Can I Appeal This? Three Cases with Surprising Answers

Jeff Lewis  0:03 
No lawyer ever got sued for malpractice for filing too many notices of appeal.

Announcer  0:07  
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.

Jeff Lewis  0:21  
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:23 
And I'm Tim co off. On this podcast. We tried to provide a resource for trial attorneys and appellate attorney, both Jeff and I are appellate specialists. We split our practices pretty evenly between trial courts and appellate court, and in each episode, we try to bring our audience some legal tips, news or insights that they can use in their practice.

Jeff Lewis  0:41 
And welcome to episode 42 of the podcast and a quick announcement. This podcast is sponsored by case text case Texas, a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019. And I highly endorse this service listeners of the podcast will receive a 25% lifetime discount available to them. If they sign up at case Tech's dot com slash scalp. That's case text.com/ca LP.

Tim Kowal  1:10 
All right, Jeff. So let's say we catch up on some recent cases. I found some cases recently that caught my eye covering topics of appealability. So we're going to discuss whether an order granting summary judgment might be appealable, despite the usual rule that orders granting summary judgment are not appealable. We'll also discuss the question does a minute order have to be signed to be appealable? In recent case confirms no. And then we'll cover whether a vexatious litigant may appeal an order denying a pre filing request to file suit. And Appellate Court recently said no. Okay, so the first case will cover whether summary judgment orders are appealable. Reid versus Aviva USA Corp held that the summary judgment order granting summary judgment was appealable. That case was last month, June 2022. So, Jeff, the normal rule, and correct me if I'm wrong, is that orders granting summary judgment are not appealable. Is that your understanding?

Jeff Lewis  2:10 
Absolutely, without exception?

Tim Kowal  2:14 
Well, you'd be wrong on that last part. Why do you have to say that last part, Jeff, orders granting summary judgment are not appealable. It says so right? In Code of Civil Procedure section 437 C subdivision am one that if you want to get review of an order granting summary judgment or denying summary judgment, you can file a writ, but sorry, no direct review. And there are many cases that confirm that rule except the rule, it turns out is a lie as it proved in read versus Aviva USA Corp. The trial court they're granted defendants motion for summary judgment. For some reason, the trial court did not enter a formal judgment. So the plaintiff appealed from the order granting summary judgment. And when it got up to the Court of Appeal, the the Appellate Court acknowledged that in order granting summary judgment is not appealable, for the reasons that we just discussed, but the court reviewed the order on direct appeal. Anyway, here's the here's what the courts rationale was, quote, because the trial court's order granting summary judgment stated that reads claims against Aviva were quote dismissed with prejudice in their entirety. we construe the order as an appealable judgment because it showed a clear intent to finally dispose of Reid's complaint against respondents in quote,

Jeff Lewis  3:27 
hang on, are all orders granting summary judgment? Aren't all of them dismissals with prejudice?

Tim Kowal  3:35 
You know, if anybody has or has to be Yes, right. I've

Jeff Lewis  3:39 
never heard of an order granting summary judgment, not Jude occation. But judgment. That is, oh, yeah, without prejudice, go ahead and refile.

