Tim Kowal  0:05  
I'm just gonna have to hold back a guffaw whenever I hear that the appellate timelines are jurisdictional. Welcome to

Anouncer  0:13 
the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Jeff Lewis  0:27 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:30 
And I'm Timkowal, California Department of podcasting license under review. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips. From an appellate perspective. Both Jeff and I are appellate specialists, and we split our practices evenly between trial courts and appellate courts. We work directly with trial attorneys to prepare cases for Trial and Appeal. And in this podcast, we offer some of that appellate perspective on various issues that arise both in the trial court and appellate court.

Jeff Lewis  0:58 
Welcome to Episode 25 of the podcast.

Tim Kowal  1:02 
Yeah, and like the last time we did this, Jeff, we've we've had several guests on, and we've had a lot of great, great conversations. But there have also been a lot of great recent cases of note that we have not had time to get to. So we thought we would share with our podcast listeners some interesting cases that they ought to know about. And you were kind enough to let me go first, although you're always jockeying for the last word, you usually free to give me the first case. So the first case that I wanted to talk about is a Sixth Amendment case. Now usually, Jeff, we've we pretty much talk exclusively about civil cases. So this is a criminal case, but it COVID delays in the court in a criminal prosecution. And I thought it was just so interesting, with a majority opinion and a couple of different concurrent occurrences in the ninth circuit on the denial of on bonk review, and also a dissenting opinion, all with different perspectives on the right to a jury trial in COVID. In COVID, territory, so Olson, in this case, the criminal defendant is a doctor, he's being prosecuted for selling opioids, and Olson, when a critical factor is that all sudden the prosecutors had stipulated already pre COVID to some eight different continuances of the trial. But when the pandemic hit, of course, Olson decided he's going to capitalize and invoke his right to a speedy trial, the prosecution filed a motion for a continuance under the speedy trial Act, the prosecution argued that unless there was a continuance jury trial would be impossible. That's one of the standards under the speedy trial Act is that if a continuance is required, and otherwise it would be impossible to to hold the jury trial that is a good cause ground to continue the trial beyond the ordinary 70 day limit. Under that act, Judge, the district judge Cormac Carney denied the prosecution's motion for a continuance. The judge noted that look, right across the street here, there's orange county government bureaus open, there's, uh, you know, other courts are, are, are pushing ahead in the best way they can. There's no reason that the court couldn't host a jury trial. And Judge Kearney dismiss the action with prejudice, felt judge felt that the constitutional violation here was was so important that he needed to put some teeth on to the remedy here. And it's a rare

Jeff Lewis  3:23 
instance, where a prosecutor is the one who files the appeal is normally it's the criminal defendant that files an appeal, right?

