The California Appellate Law Podcast

New Lawyer’s Toolkit Cases on Missing Findings & E-Filing Mishaps

September 27, 2022 Tim Kowal & Jeff Lewis Season 1 Episode 52
The California Appellate Law Podcast
New Lawyer’s Toolkit Cases on Missing Findings & E-Filing Mishaps
Show Notes Transcript

What happens when the court fails to make required findings? Probably not, because the California Supreme Court says you still have to demonstrate prejudice. But in this episode of the California Appellate Law Podcast, Jeff Lewis and Tim Kowal talk about how, in certain kinds of cases, the prejudice analysis may give a very light touch, and so your chances of reversal are much higher.

Some recent cases suggest the courts may be pointing in different directions in appeals involving missing findings.

Jeff and Tim also cover some other recent cases that you may want to have in your toolkit:

  • Failing to request a statement of decision changed the outcome of the appeal in Marriage of Burger.
  • Missing findings in a domestic-violence custody case led to reversal in Hutchins v. Hutchins, even though the omission really was not prejudicial.
  • Untimely Appeals May Be Excused If There Was a Mishap with E-Filing, held Garg v. Garg.
  • A Dismissed Appeal Is Not “On the Merits” If the Dismissal Was for Mootness, held Parkford Owners for a Better Community v. Windeshausen.
  • Does the Memo of Costs form have a fatal error by omitting the “penalty of perjury” language? Yes, says a dissenting justice in Srabian v. Triangle Truck Center.

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

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

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

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Other items discussed in the episode:

Tim Kowal  0:03 
If you find this podcast interesting, please recommend it to a colleague. And if you find the podcast a waste of time, well, please recommend it to opposing counsel.

Announcer  0:10 

Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:24 

Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:26
And I'm Tim Kowal this podcast is a resource for trial attorneys. We try to provide news and interesting cases out of the California courts each week, Jeff and I are appellate specialists, but both our practices are split about evenly between trial and appellate courts. If you find this podcast interesting, please recommend it to a colleague. And if you find the podcast a waste of time, well, please recommend it to opposing counsel.

Jeff Lewis  0:48 

And a quick announcement our podcast is sponsored by casetext. Casetext, a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber of case tech since 2019, I highly endorse the service listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at That's

Tim Kowal  1:13 
All right, Jeff. So every few weeks, we try to do an episode where we catch up on some recent interesting cases. I've identified a few cases some that deal with interesting decisions on statutes that require written findings. So something akin to statements of decision. Those are all those are a perennial source of appellate interest for this podcast, we got a couple of cases dealing with some interesting points of appellate procedure. We're going to talk about a case that the Supreme Court of California recently took up on review concerning arbitration waivers. And then we got a case on trial procedure and then we'll follow that with some more news and tidbits out of the Courts of Appeal. So the first case I wanted to talk about had has to do with written findings, requirement of written findings and certain kinds of family law proceedings involving custody orders, one of the first pieces of advice and appellate attorney will give to a trial attorney is don't forget that all important statement of decision you have to request the statement of decision. But sometimes, Jeff, when I give this advice to trial attorneys, it puzzles them because they know that the trial judge after a bench trial is already required, even without a request to give tentative decisions. And a statement of decision is usually just a copy and paste job of the tentative. So really, what's the big deal and requesting a statement of decision? Yeah, Tim?

Jeff Lewis  2:26
Why? Why harassing trial lawyers with such repetitive tasks that don't really mean anything?

Tim Kowal  2:32 

Funny, you should ask Jeff because the appellant in in marriage of burger out of the fourth district Third Division could tell you a really troubling story about that. So in that case, even though the trial judge had issued a written decision, the appellant lost her appeal because she failed to request a statement of decision. So Nancy burger was seeking an increased support award in that case, actually, I incorrectly preface this case. It's not a custody case. It's a support award case. So the appellant had sought an increased support award from her ex husband, Robert, Nancy argued that Robert should contribute more money to meet her marital standard of living. Nancy also sought her attorneys fees and the trial judge ultimately denied her request for attorneys fees. But the trial court still owed her an explanation. At least according to Nancy, she argued that under Family Code section 2030, the trial court is supposed to analyze the factors governing need based attorney fee Awards and the court just didn't do that here. Unfortunately for Nancy, her statutory right to findings was not enough. Robert pointed out that Nancy had failed to request a statement of decision and absent a statement of decision. The reviewing court will infer any factual findings that are supported by substantial evidence in the record necessary to support the result. And that's why the statement of decision matters. Jeff, if Nancy had requested a statement of decision, and the findings were still missing after that request, then the court of appeal would have been required to reverse because in that case, the record would have shown that the trial court failed to exercise any discretion on those statutory factors which again, are required to be considered by the family judge. Instead, because of the absence of the request or statement of decision. The Court of Appeals simply presumed that the trial court did consider those factors and the result was to affirm the denial of the support award.