Tim Kowal  3:45  
All of them are only awaiting the formal order. But if you don't actually have to wait for the formal order, then why wouldn't this rationale apply to every order granting summary judgment? So sorry. So Jeff, I have some philosophical problems with this about, you know, the rule of law and jurisdictional rules should mean what they say and all that. But I can. I won't bore you with abstractions. I can think of at least two practical problems with treating this jurisdictional rule as discretionary as the Reed Reed Court did. First, the court has the trial court has a duty under Code of Civil Procedure section 664 to enter a judgment. So let's say it's been a few weeks after an order granting Summary Judgment, the plaintiff wants to appeal but he's waiting for the judgment to be entered as the as the statute requires, but it hasn't been entered. So maybe the the attorney says okay, well, I better file a motion under CCP 664 To have a judgment entered. But then by the time the trial court gets around to granting that motion, and the clerk enters the judgment, it's quite likely that 60 days is already elapsed from the entry of the order granting summary judgment. So litigants could be tricked into blowing their appellate deadlines. And even if the appellant files the notice of appeal of the order, granting summary judgment in time, what happens when that Trial Court finally does enter judgment. Does the appellant have to appeal from the judgment to are there two appealable orders here? And does the judgment extend the time to file the appeal? The normal rule is that you don't get any extensions of the time to file an appeal other than the extensions provided under Rule 8.108. So these are some practical problems that I have with the ruling. The second practical problem is if an order granting summary judgment is appealable, does that mean that the deadline to file a memorandum of costs and a motion for attorneys fees runs from that date, because we know that the the deadline to file a motion for attorneys fees is the same as the deadline to file the appeal? And if the order granting summary judgment is the appealable order, then it seems that the attorney trial attorneys are going to have to make a note on their calendars, that their motion for attorneys fees is going to have to be is triggered based on the entry of that order and not to sit around waiting for entry of a formal judgment. Hey, hang on, calm down. Tim,

Jeff Lewis  6:02 
is it true? There's a huge difference in what the Court of Appeal did here which says that this order is construed as an appealable judgment, as opposed to saying, cited or made summary judgment orders are themselves appealable when you are construing, something as appealable that's something what kinda like saying, Hey, we're gonna treat this almost like a writ petition. And we're gonna forgive a mistake. But that's very different than saying, hey, every lawyer in California, get ready to read Calendar or learn how to read Calendar appellate deadlines, because you're now going to have double the deadlines in every MSJ case.

Tim Kowal  6:35 
What are you saying that? Is this kind of like a like a Schrodinger is appealable judgment type of situation? It's, it's both appealable and non appealable, depending on whether appellate court later deems it to be appealable. Yeah, I think there's a there's a great line in a case, I can't remember the name of the case, but it says matters of appellate jurisdiction cannot be made into matters of appellate discretion. So it's a jurisdictional rule, or it's a discretionary rule. But you can't go around deeming things appealable. It either is appealable, or it's not appealable. That's my understanding anyway. I think what the Court of Appeals should have done here was to catch the problem when the appellant filed the Civil Case Information Statement. That's what the Civil Case Information Statement is for. It's why you're required to attach your appealable order to the Civil Case Information Statement. So the the clerk's and research attorneys can raise any red flags to appealability problems. And then once once they noted that problem, send it back to the plaintiff and say, go back, get a formal judgment. And we can either you can either do a new appeal, or we can deem the appeal to be taken from the formal judgment. Once it's entered, we can avoid all these problems, and we can take appealability with the seriousness that it deserves instead of deeming things to be appealable. Just for convenience sake,

Jeff Lewis  7:53  
I construe your comments on this case as well taken. Okay,

Tim Kowal  7:57  
next case about whether minute orders have to be signed to be appealable. This case is Liang vs. Shi, it's out of the fourth district Division Three down here, Santa Ana, also a June 2022 case. Now maybe I got the wrong idea into my head, Jeff, but I had always thought that a minute order did have to be signed to be appealable. But after reading this opinion, I've been disabused of that, of that notion, even though inlaying Vichy the opinion is unpublished, I think it's holding is correct that the unsigned minute order there was appealable. So Lange involved in action to enforce a marital settlement agreement, the trial court awarded the mother $100,000 and fees, but the court made the award in an unsigned minute order and then only later signed a formal order. So the father contended that the minute order was not the appealable order, because it was unsigned, that the father timely appealed from the from the later formal, signed order, but it was untimely if the unsigned minute order was the appealable order. That's it's actually easy to find lots of cases that backup the father's position, that unsigned minute order is not appealable. And I've I've seen these authorities myself, that's that's why I sort of have the idea in my head that an amended order has to be signed. So I was surprised when I first read the opinion. And in fact, the appellants attorney was a certified appellate specialist. So So even the best of us. So So Jeff, I'm in good company, that I'm not the only person out there who had that idea. But I went back and looked at the authorities that it turns out all of the authorities that say that a minute order has to be signed to be appealable. We're minute orders of dismissal under Code of Civil Procedure, section 581 D, and minute or minute orders or any order of dismissal of a case does have to be signed under that statute. But that rule doesn't necessarily apply to other types of minute orders. So if you're if you're like me, then and you think that a minute order has to be signed to be appealable be disabused of that notion. ended orders very well may be appealable if they're final.