Tim Kowal  3:31 
Yeah, yeah, this was a rare procedural posture. So in a panel decision last April, the Ninth Circuit reversed, and on January 6 2022, the Ninth Circuit denied on bonk review, the majority in Jeff, this is what first really stuck out to me. The majority opinion had no analysis on the sixth amendment. It reference the Sixth Amendment, but then at reference at the speedy trial Act was Congress's effort to enforce the Sixth Amendment. But, you know, we have three branches of government and the judiciary has an independent constitutional duty to interpret and enforce the Sixth Amendment. So even if even if something is permissible, under the statute, it might or might not be permissible under the Constitution. And so I worked through the majority opinion, I worked through the concurrence opinion, a chief judge or Gulia, and also no analysis of the Sixth Amendment. So by this time, by this point, Jeff, I'm hopping mad. I'm thinking that there is a gross constitutional oversight here by the court, but finally I simmer down after I read judge Buma taze concurrence, and he not only does a sixth analysis, but he he does a really excellent historical overview of the the right to a speedy trial tracing all the way back before the Magna Carta. And he traces through precedent and I was satisfied after reading judge Booma taze concurrence that that the Sixth Amendment was not offended here by the by the denial or rather by the, by the delay of this speedy trial, the touchstone here, Judge boo Matej pointed out under the Sixth Amendment right to a speedy trial is to prevent a criminal defendant from being incarcerated while having to wait around a long time for a speedy trial. And Dr. Olson here was not incarcerated. He had been he'd been out free. And then another relevant factor was the fact that there had been some eight voluntary continuances of the of the trial justice judge Collins and dissent joined by Judge Forrest reason that the Sixth Amendment still was given to short shrift by the majority, which I think cannot be denied because the majority didn't give any analysis to the sixth amendment. And that although the pandemic is serious, the right to a speedy trial is too important to be subjected to open into delays like the the delay in the end was some 14 months, as pointed out in the concurrence. And and also pointed out as Judge Carney had that there are several other nearby government institutions that were open and no real reason why why the Federal Courthouse also needed to be needed to be shut down whenever everyone else nearby all the other government institutions nearby were able to, to move ahead. And there was one more bit that I skipped over back in the trial court, Jeff that I wanted to, I was taken aback when reading this. So here's here's what happened after the government filed its motion for a continuance. And Judge Kearney denied it the next step then, because at this point, okay, we got to hold the jury trial. But by this time, the central district judges had already all, you know, had a conference and and issued an order that there were going to be no jury trials. So judge Kearney knew there was going to be no jury trial, regardless of the outcome of the of the government's motion, Judge Carney had to go through the motions and send a formal request to the Chief Judge, we're ready for our jury judge said, send them down. And the judge said, when you talking about you know that we're not doing any jury trials, and the that was one of the factors that the Ninth Circuit really didn't like that it looked like Kearney appeared to be using this case, as as a way to pick a fight with his colleagues over whether and how long the court should be shut down. Ninth Circuit really did not like that. And that was the the main thrust one of the main thrust of the of the majority. And the other concurring opinion.

Jeff Lewis  7:23 
You really think that was a deciding factor that apps and going through those theatrics, that maybe this decision would have come down that this way?

Tim Kowal  7:31 
I think I think the decision would have been decision would have been the outcome would not have been different, make the tenor of the of the opinions would have been different. But I think what what really broke this case was the fact that Olson was not incarcerated, or rotting away in jail waiting for his trial, and the fact that he had sought and received a continuances prior to suddenly invoking the right to speedy trial.

Jeff Lewis  7:53 
Yeah, interesting. You know, 14 months doesn't seem that long to me. And I wonder, you know, COVID is gonna be around for a while coming in waves. And I wonder if in later stages of COVID, if a 14 month delay will how this court might treat it in later. COVID stages.

Tim Kowal  8:10 
Yeah. You had mentioned another another point about whether should should Olson's prior continuances be a factor in continuing a jury trial under the Sixth Amendment?

Jeff Lewis  8:22 
Yeah, I don't, I don't understand why that is a factor a fact that either the prosecutor or the defendant wanted and they both agreed and stipulated an open court to delay the trial during a certain time and the proceedings shouldn't have any relevance. In my opinion, things can change, especially with COVID, and people's view of the ability to be free in their health, etc. And I don't know that I would have found the prior continuances to be particularly relevant.

