouldn't be much relief.

Jeff Lewis  6:13
Yeah, yeah. I don't know, either. That's why I think yeah, even though you have that 180 days is the default period, if there's not a triggering document, because you never can be sure that maybe there was, you know, a triggering document dropped into the mail. But as the message LK says the risk of failure of the mail is on the addressee. So maybe you always do have to just assume that your deadline to appeal is 60 days. Yeah, that's the safest practice. Okay, so that was dannelly versus Woo. The next case along the same vein, this is kind of a fun one if McCobb and appeal filed one minute late literally one minute late, was dismissed as untimely. In McKenna vs. Sony Pictures Entertainment. This is a case involving the film once upon a time in Hollywood. It's an unpublished case out of the second district Division five. So here's the setup in McKenna versus Sony. After getting hit with an anti slap award, the plaintiff and McKenna filed a notice of appeal, the plaintiff McKenna had already filed the order granting Sony's anti slap motion based on alleged misappropriation of the likeness of the late actor Christopher Jones in the Quentin Tarantino film, Once Upon a Time in Hollywood, to file the notice of appeal, the attorney logged on to the E filing system in the evening of the appellate deadline. So it's the last day and it's at night. So it's really late at night, it's 11:52pm. So you're going on the edge, you're seven minutes and some seconds away from your appeal being untimely. And just as Murphy's law would dictate, the attorney found that he was suffering from a slow connection. And because of that slow connection, he says the notice of appeal was not actually received not file stamp until 12am 12 o'clock on the nose, and the rule state that it has to be filed by 1159. So 12am becomes the next calendar day, that becomes the day after the deadline one day late, and in fact, only one minute late. The plaintiff also had a second problem. The Notice of Appeal did not identify the order being challenged on the appeal or the name of the appellant. And so the clerk initially rejected the notice of appeal for that reason. So the morning after the deadline, the plaintiff filed a motion to amend the notice of appeal to correct those errors, and also explained the E filing problems. But the court of appeals still dismissed the appeal. The case applied the rule providing for relief for E filing mishaps, much more narrowly, then did the case we covered a couple of months back and Garg versus guard, that's a fourth district Third Division case from September of 2022. That case stood for the rule that if you suffer technical problems and the E filing process for the Notice of Appeal, you can seek relief by filing a motion directly in the Court of Appeal to make that showing but it has to be done immediately. And in that case, I think it was about 30 days later that that motion was filed and that was not immediate enough to warrant that relief. The court and back to McKenna The court also declined to invoke the doctrine of liberality which the same second district invoked rather liberally for that matter in another recent decision in Magyar versus Kaiser Permanente. The upshot is when it comes to invoking the rules that might relax the deadline to appeal, your mileage may vary, so don't count on them. Guard versus guard may have gotten the appellant some relief, but was not able to get that relief here in the second district.

Jeff Lewis  9:41 
And context is everything. This decision here came from Division five of the second district that's a Division I really enjoy representing respondents

Jeff Lewis  9:52
responded friendly division. Yeah, good. Yeah. Yeah, very strict on the application of the procedural rules there are right the next case also we're continuing in the vein of technical problems in filing the notice of appeal and complying with the appellate deadlines. This is the case of Castillo vs McCreary. A piecemeal notice of judgment is not sufficient to trigger the 60 day deadline to appeal. So here's one, we've covered two cases where the appellant was found without relief and found to have had an appeal dismissed. This time, the appellant did get some relief. So the way I set up this case is, you know, it prompts us attorneys to ask ourselves every now and then whether we actually know how to determine the deadline to file our notice of appeal. So Castiel provides us a good test case here. So here's what happened. On September 3, the trial court entered admitted order imposing discovery sanctions of $6,500. So first, you have to ask yourself, is that an appealable? Order? Well, I remember certain discovery sanction, but most discovery orders are not appealable. But if they involve sanctions, they may be appealable. Let's see $5,000 It has to be more than $5,000, it has to be more than 5000. This was 6500s. Okay, so it's an appealable order under nine oh 4.1 a 12. But the minute order was not file endorsed. And so you might you should be thinking at this point under Rule 8.104. Let's see, in order to trigger the earlier 60 day deadline to appeal, it has to be a file endorsed copy of the appealable order. So this one wasn't file endorsed. Okay, so maybe the 60 day deadline doesn't apply. But the order was accompanied by a certificate of mailing, and that certificate was file endorsed. Okay, so the order isn't stamped, but the proof of service is stamped, what does that do under 8.104. So and then the default deadline, remember to take an appeal is 180 days to file endorsed order showing the date it was served triggers the 60 day deadline to appeal. So the question was was a non stamped order attaching a stamped certificate of mailing enough to trigger the 60 day deadline under Rule 8.104. Close call, the respondent made a valiant effort to get the appeal dismissed. But under Alan versus American Honda, the court may treat the order and certificate of mailing as the same document for purposes of complying with the part of the rule that requires the order show the date of mailing. But are they the very same documents such that the file stamp on the proof of service constitutes a file stamp on the order of the court held? We are not aware of any court to have taken that approach? And we declined to do so here. So the courts conclusion was the trial court's minute order is not truly file endorsed, though the 60 day deadline to appeal did not apply appellant had 180 days and made it timely filed it within that time.