Jeff Lewis  10:03 
Okay, well, let me ask you this, Tim, not exactly the facts of this case, if you get a minute order in a case and the minute order states on its face, hey, attorneys prepare a formula order for the court signature, and it says that the minute order and you're approaching day 59, they 60 After that minute order, and no formal order signed by the prepared by lawyers or signed by the court has been forthcoming. Do you file a notice of appeal on that minute order just to be safe?

Tim Kowal  10:31 
Hey, you know, Jeff, we didn't have a stump Tim slated for today. But but I'll answer the question that those words are usually a dead giveaway that the that the order is not final because something further is contemplated, but it still would make me nervous, just like it still makes me nervous. If there's there's an order that's final, it's it's served. Maybe it only lacks the file stamp, even though the rules say that no one has to be filed stamped in order to trigger the appellate deadlines. I don't know if I want to hang hang my my face and possible malpractice on a single item like a file stamp or just language stating that everything else is final, except the court contemplates maybe issuing a more formal order later on. I think I would still I would, I would make sure that that that formal order gets taken care of within my appellate deadline. I think that's the first thing I do. But if, if the client comes to me on day 59, I'd say take the appeal, what would you do?

Jeff Lewis  11:25 
Absolutely. Nobody ever got sued for malpractice for filing too many notices of appeal. And yeah, sometimes there's there's things outside of your control when you know you're waiting on the other side of the court to sign or formalize or finalize an order. So yeah, and by the way, you can clean it up later, when you have two or three notices of appeal. You can either dismiss them or consolidate them or whatever deal with it later, but better to be safe than sorry.

Tim Kowal  11:50 
Agreed. All right. The third case that I wanted to discuss this is about the vexatious litigant. This is marriage of deal. This is out of the first district third division also June of 2022. Another non published opinion of the vexatious litigant. There's not a very sympathetic figure to next husband many years after the divorce proceedings were done. He's still filing appeals and lawsuits. He's got 12 appeals at the point. This this case starts and seven repetitions. They've all been the meritless. One in some of his appeals, the court has said that the ex husband has made quote, implicit threats against various members of the California judiciary in the state bar. And the ex husband observes, the court observes the ex husband now quote, stands alone on the silent battleground, rattling his saber, so already

Jeff Lewis  12:42  
wouldn't be a good idea to represent yourself in general and especially in a emotional divorce case. Fantastic idea. Go ahead,

Tim Kowal  12:49  
right. So you can you can already see the trajectory of how this is going to turn out. He's he. He's been declared a vexatious litigant. Once a court has declared someone to be vexatious, under Code of Civil Procedure sections 391 and 390 1.7. You have to file a pre filing request to file your lawsuit with the providing presiding judge. So the ex husband here did so Request permission and predictably it was denied. So the ex husband going for appeal number 13 files his 13th appeal from the denial. The court predictably finds that the the appeal is frivolous, but goes the extra step to say he didn't even have the right to appeal because the pre filing denial under Section 391 is not an appealable order, and a pre filing order denying a vexatious litigants request to file new litigation is not among the appealable orders listed in in the Code of Civil Procedure section nine oh 4.1 the appealability statute. And it's not a post judgment order, the court holds because the order does not involve issues different from the underlying judgment, and it doesn't involve enforcement or stay issues. The court also holds contrary to another published decision that the pre filing order is not an injunction or an order denying a motion to dissolve an injunction. Those are normally appealable orders. And another case, Luckett versus pianos a 2008 opinion had held that such orders such denials of a pre filing request are appealable as denials of an order requesting to dissolve an injunction but the court split from that authority here not it didn't mention that authority, but just just held it the vexatious litigant only has one crack at that requesting leave to file a new lawsuit. And denials of such requests are not appealable I was surprised by this. I learned of it by reading Professor Shawn Martin's blog, and he was also surprised by it he said, quote, We don't generally let a single judge decide things once and for all without any right to review whatsoever. And I I tend to agree with that. I think that his case was met was meritless. I would have no qualms with the with the court's conclusion that it was a frivolous appeal, but I'm confused why it went the extra step to find that he had no right to appeal to begin with.