Jeff Lewis  4:28 
Okay, so no appeal was ever lost from requesting a statement of decision too many times.

Tim Kowal  4:33 
There you go. That's that's one of our other Maxim's you can never lose an appeal by filing too many notices of appeal can never lose by requesting a statement of decision. One of the reasons this caught my eye, Jeff is because he reminded me of a case that we had covered from earlier this year Abbeydale Cadair versus Abraham that was a published case. The Abdelkader case came to mind because it had come to a different result. Adele Cadair dealt with a similar statute under the Family Code that requires writ and findings to be made in in that case that dealt with the the statute family code 3044, which involves rebutting a presumption of domestic violence rebutting a presumption of domestic violence when it comes to support a war. Rather, when it comes to custody awards, if there has been a finding of domestic violence than the court has mandatory obligation to presume that that custody award in favor of that offender would not be in the best interest of the children. The trial court in the Abdelkader case did not make the findings required by statute. And the appellant made the same argument as Nancy did here in this in this case concerning the support award, but but the adult Cadair court agreed with the with Nancy's argument that was unsuccessful here the delicate Cadair court held in a published opinion that where findings are required by statute, the findings are required. The end, the statute doesn't say the court has to make findings only if the appellant request the statement of decision just says the statute says findings are required. So trial court give the findings. I think, Jeff that the same result ought to have obtained here, just as with section 3044, in Abdel Cadair in this case that we're just that we're talking about marriage of burger, the statute, section 2030 requires that the trial court shall make findings that's the quote from the statute shall make findings on various factors concerning the support award. And just as, just as in Abdelkader, the trial court here failed to make the required findings. So a request for statement of decision is not required where the statute independently requires that findings are to be made. But the Burger King case didn't even discuss Abdel Cadair. So it seems like there's some sort of split on that issue. I'm not sure if that's a split in the law or a split or something that can be based on the the factors of the purposes of the two statutes here one concerning custody awards and another concerning support awards. Yeah,

Jeff Lewis  6:54  
interesting. I don't know how to reconcile those two results other than Berger was unpublished because you're right. It doesn't make sense.

Tim Kowal  7:01 
That is sometimes the all important distinguishing factors whether the opinion is published. All right. So let's move on to the second case. And it's it's actually another case that is involves the Adele Cadair opinion, it's an unpublished decision in Hutchins V. Hutchins, so we had just discussed Abdelkader and the requirement in custody orders where there is a finding of domestic violence. And in such a case, the trial court is required to make written findings rebutting the presumption that custody to the offender is not in the best interest of the children. So in this recent case, Hutchins V. Hutchins again in the fourth district, the court says this time that they really mean it. I think this even starts to infringe. On the other hand, Jeff, I just got finished telling you that I agreed with the Abdel Cadair case, but here I'm going to tell you about how they applied the delicate air case here in such a way that I think implicates another recent Supreme Court holding that says that, even if required findings are required to be made by the trial court, that error in the error in omitting required findings is reviewed for prejudicial error. It's not structural error that requires reversal, per se, but but after I described the facts of this case, and the courts analysis, you tell me if you think that that the court has has given true prejudicial error review, or is has reversed, in this case under more, something more like a structural error standard. So most findings and family court are left to the judge's discretion, but not a custody order. At least not once the dredge has found that the parent has engaged in domestic violence. So even though the father is only domestic violence, in the case of Hutchins V. Hutchins was ringing up the mother's employer and harassing the mother's employer about, you know, basically airing dirty laundry it was not not appropriate. But you know, it was a question in my mind whether that amounted to domestic violence. But at any rate, the court in in Hutchins held that the 5050 custody order could not stand because the family court failed to make written findings on the seven statutory factors under Family Code section 3044. So in this case, the Family Court acknowledged the presumption. So again, it found that the husband or the the ex husband had engaged in domestic violence by by calling the mother's employer. So it acknowledged that there was a mandatory rebuttable presumption that a custody award in his in the father's favor would not be in the best interest of the children, but then just concluded that the presumption was rebutted didn't go through each of the required factors under 3040. For the Court of Appeal held, this was not enough, the trial court must undertake two steps before concluding that the presumption had been overcome and didn't go through those those two steps and the seven factors to find that the rebuttal rebuttable presumption was overcome. The second step after finding is all of us appellate attorneys know Jeff, there's two things you have to establish as the appellant to get a reversal. You have to establish that there was an error and you have to establish that the error resulted in prejudice that there was There's some argument reasonable probability that but for the error, the outcome would have come out the other way. But on the prejudicial error analysis, the courts analysis seemed to me underwhelming. It's it seemed to run afoul of the Supreme Court's decision in FP vs Monier from 2007, that missing findings are not structural error, and that real prejudice has to be shown. And on the record here, it appears that the father easily could have rebutted all of the section 3044 factors. Instead, the Court of Appeal held that the error was prejudicial, because because of more abstract reasons about the importance of putting the judge putting pen to paper and writing out all of the factors in the findings, and that errors or or gaps in the reasoning or the evidence would be revealed in the writing, writing out of the decision. And these are all, you know, Jeff, I happen to have a case that involved this issue at the time FP versus Monier was being considered in the Supreme Court and so I read all the briefs in the FP Monier decision. Yeah, I agreed that it should be reversed on structural error grounds that omission should be should be structural error, and they defy harmless error review seems like the Hutchins court agrees. But that is not what the Supreme Court held it held that you had to actually go through and find, you know, analyze the factors and determine that the outcome would have been different. Yeah, well,

