The California Appellate Law Podcast

“Stump Tim,” Do Sympathetic Parties Get Better Results? And Other Recent Cases

May 03, 2022 Tim Kowal & Jeff Lewis Season 1 Episode 31
“Stump Tim,” Do Sympathetic Parties Get Better Results? And Other Recent Cases
The California Appellate Law Podcast
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The California Appellate Law Podcast
“Stump Tim,” Do Sympathetic Parties Get Better Results? And Other Recent Cases
May 03, 2022 Season 1 Episode 31
Tim Kowal & Jeff Lewis

After Jeff quizzes Tim on a bit of appellate esoterica about the automatic 15-day default extension for appellate briefs, the co-hosts discuss whether appellate justices modulate their approaches to sympathetic cases. The conversation also covers recent cases involving:

  • Defective notices of appeal.
  • Can an action be dismissed pending appeal? A surprising recent case answered “No.”
  • Related: Another case that was not stayed mooted the appeal.
  • Nationwide injunctions.
  • DA sues attorneys for alleged Unruh Act abuse.
  • You’ve heard of SLAPP suits, but what about a SMACC suit?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

Show Notes Transcript

After Jeff quizzes Tim on a bit of appellate esoterica about the automatic 15-day default extension for appellate briefs, the co-hosts discuss whether appellate justices modulate their approaches to sympathetic cases. The conversation also covers recent cases involving:

  • Defective notices of appeal.
  • Can an action be dismissed pending appeal? A surprising recent case answered “No.”
  • Related: Another case that was not stayed mooted the appeal.
  • Nationwide injunctions.
  • DA sues attorneys for alleged Unruh Act abuse.
  • You’ve heard of SLAPP suits, but what about a SMACC suit?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

Tim Kowal  0:02  
But the court is going to be a whole over the place on a jurisdictional issue. How long can it maintain line that it's a jurisdictional issue? It's all jurisdictional if we're gonna publish the decision.

Announcer  0:12 
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 Cole and Jeff Lewis. Welcome, everyone. I

Tim Kowal  0:26 
am Jeff Lewis. And I'm Tim colwall California Department of podcasting license flagged for review. The California appellate law podcast as a resource for trial and appellate attorneys. Jeff and I are appellate specialists. But both our practices are split about even between trial courts and appellate courts. So in each episode, we try to bring our audience of legal practitioners news that they can use in their practice.

Jeff Lewis  0:52  
Welcome to Episode 31 of the podcast.

Tim Kowal  0:55 
So we don't have a guest for for you today. But Jeff did have an idea where he came across very interesting appellate conundrum. And he thought he would try to stump Tim, whether he could come up with the answer or not. So you want to set it up, Jeff, and lay it on me and see if see if I can come through with shining colors or whether I fall on my face?

Jeff Lewis  1:17 
Yeah, sure. Now, this is actually came out of a discussion I was having in my office with my staff, and none of us knew the answer. So we've got we've outsourced Tim, in a new segment called stump Tim, where I asked him a vexing procedural question. Watch him stumble around for the answer. So here this in every appeal, if the opening respondents brief is not timely filed, the clerk will issue a 15 day default notice providing additional 15 day free extension to get a keep on file. That's a rule everyone's familiar with. And the rule only applies to opening and respondents brief not replies. Everybody pretty much knows that. Here's the twist. When you have an appeal and across appeal, you've got four briefs, not three, and you have combined briefs. She'll have an appellant opening brief, and then you'll have the respondents response to that and the opening combined with the opening process of deal, the grief. And the question that my staff and I were wondering was, will be appellant get the benefit of a second 15 day notice for the third brief, the combined appellants reply and cross respondents break. If that party has already received a 115 day notice for the opening brief, will they get the benefit of a second 15 day notice for the third brief?

Tim Kowal  2:34 
Okay, so you have a combined scheduling or combined combined briefing? Do you have a combined scheduling order? In my experience? Usually when you have combined briefing, you get a get a scheduling order.