Jeff Lewis  15:10 
Well, let me ask you this, and maybe you haven't litigated against enough vexatious litigants to appreciate the need for some finality here. The court basically said here that is one and only option was a writ and they've denied the writ. Right. Right, right. There are lots of areas of law like Liz pendants, orders, expunging Liz pendants and orders on peremptory challenges and orders on disqualifying counsel and Public Records Act things that are only reviewable by read. I gotta tell you, I fall in my camp of this particular type of order dealing with vexatious litigants is properly circumscribed, and the amount of review and due process given to folks like this who really abused the legal system,

Tim Kowal  15:54 
so you're okay with with I'm only getting written review? Yeah, I'm saying, yeah. Okay. What about what oh, when someone files, an anti slap motion, and it's denied? Maybe, maybe you get one crack at that, and and review should be by read only.

Jeff Lewis  16:09 
Tim, anti slap work is the most sacred work than any lawyer can do. In the practice of law. It stands in that category on its own.

Tim Kowal  16:17  
That's right. So sometimes I forget that. Okay. The next case, Sylvester versus Nick Parco. The reason this caught my eye, Jeff, is because I saw that the Court reversed a jury verdict based on the trial judges improper exclusion of evidence. And well, I'll include a link to the case summary that I wrote up on this case, but the part I really wanted to talk with you about was this, it wasn't discussed at length in the opinion, but what happened is that by the time the the plaintiff and defendant got up to preparing the jury verdict forms, normally, as you know, the plaintiff usually wants a general verdict form. This is a bleed. This was yeah, this was a medical malpractice action. So the plaintiff wanted a general verdict form he, he just wants the the jury to come back and say, yes, there's liability and then get right to filling in the big fat dollar amount. The defendant wants more opportunities to, you know, to trip up the jury to get the jury to answer a lot of interrogatory ease and explain exactly how there was liability, how there was causation, whether there was there was damages and everything else. So what the what the parties did here is they came to a compromise, and the compromise was that was on judgment enforcement. And they agreed that if plaintiff got a jury verdict, that that that enforcement of the of the judgment would be only against insurance, and would not would not be enforceable beyond that. I thought that was interesting. Maybe I maybe that this happens more commonly. I've just never heard of it. What about you, Jeff, have you heard this before?

Jeff Lewis  17:50  
I've never I've never seen anything like this. I'd say I'm not suggesting anything improper happened here. But I wonder if this was insurance Council, and if insurance Council could even ethically propose or enter into such an agreement? Yeah, super interesting raised a lot of issues in my in my head.

Tim Kowal  18:05  
Do you Do you know, if if such an agreement would be enforceable? Would it be practicable? I mean, once you get a judgment, it just seems like, you know, you have the full bevy of the enforcement of judgments law at your disposal, you will be able to go in and get writs of execution and judgment debtor examinations. The clerk is not going to know about this order, I guess. I guess it's just on the honor system.

Jeff Lewis  18:25 
I think we've got in the next few weeks, perhaps someone who's a guest, who does judgment collection, I'd be interested to ask that guest that question. Oh, there are other ways by contract to carve out or limit judgment enforcement methods.

Tim Kowal  18:40 
Yeah. Good tip. Let's, let's put a bookmark on this one and come back to it. All right, Jeff, I think you had a few cases you wanted to cover?