Jeff Lewis  12:38 

I have absolutely nothing to say. Yeah, well.

Jeff Lewis  12:42 
And I funny enough, I do have one other case that also deals with the file stamp issue. So you know, Jeff, you're the between the two of us. If someone has a question about some vagary, about the California anti slap law, then you're the one that you're the co host are going to go to but if someone has a question about the vagaries of California law about file stamped orders, and what what counts as a triggering document or AICPA rule 8.104, then I want to corner that market, Jeff, because I got another case about file stamp in McKinsey versus Altia. Resources Corp, bring it on. In that case, a file stamp signed order order triggers the 60 day deadline to appeal even if the file stamp itself isn't signed. So here's another creative argument here about whether the file stamp has to be signed to constitute a triggering document under Rule 8.104. So again, we're dealing with 8.104. What constitutes a triggering document, either it's either a Notice of Entry, or a file stamped copy of the order showing the data was served. In McKenzie, the judgment of dismissal following a demur was stamped, and it was attached to a proof of service. But McKinsey waited more than 60 days to appeal. But wait, McKenzie urged that the judgment and certificate of service were defective, and so could not trigger the 60 day deadline to appeal because the three reasons actually the certificate of mailing was signed with an illegible scribble court said, Well, we can read it. Okay. And besides, even if we couldn't, there's no rule that says that we have to be able to read the signature. So that argument didn't work. McKenzie also argued, well, well, the file stamp on the judgment wasn't signed, you know, sometimes you see the file stamp has a signature on it. Now, there's no requirement that the stamp be signed, even if sometimes the clerk has a practice of signing and that's not required under Rule 8.104. And then the final argument that McKenzie raised to try to save her appeal from being untimely. The certificate of mailing only says that the proposed judgment was served, not the actual judgment. And the court says that would have been a good argument if it was right. But it does say that it served a judgment that we don't know what you're talking about. So the appellants effort did not succeed, but I note that she was right to scrutinize this document to try to Find some defect tried to find some way that it didn't qualify as a triggering document under Rule 8.104, especially the file stamp order triggering document because there, there are a lot of quote requirements there actually that need to be met, it has to be signed, a signed order has to be stamped, it has to be accompanied by a proof of service certificate of mailing. And it all has to be in the same document. It can't be, you know, all piecemeal under Allen versus American Honda. And so if you miss any one of those requirements, you have a good argument that that's not a triggering document, the 60 days doesn't apply, you have the full 180 days to file your notice of appeal. That's why I think a Notice of Entry is a much cleaner way to start that period. Yeah, cases

Jeff Lewis  15:41

great checklist of what to look for. And it's a good example of why AI is not coming to replace you anytime soon, is you really need a lawyer to look at these checklists and the document to understand whether or not the deadlines have been triggered or not.