Jeff Lewis  2:47 
Yeah, usually it makes sense by stipulation of parties, you present it to the clerk, the clerk says, okay, for briefs, and here's where they're going to be filed.

Tim Kowal  2:53 
Yeah, but it doesn't say I kind of think of it normally, the scheduling order doesn't make reference to whether you get the 15 day default extensions on this one. So is it the question is, is it more akin to a respondents brief on which you do get the 15 days? Or is it more akin to a reply brief for which you do not get the 15 days? Because this is a combined respondents brief and a reply brief? I would say that you get the 15 days, but gosh, I would not want to risk it.

Jeff Lewis  3:32 
would your answer be the same? If you've got a first 15 day extension on the opening brief, and then when the third brief came due, you're gonna be expecting a second 15 day extension?

Tim Kowal  3:42 
I don't think it doesn't matter to me whether you got the whether you took advantage of the 15 days on the opening brief. And I don't think courts look at well, we would give it to you, but you already took 15 days for your first brief.

Jeff Lewis  3:55 
All right, that's your final answer.

Tim Kowal  3:57 
So to give you an answer, I thought I just stumbled around. If you did, I say I say you do get the extension. But my confidence level is only like 65%.

Jeff Lewis  4:10 
Your gut instinct is right, that you should get the extension. And your caution is also right. In terms of the advice I gave to my staff about not relying on that the answer is to be found in rule 8.220 Subdivision B, which refers to just combined briefs. And 8.220 B says when you're finally a combined brief, you get the benefit of a 15 day extension doesn't mention anything about getting a second 15 day extension or default notice. I think more or less you're correct.

Tim Kowal  4:42 
Interesting. Interesting. So it just mentioned a combined brief. Yeah. All right. Yeah. Take that the mean any combined brief.

Jeff Lewis  4:50 
Yeah. So the first person who writes the fourth brief in the series, which is a pure reply brief, that'd be cross appellants reply brief would not get the benefit of the 15 days.

Tim Kowal  5:02 
Yeah, yeah. So you could see, you could see up to 45 days in in three different default extensions for the combined opening brief combined second brief combined third brief, before you get to the final fourth brief, with no extension.

Jeff Lewis  5:17 
All right, I'm going to call that segment a rousing success. And I'm gonna encourage all of our listeners to email me vaccine questions that they wished me to torture you with.

Tim Kowal  5:25 
Yeah, I did feel like I was stumbling around quite a bit. All right. So with that, with that segment completed, I had a couple of cases, recent cases, I wanted to talk about Jeff, you know, mind, a first couple of cases involved defective notices of appeal. And this is a kind of a perennial topic, I like to like to address just because of different ways that that courts take them up. It's a jurisdictional issue. It's supposed to be one of those issues that you don't see a lot of variation. There's just one rule. But I see more than one one rule sometimes. And so here's, here's a recent case, Ramirez versus Oxford properties that have the fourth district Division Two is from April 2022. And this is my example of how I would expect a court to handle a defective notice of appeal. So in this case, there were two motions to vacate a dismissal of a complaint. The first motion had suffered from an excusable technical mistake, but the court would not excuse the mistake and and said, No, you got to file a second motion to vacate the dismissal. And the plaintiff filed the do over motion to vacate. But then the court said nope, sorry. It's untimely. So then Ramirez, the plaintiff only appealed the second denial, but really the issue was, was about should have, Ramirez should have filed the notice of appeal from the First Order denying the first motion, the Court of Appeal said we would really like to reach the merits. But sorry, we can't because the its untimely. Now you cannot file a motion again, cannot file the appeal from the from the first motion to vacate. So I agree with the analysis. But here's here's another case that illustrates that. Not every case takes this kind of hardline view on notices of appeal. So this was a second district case from a few years ago. bekkering versus Shell Oil Company 2014 case, the Court of Appeal got around a jurisdictional problem by just ordering ordering the trial court to enter a Nunc pro Tunc order. So what happened is, is the appellant in bekkering filed a premature appeal of an order granting a summary judgment. But the court found that that's no problem because the court could simply order the trial court to enter a judgment Nunc pro Tunc the same date as a summary judgment order. So without and then without awaiting the actual Nunc pro Tunc judgment, the court went on to construe the notice of appeal as referencing the as yet non existent judgment. So what what this reminded me of when reading it was that scene in Bill and Ted's Excellent Adventure, when they're stuck in jail, and they're thinking, how do we get out of this mess? And Bill or Ted, one of them says, I know, when we get back to our time traveling phone booth, we'll just steal your dad's keys and put them where should we put them about right here in the corner? Oh, yeah, look, here they are. And then they got out of jail that way. So some someone decided, well, if it's good enough for Bill and Ted, it's good enough to save a premature appeal. We can just just use Nunc pro Tunc orders to change the dates of the orders appealed from