Jeff Lewis  18:46 
Yeah, there was a Ninth Circuit decision that came down and Brack V Newsom, you know, full discovery, my firm filed an amicus brief below on this case, but involved a group of parents who sued the governor over school closures. And the district court in California dismissed the case sewist Vontae. On summary judgment went up to the ninth circuit, there was a decision on the merits in the Ninth Circuit, and then there was unbond review. And the whole case was dismissed as moot on the on the issue of schools are open now. And this was the first worldwide pandemic that the school system had to deal with in many years, and basically gave Newsom a pass saying it was the first time he gets a mulligan on this one. It was interesting, because the plaintiffs in that case, wanted to get an actual adjudication of well, what about the next time? What about, you know, what is going to be the standard for opening and closing schools next time? And then next, I could said, Now, it's moot. It was an interesting disposition. And then the second case I want to talk about and this is a super interesting one, it has to do with evasive discovery responses. Now, Tim, you're familiar with the rule of Union Bank, the Superior Court in summary judgment motions that factually devoid discovery responses can be used to satisfied defendants initial burden of proof on an MSJ. Right, right. And there's a related rule in D'Amico versus Board of Medical Examiners that holds a party opposing summary judgment can't create a travel issue of fact, by using a declaration that's at odds or contradicts admissions made in a deposition. Once a deposition is taken, the client is locked in and can't later declared do a declaration that is at odds with his deposition testimony this month or last month, I should say a third iteration or extension of these two cases was issued by the second district in a decision in favor of US Bank. The cases field versus US Bank and the rule announced by the second district is that an evasive discovery response cannot be leader contradicted by a more elaborate declaration in opposition in opposition to a summary judgment motion. So in the field case, the bank had asked the plaintiff of contention interrogatory about a key issue in the case. And the plaintiff answered the contention rod with one word, unsure, as US Bank moved for summary judgment on the basis of that response, and the plaintiff opposed to summary judgment motion with a plaintiff's declaration containing more facts about that contention, beyond the word unsure, and the trial court granted summary judgment and then the Court of Appeal affirmed in from the decision issued by the second district, the Court held that California Civil discovery process aims to unearth the truth of the case, thus facilitating settlement on the basis of the mutually expected value of the suit. Evasive discovery responses frustrate this goal by concealing the truth a party cannot evade discovery duties, and then try to defeat summary judgment by adding factual claims to create last minute disputed issues. That was the tactic here and it fails, we publish to reiterate your heart scuze me to reiterate that you harm your clients interests when you craft or transmit evasive discovery responses. This case, I imagine Trial Lawyers gonna be citing this pretty frequently alongside unionbank and the and the de Mikos. Case. And this case kind of reminds me of one of the policies one of my favorite judges downtown LA Rupert Birdsong, he tells every attorney that appears in his courtroom on CMCS are trial setting that his courtroom only has two rules, litigations, not poker, you show your cards early and try the case that you have not the case that you wish you had. And I like this holding, what do you think about it, Tim?

Tim Kowal  22:18  
Yeah, I wonder what what would happen if instead of trying to supplement that interrogatory response, just be a declaration attached to the summary judgment? Opposition, if they had just filed a supplemental response to this to interrogatory ease would that have whatever changes the result?

Jeff Lewis  22:35 
You know, one day later, maybe, I guess, depends on when the MSJ was filed. If that supplement happened after the MSJ is filed, I would guess some of the fields case that wouldn't that would not be satisfactory?

Tim Kowal  22:48  
Or maybe consider if you find in reviewing your discovery responses or seeing them attached to a motion for summary judgment that you have given an incomplete or arguably evasive answer. Maybe you file one of those motions under 437. C, I think it's H to get a continuance of the hearing on the motion and so that you can conduct further discovery and then use that as as an opportunity to supplement your responses. Yeah, although and I also say

Jeff Lewis  23:13  
here, this was a pretty extreme case, it's pretty easy to say the one word unsure, is evasive. There might be paragraphs and paragraphs that one could write that may not be so easily categorized as evasive.