Tim Kowal  8:50 
I have the exact same thought when I was reading this. And I thought about it from the from a waiver perspective, you know, a waiver has to be a knowing and voluntary act. And the fact that it may be maybe a factor in waiving your right to a jury trial, I think is it's got to be chilling in the future for any other defendant who is considering continuing a jury trial. Gosh, am I my waiving my right to a speedy trial? Because as you said, you know, if things do change, what if you suddenly, you know, get to thinking, Gosh, I wonder my witnesses or their memories are gonna fade or they're in danger. They're gonna they're gonna pass away. I need my I need that trial now. So you thinking changes and when you're a criminal defendant, I gotta. I gotta imagine it's your thing. Your thinking probably changes on a daily basis. Well, so as I mentioned, Olson is a criminal case. But here is a related probate case where there was a right to a jury trial involved. It's a public published decision in conservatorship of Joanne R. It's a Second District Court of Appeal out of Los Angeles. The appellant in that in that case was put under a year long conservatorship and Under the petrous short act governing conservatorships, an appellant is entitled to a jury trial to commence within 10 days of demand. So talk about a speedy trial in that jury trial, the the conservatee can challenge the establishment or extension of a conservatorship. That's Welfare and Institutions Code 5350. So the appellant invoke that right, but here's what the trial judge said about the appellants, right to commence the trial, a jury trial within 10 days, quote, if you'd like to have a court trial with a judge making the decision, we can do that today. If you would like to have the jury trial, well, we can do that as well. But we won't be able to do it today. We can schedule that in November. And bear in mind, this is February. So this is nine months away. And it's only a 12 months conservatorship so she's got to wait, wait out 75% of this entire period before she can even start a jury trial to contest it. the appellant responds, I would prefer a jury trial, but I don't want to wait until November. And then after another short colloquy, she says I think I want to go ahead today and do it, ie with a bench trial waiving her right to a jury trial. So the question on appeal was, and then she she loses just takes up an appeal. And the question on appeal was, was that a voluntary waiver of her right to a jury trial after she was told that you can have the jury trial, but you got to wait nine out of the 12 months? And the District Court of Appeal said yes, it is a voluntary waiver, although the court did have some reservations about it. And I thought that was the wrong result. If if my thought was that if the legislature affords a right, then it ought to honor the courts ought to honor it. The fact that the pandemic at that time had made had made it difficult to comply with that statute to me is not an excuse. The legislature could have modified it. It's had two years to do. So I get it this time. I think it had had a year almost to do so. And it didn't the the governor had been wielding executive emergency powers it could have done he could have done something about it. Presumably the Judicial Council maybe could have done something about it. Unless and until you know, someone does something to abrogate the right. I think it's the court, the courts duty to enforce it.

Jeff Lewis  12:10  
Yeah, interesting. I'm just kind of surprised by this. Every few weeks, we get an order from the LA Superior Court before that we would get orders from the Judicial Council extending certain deadlines for criminal cases, juvenile cases. And I'm really surprised somebody didn't include these conservatorship cases in the extensions. And I think that that should have applied to this kind of circumstance. But the fact that they didn't, I think just means people weren't paying attention when building out the extensions.

Tim Kowal  12:39 
Yeah, that could be and and maybe they don't feel they they need to be that thorough, because they figure out how the courts going to go and bend the rules as needed if we miss anything. Yeah,

Jeff Lewis  12:51 
yeah. Or, you know, maybe, if you're the kind of person seeking to compel a full jury trial in the throes of a pandemic. I wonder if that fact could be used to determine whether or not you're competent whether the conservatorship should add.

Tim Kowal  13:10 
That would be harsh.

Jeff Lewis  13:13 
Okay, it just didn't want all right. The next case I want to discuss is the case called Bixler V. Superior Court. It's not published, but it comes out of the second district Division five authored by Justice and I found it interesting because involves the Church of Scientology, an arbitration clause and the right of persons to leave their religion. And this decision arose from cases or claims of harassment made by former members of Scientology, and the plaintiffs allege that actor Danny Masterson had raped them, and that the Church of Scientology harassed the victims for blowing the whistle on this crime, and they filed a lawsuit. The lawsuit wasn't for the rape, it was for the harassment by members of the Church against these former members of the church. When the plaintiff filed this lawsuit, and Masterson for harassment, the church moved to compel arbitration. And this decision is fascinating reading about the inner workings of the church. Apparently, all church members apparently sign a agreement to resolve all disputes according to me read from the decision solely and exclusively through Scientology's internal ethics, justice and binding religious arbitration procedures. And the trial court enforced this arbitration clause and compel these plans to go to arbitration. But that wasn't the end of the story. The players then filed a petition a writ petition to overturn the order compelling them to go to arbitration initially denied by divided opinion of Division five, and that denial was premised on the Court of Appeal, finding that the players had an adequate remedy by way of an appeal if the court ultimately entered an order confirming an adverse arbitration award. But these plaintiffs then went up to the Supreme Court and in May of 2021, the Supreme Court granted review transfer it back to the Court of Appeal to think again. And this appeal this appellate decision on this remand back to the Court of Appeal is the subject of Justin Rubens writing, which I enjoyed reading it summarizes the issues in play and the conflicts between first amendment right religion, and, you know, the general judicial policy in favor of enforcing arbitration clauses. Here's justice Rubin summarize the case. He said, This case involves both petitioners first amendment rights to leave a faith in Scientology's right to resolve disputes with its members without court intervention, when applied to a dispute that arose after petitioners left the faith in which can be resolved on neutral principles of tort law. We find petitioners right to leave the faith must control. And I'll put a link to the case show notes, but I thought this was an example of very good writing and analysis. And I guess the lesson for the churches if they want an enforceable arbitration process, they need to use AAA or JAMS or some other non religious tribunal for their dispute resolution process.