Jeff Lewis  8:26 
well, hey, you know, in in this bekkering case involved, somebody was sick or dying from mesothelioma, it was asbestos exposure case, or the spouse of somebody who was exposed to asbestos and person was given priority on appeal for speedy appeal. And it was against one of the most unsympathetic defendants ever Shell Oil. Ultimately, the result was affirmed. I see the court here just wanted to make sure the case was resolved before appellate passed away before he got his or her got her day in court. And I also know not to open another can of worms. But this might be why bekkering And Ramirez were both unpublished to stream kind of results. This is I guess, an argument in favor of not publishing decisions on these important jurisdictional issues when the courts are going to be all over the place.

Tim Kowal  9:17 
Well, if the court is going to be all over the place on a jurisdictional issue, how long can it maintain that line? That it's a jurisdictional issue? It's only jurisdictional if we're gonna publish the decision?

Jeff Lewis  9:27 
Yeah, it is. It's hard to see where that line is. If you're

Tim Kowal  9:31 
so are you suggesting that if the appellant had not been so sympathetic, that maybe a different result would have obtained? Yes, that suggests that the court is a respecter of persons. So the court so the justice is reading the the legal discussion and decides Oh, well, based on this legal discussion, I guess we've got to dismiss this appeal. And then one of the other justices on the panel says, Oh, wait, Bob, did you read the facts? This is a really sympathetic appellate. Oh, I didn't realize that will happen. To find a way to save this appeal,

Jeff Lewis  10:02 
I'm going to suggest that bekkering in which it wasn't a fatal mistake in the sense that no judgment had ever been entered. And they I suppose, presumably they could have had the case remanded judgment been entered, and then do a Notice of Appeal, telling someone who's super sick, go do two or three more years of this Kabuki dance, and then we'll talk to you in three years, I'm going to suggest that appellate justices are human. And we're aware that was a harsh result.

Tim Kowal  10:29 
Yeah. So you're saying that the same result would have obtained either way? It's just they wanted to cut a few years out of the process?

Jeff Lewis  10:38 
Yeah, yeah. Just say it wasn't entirely person oriented in terms of bias, because ultimately affirmed, summary judgment was granted,