Jeff Lewis  15:53 

Yeah, sometimes you really do have to spend quite a bit of time to figure out what is the deadline to appeal. So again, the best practice as we talked about earlier, it's really, really best to just file within 60 days, even if you think you have longer Why risk it? Yeah. Okay. Okay, Jeff, two more cases, and he's maybe gratefully to our audience do not involve file stamps or rule record a point 104 finally going to try something a little new. We're gonna talk about a Supreme Court California Supreme Court decision in people versus strong. The rule here is that a mere procedural error is not a miscarriage of justice. Now, sometimes, you know, my take away from people versus strong is that sometimes even appellate justices get annoyed by the rules of appellate procedure. In People vs. Strong apparently, the entire panel would like to have affirmed this denial of a resentencing petition filed by Eric Green, who was convicted in 1993, for his part in the murder of Richard Schell Erdene had served as a getaway driver and urged the gun man to shoot him shoot him, which the gunman did fatally. But the Supreme Court held in people versus strong, that earlier findings held that the earlier findings that a criminal defendant was a major participant and showed reckless indifference we're not binding because recently, the court has relaxed those standards. So there's a new rule there's there needs to be a new determination of those issues of those factual findings. So upon filing of a resentencing petition and alleging that he could not be convicted of murder under the newly relaxed standards, or again, is now entitled to re sentencing. Justice Gilbert writing for the majority concludes it is checkmated by strong this was in the in the Court of Appeal opinion. But Justice Kenneth Uragan is not going quietly, He lodged a dissenting opinion that says that well, yes, it's true under the doctrine of Starry decisis, quote, I must follow the rulings of the Supreme Court. And if that court wishes me to jump off a figurative Polly, I lemming like must leap right after it. However, Justice Kagan goes on, I reserve my First Amendment right to kick and scream on my way down to the rocks below. So here's how justice Egan would have gone about affirming the denial of re sentencing. He says respectfully, there is another way to discharge our duty at the California Court of Appeal. That is to say the California Constitution admonishes us not to reverse an order unless there is a miscarriage of justice. And he says that here there is no miscarriage of justice, because there is only a procedural error. It does not matter that appellant quote checked the box stating he could not presently be convicted of murder. This statement is false. And because Justice Kagan concludes that appellant had falsely checked the box, a new round of litigation, which triggered a new round of litigation. He concludes this is a poor idea stemming from the declared false premise majority against sympathizers but thinks that operative precedent indicates that the error is structural, and indicates it's hoped that the Supreme Court will offer further guidance on whether these section 11 72.6 evidentiary hearings in felony murder convictions are ever subject to harmless error analysis. So my comment on this, Jeff, is that I thought it was odd that the court assumed the right at issue is structural, and apparently despite a clear articulation of such a rule by the Supreme Court, because in another recent case, last year in People vs. Whitmore the appellate court held that a right to an in person jury trial was not structural, even though it's hard to imagine a more textbook example of a structural right of procedure. So I just find the rule about what counts as structural and per se reversible error and what is subjected to the harmless error analysis is sometimes it seems a little bit arbitrary. Yeah,

Jeff Lewis  19:46
yeah, no, I can see that. And let me say, I read justice Egan's dissent. And I gotta tell you, I come out in favor of the majority here and super concerned anytime a justice is talking about an amorphous rule like not reversing unless there is a miscarriage of justice as a standard for when and whether follow binding precedent. It's concerning. I'm glad the result turned out

Jeff Lewis  20:10
the way it did here. Yeah, I sympathize with that. I just think it's strange that there is because there is a subsequent relaxing in the standards. That means that what that all these convictions need to be they're all going to be subjected to re sentencing motions and new trials. It seems strange to me that something about that seems upsetting of the rule of finality of judgments.

Jeff Lewis  20:29 
Yeah, unless you're the criminal defendant who was sentenced one too late to benefit from the rule.