Tim Kowal  16:05 
Yeah, that's interesting. I have some mixed feelings about that. I wonder, Jeff? I haven't read the opinion. Did it have any talk in there about you mentioned that one of the one of the there was a there was a countervailing analysis, on the one hand, the right to leave a faith, on the other hand, the right to enforce ADR provisions? I wondered if the if they hadn't been leaving the faith. If they if they were still in the church. I take it this clause would have been found enforceable.

Jeff Lewis  16:33 
That and the fact that the harassment occurred after they left, you know, it's an interesting question about whether or not if the harassment had occurred while they were members of the church. But then they left would they be compelled to arbitrate? I suspect the answer's yes. Yeah.

Tim Kowal  16:47  
I wondered even if they were still in the faith. Could they have could the the plaintiffs have have argued that this was a contract of it? He I would I would guess just just I don't know much about Scientology. But from what I've heard that probably a heavy handed provision, I doubt that they would negotiate that point. Do you have a right to join us without having to be subjected to a content to a ad ADR provision, especially a this is a pretty extraordinary ADR provision. That's like you mentioned it's not just like a triple A or jams. This is a What did you call it the ethical and spiritual religious? tribunal? Yeah,

Jeff Lewis  17:23 
the internal ethics, justice and binding religious arbitration procedures of Scientology? Yeah, I'm guessing they don't have published rules for the Scientology rules. Yeah, it'd be interesting. I would love to know how these arbitration agreements are presented, disclosed to members, you know, in large neon writing or teeny tiny print. It's interesting conflict between Yeah,

Tim Kowal  17:43 
yeah, cuz it's not only the the ADR aspect of it, but it's it's the it's almost like a choice of law provision built into it. I mean, who's whose standards rules and laws are, are binding here? Do you even get to cite California law in that particular religious tribunal? Or is it is a completely different code developed by the Church of Scientology?

Jeff Lewis  18:06 
Yeah, a judicial review of an arbitration award in the Superior Court be fascinating to read. I guess we won't see that an opportunity to do that in this dispute. And then the next case I want to talk about was an anti slap case. I love anti slap cases, and involves an attorney who wrote a settlement letter before filing a lawsuit. The case is Falcon brands vs. mazovian. Lee January 27 2022, authored by Justice Goethals and it's a published decision. And this is an interesting one, because it has a kind of a crossover between ethics and the anti slap and Civil Code section 47, which are three of my favorite issues. This is an appeal for an order granting an anti slap. It presented the question of when do settlement communications before a lawsuit is filed? Cross the line from legitimate legitimate settlement conversation to extortion. And in the context of an anti slap motion communications that constitute extortion or outside the protection of California anti slap law. The rule established by the Supreme Court 2006 Was that communicated there conceded to be illegal or legal as a matter of law are out of bounds for anti slap motions, you cannot file an anti slap motion over such communication. And this dispute grew out of a wage and hour claim by a terminated employee the employees attorney contacted the former employer of his client, Falcon, and additional laying out some Wage and Hour violations and wrongful termination of a whistleblower the attorney threatened to disclose to an entity seeking to merge with Falcon a third party to Falcon had violated the law. And it was the attorneys threat to disclose harmful information to a potential merger partner Falcon. That was the focus of the appellate court's decision. Was the communication, merely legitimate settlement discussions that routinely happened before lawsuits was covered? By the anti slap law and perhaps Civil Code section 47, or was this illegal extortion not protected by either anti slap law or Civil Code section 47. Ultimately, the court found it was extortionate that plaintiff's counsel here had threatened to disclose embarrassing information to a third party. And it's a good cautionary tale for plaintiffs about temporary pre lawsuit settlement communications. But I have to say, you know, I file slot motions a lot once or twice a month, and frequently the plaintiff invokes this illegal activity exemption, but I think it rarely applies. And I think with this published decision, I'm going to see this argument raised more and more in opposition to anti slap motions, it might embolden plaintiffs who are opposing slap motions to invoke this narrow action exception too often, in my in my opinion. What about you, Tim?