Tim Kowal  10:50 
right? Yeah. Yeah. All right. Well, let's get to the next one. You got my hackles up already. But I thought this this next case was also surprising. The question is, can you dismiss your lawsuit while it's on appeal? I thought the answer would be yes. But the answer is no. Under curtain maritime Corp versus Pacific dredge and construction, it's a published decision out of the fourth district. In that case, the plaintiff had successfully opposed the defendants anti slap motion, and then the defendant appealed the order denying the motion, the plaintiff decided to dismiss its claims. But the Court of Appeal held it could not dismiss until it was done with the appeal, the court reason that dismissing the case would have rendered the appeal moot. And because the appellate stay is meant to prevent that, the stay means you can't dismiss pending the appeal. Now, this was surprising it was the right result, of course, because obviously, if a if a if a defendant succeeds on an anti slap motion, that defendant is entitled to fees, and so the court was concerned Well, if the case is dismissed, doesn't that cut off the defendants right to slap fees, and the defendant is entitled to slap fees. So we can't let the case be dismissed. But slap fees are a collateral matter they can, that motion can be filed and heard and slap fees orders, ordered whether or not the case is dismissed. So I thought it was strange that the court thought it had to prevent the dismissal at all costs. And Professor Shawn Martin says on his blog that the holding to HIMS, quote seems fairly revolutionary. And Professor Martin links to quote tons of cases that, in fact got dismissed while the matter was on appeal. So he thinks that this is a this is a outlier, holding, but it is a published holding. And so now we have at least one published Court of Appeal opinion that says that a plaintiff may not dismiss the case when the appeal is pending. And as listeners will know, whenever there's a conflict between published Court of Appeal opinions, no matter how lopsided trial courts may exercise discretion under auto equity sales, Inc, versus Superior Court, that's a Supreme Court case, to choose between either side of such a conflict. Well, and

Jeff Lewis  13:08 
in here, it'd be the clerk exercising discretion, because nine times out of 10 It's a clerk, not a court that is deciding whether or not to accept a request for dismissal and enter it.

Tim Kowal  13:17 
Yeah, yeah, that's, that's true. I don't know how you'd be able to would are litigants able to communicate that to the clerk in some way?

Jeff Lewis  13:26 
You have unfettered discretion here.

Tim Kowal  13:28 
Yeah. What about you, Jeff, do you that opinion strike you as strange? Do you agree with that rule that that rule express that the appellate stay prevents a plaintiff from dismissing a complaint pending the appeal of an anti slap order?

Jeff Lewis  13:46 
Now, in this particular case, it seemed like the this ruling regarding the trial court's ability to entertain a dismissal pending appeal was not necessary to reach the result, given existing law that these on slabs are not really part of the main issue under appeal. And so yeah, I don't understand why the court went this far didn't have to, and I don't know, but I suspect one party or an amicus group might seek review the California Supreme Court because this seems to muddy up the waters quite a

Tim Kowal  14:18 
bit. Yeah, I think so too. I did have another. Another opinion on this case, kind of, on the other hand point of view that I liked that the court took the appellate stay seriously. Ordinarily, it's the appellants responsibility to take action before the trial court does something that would tend to render the appeal mood, such as seeking filing a petition for supersedeas in the Court of Appeal, but the curtain maritime case is the first case I've seen that rendered a trial court action void for what it deemed to be violating the appellate stay and without the appellant having to do anything to get the court to take that step. Yeah. So here's and then here's my final case I wanted to talk about that kind of juxtaposes with the curtain maritime case. That is art works studio and classroom LLC versus Leonean. It's a another second district case, non published case it was from April of 2022. This is another appeal of an anti slap order. And the plaintiff, there was a commercial tenant, the tenant claimed that there was at least minimal merit for its interpretation of some estoppel certificates that the landlord had had prepared. And the tenant alleged that the estoppel certificates to the buyer of this building had misstated the terms of the tenants lease. But while the slap appeal was pending, the trial court went ahead with the landlord's UD action and entered an eviction judgment in favor of the landlord. And then the judgment in that UD judgment. It rejected the tenants interpretation of those estoppel certificates, which were in turn at the center of the pending slap appeal. So you can guess what the landlord did next, had filed a motion to dismiss the appeal in that in that slap appealed, based on res judicata. It said that, well, this issue has already been decided in the UD judgment, so no need to go forward with this anti slap appeal. And the Court of Appeal bought it it said, because these issues were fully litigated in the unlawful detainer action, appellant is barred from RE litigating these issues. The first thing that struck me is that it didn't seem like quite the same issue whether the tenants interpretation was correct, which was the ultimate issue in the UD action was different from whether the whether the tenants interpretation had minimal merit, which is the touchstone for prong two of the anti slap analysis. But beyond that, if the if the curtain maritime holding is correct, the holding we just discussed that said that that the appeal and what action should stay related actions then shouldn't the appellate stay have stayed the UD case from going forward? And doesn't hurt and maritime make the UD judgment void? Because it would tend to moot the appeal, which is what happened here.