Jeff Lewis  20:34 
True. Sure. Okay, one last case before we move to some appellate and legal tidbits, and that is I wanted to cover the the second district decision in Sipho versus lift that indicated we are not bound by the US Supreme Court Viking River decision. This was a California court of appeal decision saying that we are not bound by the US Supreme Court. Commentators have predicted that California appellate courts might start thumbing their nose at the United States Supreme Court 2002 holding in Viking River and thumb its nose is just what the second district did in cipher versus lift. In that case, the employee argued that Lyft had intentionally misclassified drivers as independent contractors rather than as employees, and argued that Lyft should could not enforce their agreement to arbitrate representative paga claims. The parties agreed that the individual claim had to be arbitrated. But what about the representative packet claim? The US Supreme Court held that once an individual claim is relegated to arbitration, there was no longer any standing a maintain a separate representative action in real court. But the California Court of Appeal disagreed with the US Supreme Court to repeat a California Intermediate Court overruled the US Supreme Court at least when it comes to standing in the California court. On what basis did the second district do this? Here's what it did it quoted as Justice Sotomayor recognized in her concurring opinion in the Viking river cruise case PACA standing is a matter of state law that must be decided by a California courts. Until we have guidance from the California Supreme Court. Our review of pega and relevant state decision authority leads us to conclude that a plaintiff is not stripped of standing to pursue non individual packet claims simply because his or her individual packet claim is compelled arbitration and quote, so Jeff, here was my comment after I read the cipher versus lift case, and I thought it took a bit of pluck for a state appellate court to disagree with the United States Supreme Court, one can disagree with the reasoning of Viking River. And as it concerns state substantive law, as a second district notes, we are not bound by a US Supreme Court interpretation of California law. I just thought it was strange that here on the issue of standing is at best only, arguably a question of substantive law, in my view, and and I may be wrong on this. And some people in the comments when I posted about this case, you know, really disagreed with me. I just thought the practical problem is that if California courts hold that employees have standing to bring representative PACA claims, even while their individual claims are relegated to arbitration, while the US Supreme Court holds there's no standing, then California courts deciding such claims would no longer be subject to US supreme court jurisdiction. In other words, the US Supreme Court has Marbury itself out of representative packet claims while California courts thus far have not. It just seems strange. I have no, I don't really have a dog in the fight. Obviously, I don't have a preference on the substantive issue. I just think it's strange that state courts and federal courts would have different rules of standing.

Jeff Lewis  23:40 
Yeah, I concur with your assessment of clunkiness is super interesting. And yeah, this is not gonna be the final word on this issue.

Jeff Lewis  23:49 
Yeah. But as as commentators more learned than I in this arena have pointed out to me, this result has been expected and anticipated after the Viking river cruise and that Justice Sotomayor is probably right, pointing out that the Viking river cruise comments about standing really are dicta. And this was really an area issue for the California courts to hash out which they will do soon, I believe in these Adolph versus Uber case, which I think is coming up for oral argument just in a couple of weeks here. We're recording this April 28 2023. So I think within who knows how long it takes for it to rule on it, but sometime later this year, we'll we'll be able to report to our listeners on the outcome, that ultimate issue about the standing of pega representative claims in California courts. Yeah. All right, Jeff. Let's give it a rest on the case review for this episode and move on to some news and tidbits.

Jeff Lewis  24:42
Yeah, I'm gonna steal one from you here that you have put into our show notes about the bill proposed Senate Bill 365, which would put an end to a legal loophole and forced arbitration cases where corporations are able to automatically delay court proceedings. proceedings are stayed during the pendency of an appeal on a denied motion to compel arbitration. Senate Bill 365 is one of the shortest proposed laws I've ever read. It merely states that right now affecting of appeals on a denied petition to compel arbitration stage further trial court proceedings. And this would change the law. I'd say it's not staid. And yeah, it's interesting because, you know, employees who have to wait three to five years for an appeal litigation, they don't have the wherewithal to wait a long time to litigate their claims against former employers, because corporations have much more wherewithal and patients and lawyers. So if this bill is passed this 365, it's going to be interesting in terms of the power dynamics and settlement of employment claims. And it's also going to have an interesting impact on the interplay between trial court proceedings and appeals happening concurrently. You could get a case that proceeds down discovery MSJ, even pre trial and even up to the date of trial, and the Court of Appeal at the last minute orders the parties arbitration.

Jeff Lewis  26:03 
That's right. Yeah, that's interesting. So this deals with the case where an employee or a consumer has filed an action in state court, and the company files a motion to compel it to arbitration, that motion is denied. The company appeals, it appeals that determination. And ordinarily that is stayed and the plaintiff has to wait around for two years for that appeal to shake out this Senate Bill 365 would reverse that so that the litigation proceeds despite the appeal.

Jeff Lewis  26:30 
Yeah, by the way, the news of the press about this, and in terms of the sponsors, couch this in terms of corporations and employment claims or consumer claims with the proposed bill is pretty vanilla. It's all petitions to compel arbitration, whether or not you're the corporation or the employee or whoever that's seeking to compel arbitration.