Tim Kowal  23:26 
Yeah, yeah. The one word response unsure, I think was not well taken here. I think I agree with you. I think I liked I liked the holding. I think I agree with it. But regardless, it's a clear rule. And as we talked about earlier, it's important that we have clear rules that all we can do. We can ask them judicial opinions is that they give us clear rules. What is that there's a legal maxim that says a good law is that which affords as little discretion as possible. Yeah. That the judge? Okay. What do we got next year? Oh, I think I wanted to talk about just briefly this this case that was making the rounds in in the news a few weeks ago. This is a cautionary tale in using social media at your law firm. So what happened was after the defense attorney obtained a successful defense verdict in a medical malpractice case, the attorney went back to his law firm and regaled the rest of his staff with the glorious victory and how they pulled victory out of the jaws of defeat, including the ringing of a victory bell. Now, it seems seems a little a little gauche, maybe in poor taste, given this was a medical malpractice case where someone died and then posted the video and social media. But here's the part of the attorneys remark, again, made made in this video that really got an a negative reaction. The attorney described the case as involving, quote, a guy, the plaintiff that was probably negligently killed, but we kind of made it look like the other people like other people did it. And so we'll post a link to that in the show notes that was making the rounds. I don't know What's what's become of that the video was almost immediately taken off of the firm's website. It was amazing that I'm sure someone had a stern talking to about posting that on the firm's website. Maybe they thought, Oh, well, it's just a great example of the kind of victories that we achieve here. But very bad luck.

Jeff Lewis  25:18  
It was a fantastic victory. I think they got a defense verdict in 20 minutes or something ridiculously small amount of time that the jury deliberates. So it was a huge victory. I gotta tell you, I've got three employees at my firm, my firm, it's important to recognize milestones and recognize achievement. So having a bell that employees ring, they recognize their achievement, no problem with that. But yeah, the decision by somebody to record that and puts it put on social media and the canons of ethics that talk about not misleading tribunals, with with statements of fact that are at odds with the truth. Yeah, this is a real problem.

Tim Kowal  25:54 
Well, I would have thought you would just have a victory bell for this brief has only once one space after every sentence, and it is in the correct font, and does not use too many adverbs.

Jeff Lewis  26:06  
We we did just recently move offices and we did have a discussion with my staff about installing a victory bell like this for every time we got a an appellate brief on file without a clerk rejection because especially down in Orange County, every once in a while The clerk will find a different rule to reject a brief with so stay tuned. We might still install one.

Tim Kowal  26:26  
I feel that pain.

Jeff Lewis  26:29 
Okay, now, you mentioned something about the appellate practice network. Yeah, this

Tim Kowal  26:33 
will be of interest to appellate attorneys. There's a new appellate practice network that's just been launched by the California Lawyers Association, part of through the litigation sections committee on appellate courts. The appellate practice network is the first and only public publicly open membership statewide bar group for appellate lawyers and lawyers interested in appeals. Members of the appellate practice network will have access to the statewide network of appellate attorneys through a listserv open to any member of the California Lawyers Association at no cost. And we'll put a link to the to join the appellate practice network in the show notes, I think could be an interesting, interesting resource. I'm looking forward to see what what crops up on it I've I joined when I first learned about it a couple of weeks ago. How about you, Jeff? Yep,

Jeff Lewis  27:20 
I joined I'm looking forward to seeing what kind of information can be gleaned from this resource.

Tim Kowal  27:25 
Okay, I think that rounds us off for for today. Yes, it

Jeff Lewis  27:29 
does. Again, we want to thank case tax for sponsoring the podcast each week, we include links to the cases we discussed using case texts and listeners of the podcast can find a 25% discount available to them if they sign up at case text.com/help. That's case text.com/c A lp.

Tim Kowal  27:45 
And if you're a listener to the podcast, and there's a subject that we haven't covered that you think is sorely needed, or there's a guest that you think would be would make a great interview on our podcast, please let us know it by emailing us at info at Cal podcast.com. And on our future episodes will continue trying to send you more news tips and insights you can use to lay the groundwork for an appeal when preparing for trial. See you next time.

Announcer  28:10 
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