Jeff Lewis  17:15 
Let me ask you, though, wouldn't that stabby tenant or savvy tenants lawyer and we know some of those wouldn't a savvy tenants lawyer use this process to delay proceedings by arguing? Oh, the pendency of the appeal. We can't proceed on the UD until this appeals resolved. UD actions are supposed to be summary they're supposed to happen lightning fast and appeals are not.

Tim Kowal  17:39 
Yeah. On the other hand, wouldn't savvy landlords use the UD process to short circuit what are otherwise legitimate complex contract disputes and say, Well, you know, let's just flush all of these contractual issues under the bridge and just adjudicate the summary proceeding under a UD action, and then that renders the entire upstairs lawsuit as they call it. The unlimited civil lawsuit moot. Yeah, yeah. It's, it could be sharp practices on on either side. I think in this in this case, you know, summary, the summary, Proceedings of UD action, this is not not my area, but I thought that was typically more for maybe a presidential. That's what I thought, but maybe I'm not right. I, you know, I don't do

Jeff Lewis  18:23 
a lot of this. But in terms of possession, I think they should possession is summary. Whether it's residential or commercial, but I don't know. Maybe we need Fran back on here.

Tim Kowal  18:30 
Yeah. No, let's put up put on an APB to Fran to address these vexing issues. Alright, so those are the cases that I had to address today.

Jeff Lewis  18:40 
All right. And then going down to our news and tidbits there was big news in terms of the CDC mask mandate, if you want to talk about that,

Tim Kowal  18:48 
Tim. Yeah, you sent me this. I guess it's it's all over the news this week. We're recording this on April 19 2022. I think this just yesterday, CDC mask mandate for travelers has been struck down by Judge Katherine Kimball Mozelle of the United States District Court out of Florida. The this was the Biden administration's mask mandates mandate for airplanes and other public transport methods. Judge Mozelle said the mandate exceeded the statutory authority of the US Centers for Disease Control and Prevention because its implementation violated administrative law. So this was a question that you and I have been kind of talking about back and forth. This is one judge Jeff, one judge out of 90 Something districts across the country 12 circuits should one judge have the authority to enjoin the entire federal government nationwide? Yeah,

Jeff Lewis  19:41 
yeah. It's a lot of power. And and think about this way. Imagine in a in a contested national presidential election, having a judge let's say from California, versus a judge from Florida, decided an issue of whether or not certain, you know, votes were validly cast in a national election. I mean, crazy. This amount of power. Yeah.

Tim Kowal  20:00 
Yeah, I mean, I understand the reason for it. But here's, I saw this just recently come across the wires that David lat in his blog talked about Chief Judge Jeffrey Sutton of the Sixth Circuit just sounded off about these nationwide injunctions. And here's what he's what he said. Well, Chief Judge Sutton he recently spoke out about so called nationwide or universal injunctions. This is David lats characterization here, in which a single federal judge issues an order purporting to block the federal government from enforcing a law or regulation anywhere against anyone. Judge Sutton complain that these injury conjunctions, quote, have not been good for the rule of law, and quote, the sooner they are confined to discrete settings or eliminated root and branch the better and quote, and in judge Sutton's concurring opinion in Arizona versus Biden in which the Sixth Circuit stayed a district court's injunction blocking a Department of Homeland Security Policy, setting enforcement policies when making apprehensions and removals, Chief Judge Sutton wrote as follows. Call them what you will nationwide injunctions or universal remedies, they seem to take the judicial power beyond its traditionally understood uses, permitting district courts to order the government to act or refrain from acting toward non parties in the case. Such injunctions create practical problems to the effect of them is to prevent the national government from enforcing a rule or executive order without potentially having to prevail in all 94 district courts and all 12 regional courts of appeals. They incentivize foreign forum shopping. They short circuit the decision making benefits of having different courts weigh in on vexing questions of law, and allowing the best ideas to percolate to the top. They lead to rushes to judgment. And all of this loads more and more carriage on the emergency dockets of the federal courts, unnecessary feature of any hierarchical court system, but one design for occasional not incessant demands for relief and quote. What are your thoughts on Judge Sutton's criticisms of nationwide injunctions? Jeff?