Jeff Lewis  26:47 

Sure. Yeah. Although it's usually perceived that the well heeled are most excited about the rights to arbitrate, in principle, like, it sounds fine. But what about the practical upshot, which would be that the reason that these orders denying motions to compel arbitration are appealable is because unless it's reviewed immediately, the right to arbitrate is forever lost. Because once you go to trial and everything, the whole benefit of arbitration, a speedy and expensive alternative to litigation is gone forever. Isn't it gone forever? If you don't get that stay? Yeah,

Jeff Lewis  27:18 

yeah, I would say that's right. And I would say if this law were passed, you might say see some fewer extensions of time, and accelerated record preparation procedures and these types of cases.

Jeff Lewis  27:30 
Yeah, I wonder if it has to be entitled to priority at that point. It's become priority appeals. And so now, now, not only do the parties who want to compel arbitration, have that procedural tool, but they also get to, in a sense, jump the line in the Court of Appeal and have those issues decided before everyone else. Yeah, yeah. Petitions for supersonic? Yes, that's right. Yeah. That was my other thought is that maybe that that would be the rejoinder that? No, it's if there is substantial merit to that appeal. And the Court of Appeal is persuaded that yeah, it's likely that the appellant is going to be successful, then they could issue a stay of the trial court proceedings. That is an interesting Senate Bill. That's one to watch. Yeah. And then there are real proposals. Yeah, yeah, there were this is credit to Ben Schatz for pointing this out appellate rule proposals are now out for comment. The Judicial Council is invited comment on six proposed changes affecting appellate rules. Included among those are is a rule that changes that would change the notice of appeal form to allow the attorney to join the appeal. So what's contemplated here are appeals from an order granting sanctions against the client or the attorney, in which case we have seen cases. Yeah, you and I have reported on cases where a notice of appeal from such an order that appeal may be dismissed if the sanctions order is against the attorney, but the notice of appeal is filed on behalf of the client who is not aggrieved. It's only with the attorney who's the aggrieved party. So to get around this problem, it would specifically have a place for the attorney to join in the appeal. Where that appeal involves it makes the attorney an aggrieved party as well. And another rule would highlight would amend the form notice of appeal to highlight the requirement to specify the date of the order being appealed. You know, Jeff, you and I comment on a lot of appeals where that form notice of appeal is filled out incorrectly, it fails to to identify the order being appealed. It fails to including identifying it by date. And so it would, you know, highlight make sure that the person filling out that form does not forget to identify by date, the the order being appealed. All right, next on the list of tidbits, California courts have spent nearly half a billion dollars last year on court reporters, but it's still not enough. This was also via Ben Schatz and again, all of these cases and tidbits will be included in our show notes. So we've reported Jeff about the court reporter shortage crisis and how it's no longer a budgetary issue. There is enough money to pay for court reporters and get more court reporters. The problem is there just aren't enough new entrants into the court reporter profession so they are hard to find hard to retain we're getting the more court reporters retire the new court reporters entering the profession. So as kind of a book end to this story about the California legislature in the court system, throwing more money and offering bonuses retention bonuses to court reporters, if a court reporter is not available. Despite all this, these funding increases, Senate Bill 662 proposes to allow electronic recordings to create the appellate record. Stiff court reporter lobby opposition is expected. But this is something that we saw this back in the 90s. We've talked about this Jeff on the podcast about the electronic recording initiative that was started back in the 90s. It was ultimately killed. We only now have a remaining electronic recording system in some juvenile and limited civil proceedings. But otherwise, you have to get either a court reporter to get a verbatim transcript by a certified shorthand reporter or a settled statement or an agreed statement. And that exhausts your options to get to send up an oral record of the proceedings to the Court of Appeal. But if Senate Bill 662 passes, then we may have electronic recordings back on the table that could be interesting option given we have all this shiny new equipment for zoom in all of our courts, everyone is miked up, and it's got a camera in front of them. Only thing standing in the way is legislative authorization for the clerk to hit that big red record button. And then we've got a very competent electronic recording of the proceedings that could be handed off to a court reporter after the fact if it proves that an appellate verbatim record is needed.