Tim Kowal  20:48 
Yeah, the The distinction is never been clear. In my mind, as I mentioned to you, after looking at this case, I haven't read it in detail, but I tried to I tried to read the part the analysis about the extortion and what what always confuses me is that it points to one thing that the that the attorney here, Mousavi could have done. You know, she was free to publish the allegations to this third party. If she had done that that wouldn't have been actionable, necessarily maybe an intentional interference with contract or something like that. But the threat to do to do it, even if she didn't wind up doing it, that itself is illegal, so threatening to do something that you're otherwise lawfully entitled to do is unlawful. For can be Yeah, the threat

Jeff Lewis  21:34 
coupled with a demand for money. I mean, the thing that bothers me about this case is it seems to me opens the door to the fact that sometimes before lawsuits are filed, there's a communication saying, Hey, would it be better to avoid all this being aired out in public? Let's just settle a case. And there's an implied threat there of Let's settle or the public's going to learn of your private business? It seems to me just about any time there's a pre lawsuit communication where embarrassing information is at issue, there's an argument here that the implied to make information public could be subject to this illegality exemption makes me a little discomfort now

Tim Kowal  22:12 
uncomfortable. Yeah, well, is the is the line, at least in this case, the fact that she was threatening to communicate to a third party.

Jeff Lewis  22:21  
Yeah. And it was explicit. Yeah.

Tim Kowal  22:25 
Yeah. So it was a so even though maybe, as I mentioned, it's something that she she could have done absent the threat using that as a bargaining chip to to to get a more favorable settlement is just too icky. It's outside of it's contrary to public policy at that point. unlawful. Yeah. Don't do anything icky.

Jeff Lewis  22:45 
Good rule of thumb.

Tim Kowal  22:48 
Alright, so changing gears a little bit, Jeff, this is a recurring point of appellate procedure that we we talked about quite a bit the notice of appeal. So here's a here's a case that demonstrates that an appeal and untimely appeal. I mean, that may be excused in a dependency case. If you have grounds of ineffective assistance of counsel from ground that's not in the in the appellate statutes. But so so here's the here's a setup to it. Last year 2021, the California Supreme Court issued an opinion in in re AR, and in that in in re AR the Supreme Court held that an untimely appeal is not an absolute bar to appellate jurisdiction, at least in juvenile dependency cases. The reason that inrae AR was surprising was because until that time, a uniformity of California case ID cases had held that an untimely appeal was an absolute bar to appellate jurisdiction. But here's how the Supreme Court got around that in re AR had noted that there was a statutory right to competent counsel. And there was also a procedure for habeas and dependency proceeding which had been invoked there. So the court would let slide the four day untimeliness it was only laid by four days, Jeff, no big deal, right? If you've got a got a couple of statutory hooks to get around a mere four day untimeliness, we'll go ahead and use it. This recent case Court of Appeal case goes quite a bit further than that, I think in an alarming way. That recent cases in re BP, it's out of the Fifth District Court of Appeals, it's not published. And in that case, the delay the untimeliness, was by four months, not four days, four months. Also the appellant didn't invoke the habeas procedures, but the still the court still allowed the untimely appeal. Again, based on the right to competent counsel, because the appellant had had told her attorney that she wanted to appeal and the the attorney just forgot or didn't get around to it. The court said well, we're just going to let it slide. So as I had said before in discussing inrae Our courts are going to continue citing the fact that the proposition that notices of appeal are jurisdictional and the courts are prohibited from considering untimely appeals. But I think with this if this trend of decisions continues, we wonder whether they're on the level when they keep calling notices of appeal jurisdictional.