Jeff Lewis  22:11 
Yeah, I know it's it's concerning and especially people racing to file lawsuits first to be first in a forum or to their liking. And I wonder if you have one judge determining a rule or holding our entire Nathan, this chill the development of circuits splits such that SCOTUS is unable or delayed and picking an issue up to SCOTUS, because one order one judge has been issued? It's interesting issue.

Tim Kowal  22:39 
Yeah, yeah. I think that I think Judge Sutton would agree with you there. And then just to circle back to bring this into the subject of mootness that we were talking about earlier. Maybe these nationwide injunctions are necessary, at least in some occasions to prevent a case from becoming moot. And besides, plaintiffs should not have to wait years and years and years until SCOTUS decides it's satisfied that the issues have been sufficiently developed in the various circuit courts before taking up an issue. So maybe, maybe if this is really a problem, all these nationwide injunctions, you know, it would be I take Chief Judge Sutton's point that it's nice to have the issues fully developed in various different courts, you have a whole buffet of different opinions on intakes on an issue to choose from. But some issues you just don't have that luxury to wait, maybe the maybe the Supreme Court should consider taking some of these issues up on an expedited basis, and maybe a nationwide injunction is a way to get the Supreme Court's attention.

Jeff Lewis  23:42 
Yeah, yeah. I'm glad I'm a California lawyer with primary practice and state courts. So I'm going to deal with these additional complexities.

Tim Kowal  23:48 
Yeah. All right, Jeff, there was there's one other case that had come up. But speaking of injunctions, it was concerning the UNRWA act here in California. Much tell our listeners just a little bit about that.

Jeff Lewis  24:02 
Alright, look, I've been practicing 26 years. And every few years, a new scam that pops up where lawyers who don't have real clients are real claims, develop a whole practice area, or finally, Phantom claims based on phantom clients and making a tremendous amount of money. And these lawsuits are usually filed in volume without a real client, but actually a lawyer calling the shots. So in 2003, there was the Trevor Law Group that abused California's unfair competition law. This is the professions code section 17 200, targeting small businesses with Shakedown lawsuits, it's settled for dollars and there'll be 1000s of these lawsuits that never went to trial. To California ag filed a lawsuit against the trouble Law Group shut that down. More recently, there was the prenda Law Group, which is a group of attorneys who filed Shakedown lawsuits against people who downloaded porn movies off the internet that ended with a A 2013 Federal Court ruling by lawyers are engaged in criminal racketeering, in a very entertaining opinion written with Star Trek themes and references by Judge Otis. Right. Local federal judge. I'll put a link to that opinion in our show notes. But in the same vein as the Tribal Law Group in the prenda Law Group this month, we had Los Angeles and San Francisco TAS office team up to file a lawsuit against Potter, Andy, a law firm for filing meritless lawsuits to enforce the ADEA. And the problem with Potter Handys lawsuits according to the DA is that Palmer Handys, a lawyer represents parties that have likely never actually even attempted to visit this visit the business that is being sued for suppose an ABA violation. And that's a requirement for ADA lawsuits to move forward to give a plaintiff standing. So for example, according to this lawsuit filed by the LA and San Francisco TAS office, one of the clients have said they visited a business that was actually closed during COVID. So there was not possible to establish standing. And look, it's interesting lawsuit when you read it, you see examples of really, really glaring and I'm all for lawsuits like this, but meaning that the velocity to crack down on Potter handy, but I do sometimes get nervous whenever lawyers are sued for filing lawsuits, there is a chilling effect there to think well, if I'm filing what I think is a meritorious lawsuit today will be LA and San Francisco DHS office decide tomorrow. It's not meritorious. And I also wonder whether Palmer handy might respond to this combined la San Francisco lawsuit with an anti slap motion, arguing that its conduct is both protected under Section 425 116, which is the anti slap law and privilege under Civil Code section 47. What do you think about this Ponor? Handy lawsuit?