Jeff Lewis  31:42 

Yeah, that's a great, great development. I hope it passes access to justice issue in terms of appellants of moderate modest meets means needing an adequate record for review. Yep, yep. Hey, I'm gonna go out of order here pick up another tidbit I want to talk about today. And that's about one of my favorite topics, Tim, the use of cleaned up as a parenthetical signal I got via LinkedIn, there's an author, we'll put her name in the show notes have pointed us to a Utah appellate court criminal law decision. It's a state of Utah versus patent. And in that criminal decision, it's a footnote directing appellate practitioners on the do's and the don'ts of how to use cleaned up. I didn't realize that cleaned up had been abused in this fashion. But apparently this Court was concerned that some folks were using cleaned up well, from unpublished sources that are not be readily available on the internet and voting. Aaron senticles are parenthetical quoting from cases saying things in parenthetical as opposed to directly quoting the court. And so this footnote is a great guideline to say look cleaned up is really supposed to just be used to clean up periods, commas, brackets, internal citations, those kinds of things, not to rewrite sentences, and certainly not to quote from sources that are not readily available. So I think this footnotes a great reference for anyone who regularly uses cleaned up on the do's and don'ts.

Jeff Lewis  33:08 
Yeah, that's right. So now we can have a footnote to your cleaned up. parentheticals. Explain how it's properly done. Right. Okay. Here's a quick one. It's official now AI has passed the uniform bar exam of GPT for the upgraded AI program released earlier this month by Microsoft back to open AI scored in the 90th percentile of actual uniform bar exam test takers. Yep. So So there you have it, you know, AI, write your briefs, and you would be in the upper 90th percentile. A recent bar exam passers? Yep, you're come Skynet. That's right. Another one. Here's here's one tidbit along the lines of one of my hobby horses about summary affirmance is or summary denials. The Supreme Court of the United States has again denied certiorari from a petition seeking review of the Federal Circuit's practice of summarily deciding appeals without written reasons, because I thought this was interesting, Jeff, the petition was only the most recent legal challenge lodged over the Federal Circuit's manner of deciding appeals without commenting on them whatsoever. And we talked about this when we had Lindsey Lawton on the show from Florida and talked about the practice there of summarily affirming appeals and how disheartening it can be to do all that work. And all you get is a per curiam affirmed. But continuing on with this tidbit from the Federal Circuit. At a recent conference, two federal circuit judges defended the courts practice. They asserted that such summary decisions are appropriate in cases where the standard of review is for substantial evidence and where the appellants fatally misunderstand that standard. I can sympathize with that further because the Federal Circuit allows oral arguments in every case that should be enough as Judge Sharon Post said, quote, once you had oral argument, I think you'll agree that you can rest assured that the judges understand your case and spent a lot of time on it. And quote, I wasn't so sure about that. I'm not always satisfied that after oral argument that oh, yeah, I've I've gotten everything I deserved. And sometimes I see them checking their watches or watching the clock on the wall, waiting for me to sit down and be done. But I do sympathise that there are some appeals that gosh, really don't merit a whole lot when it comes to affirming. Like where the judges said here. The review is for substantial evidence. The appellate willfully misunderstands the standard doesn't supply a complete record doesn't say to all the evidence that support the judgment, I can see judges getting exasperated having to write you know, full thorough will articulate doing a better job than the appellant did in reasoning through the the issues. Yeah, yeah. All right. Jeff, do you have anything else you want to share? Should we cap it there?

Jeff Lewis  35:53 

I think that's a good place to cap it.

Jeff Lewis  35:55 
Okay. All right. Well, that's gonna wrap us up. Once again, as Jeff said at the top, we want to thank casetext for sponsoring the podcast. And when each week in our show notes, we include links to the cases that we've discussed, we always use casetext for the daily updated database of case law statutes, regulations, codes, and more listeners of the podcast will enjoy a special discount on case Tech's basic research at casetext.com/calp. That's casetext.com/calp.

Jeff Lewis  36:24
And if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. See you

Jeff Lewis  36:35 
next time.

Announcer  36:36 
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 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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“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

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

Leviticus

"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.)

"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

"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

"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

"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

"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

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

— H.L. Mencken

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