Jeff Lewis  25:18  
Yeah, well, let me out. Was BP a dependency case?

Tim Kowal  25:22 
Yeah. Also a juvenile dependency case?

Jeff Lewis  25:23  
Yeah, I I'm not gonna hold my breath to see this expanded outside of the dependency case context, I suspect in our world of civil and sometimes Criminal Appeals, that the hard line on appellate jurisdiction is going to be described as jurisdictional. I agree with

Tim Kowal  25:41 
you, I just I'm just gonna have to hold back a guffaw whenever I hear that the appellate timelines are jurisdictional.

Jeff Lewis  25:51 
Okay, let's shift gears to something much more important than the termination of parental rights and whether or not there's jurisdiction to consider late appeals. And let's talk about this pressing issue that came up on Twitter between you, me and Fran Campbell. But whether or not your table of contents in an appellate brief should include a line for the table of contents. Tim, do you do you include that line?

Tim Kowal  26:15  
I saw you took some licks for that, Jeff. But it's, it's in my table of contents, too. I was just afraid to say so.

Jeff Lewis  26:23  
Yeah, I posted a copy of a recent brief where I added a table of contents. My table of contents.

Tim Kowal  26:30  
Yeah, Microsoft Word gives us see it gives it that heading tag that makes it appear in my table of contents. I used to sometimes take it out because it does look, it does look strange, I'll admit, but and I figured I can't remember if I had a clerk mentioned to me that it has to be in there. Or maybe I just I just extrapolated. They want everything else in there. I think they do say that the table of contents and table authorities as to be listed in the table of contents.

Jeff Lewis  26:58 
Yeah, you know, I have to say there's a very important analysis. I go through deciding issues like this, and it's what is my paralegal want. And my paralegal tells me, it is handy dandy for research attorneys and justices if they're deep in the brave, to be able to go to the PDF and see that it's bookmarked. And so if it's going to be bookmark, why not at least also include it in the table of contents? That's his justification. And I, I defer to him.

Tim Kowal  27:24 
Actually, that's that's an excellent reason for the Yeah, when you're deep in the brief, you can just quickly go to the bookmarks panel, take you right back up to the table of contents, so you can find whatever else you're looking for. Now, that's, that's not only valid, that's persuasive.

Jeff Lewis  27:37  
I imagine if you are the kind of person that uses defined styles and Microsoft Word, the style that allows things to be hyperlinked, or in the bookmarks, but somehow excluded for table of contents would be a headache to do.

Tim Kowal  27:52 
Yeah, yeah.

Jeff Lewis  27:54 
And then you do want to discuss something about headings.

Tim Kowal  27:58 
Yeah, I recently saw this I shared by Ross Guberman. The that the some of the more excellent legal writers in in crafting their headers, their headings in their briefs, particularly talking about the statement of facts when they're relating the the factual history of a case, they will draft those headers in the present tense. And I'd never, I'd never thought about it. But that's, that's how I do mine. I'm not sure why I do it. But I'm glad to have that confirmation that that's what excellent writers do.

Jeff Lewis  28:30  
Yeah, you probably picked up from reading an effective brief that did that. And it pulls you in a little more if it's current, if you're reading a novel, as opposed to 500 years ago, historical addition. It just makes it more compelling, I think.

Tim Kowal  28:43  
But in the actual body of the statement of facts. I use the past tense. Am I doing it right there?

Jeff Lewis  28:49 
Yeah, I thought, well, that's how I do it. So you know, you get one a win in the column of Jeff, if that matters. All right. All right. Well, listen, I think that wraps up this episode.

Tim Kowal  29:00 
All right, sounds good. If you have any of our listeners have suggestions for future episodes, please email us at info at Cal podcast.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  29:15 
All right, see you next time.

Anouncer  29:17  
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again