Tim Kowal  26:47 
Yeah, I thought that, you know, I've, I've seen these types of lawsuits, my entire practice here and there. And normally they are they don't seem to have risen to quite the same scale that the potter Handi venture has attempted here. And there's they've got a whole team of professional plaintiffs who each visited allegedly, hundreds and hundreds of establishments. That was the other you mentioned one example where the establishment was closed. So obviously, that was that was a false allegation. But they but the DA also raised kind of a statistical analysis that come on, there's no way that that these these professional plaintiffs visited this number of establishments in the shortest time period. So I yeah, I I'm happy to see a crack down on this. This is you know, they're the law is a profession. It's not meant to be a business venture. And and I think maybe this is an example where we're the DEA is looking to show that there's a line somewhere between running a profession and running a business and the potter handy group maybe has crossed the line. I think that's that's kind of the theme of the DEA lawsuit here.

Jeff Lewis  27:59 
And hey, one more case I want to talk about before we go is you've obviously heard of the abbreviation slapped strategic lawsuit against public participation. That's something we talk about all the time, the anti slap, which is California's law to deter slaps frivolous lawsuits, I noticed a new Twitter term on Twitter that I'm going to steal shamelessly, and I'm gonna introduce on this podcast, I didn't come up with it. I read it on Twitter, it's called smack, SM a CC, a strategic motion against credible claims. I don't know who came up with it. But it's a great term. A smack occurs when an anti slap motion and related discovery stays and appeals is used to slow down the progress of a legitimate claim, and bog that case down in procedure and process so that it can't get anywhere. And this past week, there's an example of a smack in Division six of the second district, the Second District Court of Appeal in Los Angeles. It's the clarity consulting case, I'll link to this in our show notes. This was a published decision case represents a stark warning for lawyers who misuse the anti flat motion on context. The opinions starts with this. I would like to be the appellate and receives an opinion that starts with this. This appeal illustrates an attorney's misuse of the anti slap statute. However, however efficacious the anti slap procedure may be in the right case, it could be badly abused in the wrong one, resulting in substantial costs and prejudicial delay. This is the wrong case. In the the clarity consulting court went on to not only affirm $3,000 and sanctions that were issued below, but added on another $20,000 in sanctions for filing a frivolous appeal and ends with a warning about trial lawyers who handle their own appeals to required reading I think for anyone who's considering filing a slap or filing an appeal of a slap order to make sure you really done your homework and you're not filing a frivolous appeal for improper reasons.

Tim Kowal  29:57 
Yeah, it's hard enough to get to get it attorneys fees up on an unsuccessful slap movement. So that's what happened here and then but the defendant not leaving not leaving well enough alone went forward and got hit with $20,000. More. That's a That's a tough pill to swallow swallow.

Jeff Lewis  30:15 
I'd like to think that appellate specialist brought in as CO counsel would slow the roll there and prevent that appeal from being filed.

Tim Kowal  30:22  
A little bit of objectivity is always a good thing.

Jeff Lewis  30:26 
All right, well, hey, I know this was a short one, but I think that wraps up this episode.

Tim Kowal  30:30  
If you 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  30:42 
All right, see you next time.

Announcer  30:44  
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again