Jeff Lewis  11:26  
it is an unpublished case, I hate to keep beating that drum. But it's been published before we hit the record button. You and I were chatting about this case, we were talking about, well, what happens after remand here, and isn't just the same old judge get to just rehash go through the motion of making the findings. So why bother? And I said, Well wait till they get a new trial, new judge assigned after you get a reversal, you have the right to make a one 70.6 challenge and you educated me that oh, wait, Jeff, you only get a new judge after a reversal on appeal, if you are gonna get a new trial. And here, there's no new trials, it'd be the same old judge going through these findings. And yeah, it does seem like a bit of a waste of time.

Tim Kowal  12:06 
Yeah, I that was my prediction that that on remand, I suspect that the family judge is just going to say, Okay, I omitted the findings. Well, here are the findings. They support the same outcome. But I think the appellant may have won the battle here. But is it? Is she going to win the war? I tend to doubt it. I think this unfortunately might have been a wasted effort. Yeah. And and only to result in an unpublished opinion. Yeah. All right. Let's move on to a couple of cases that deal with some interesting points of appellate procedure that that I think are always interesting for trial and appellate practitioners to keep in mind. So in the the first case, first case is Garg versus guard. It is a published case out of the, the the fourth district division three, and it deals with the the timely filing of a notice of appeal when you're using E filing. The upshot here is that untimely appeals may be excused if there was a mishap with the electronic filing process. So we all know we'll start with the the maxim that a timely notice of appeal is ordinarily an absolute jurisdictional prereq requisite.

Jeff Lewis  13:13 
Yeah, you don't need this case. If it's an absolute jurisdictional prerequisite, either it's in 60 days, or it's outside of 60 days, you don't need a long case to explain it.

Tim Kowal  13:21 
Yeah, and yet, yet this case involves in the opinion involves an interesting city bus tour through the various types of exceptions to this absolute jurisdictional rule. The upshot is that there definitely are exceptions to the jurisdictional rule that a timely appeal is the absolute prerequisite the the exception at issue in guard relates to problems with the electronic filing. So here's a holding from guard, if you attempt to timely electronically file a notice of appeal, but something goes wrong in the electronic filing process. Don't worry, all is not lost, maybe here's your the two things you have to do first, if you have some trouble timely filing a notice of appeal because of the E filing system, first file the notice of appeal as soon thereafter as practicable. And again, you always have to file the notice of appeal in the Superior Court, not the Court of Appeal. And then at the same time you are of filing curing your your defect with the filing at the same time, you've refile that Notice of Appeal file a motion in the Court of Appeal, this time explaining what happened and showing good cause why the notice of appeal should be deemed filed as of the date of your timely attempt and site Rules of Court 8.7 D seven, subdivision D. That's what happened to the appellant here, the court found that that the appellate did did provide a good explanation, but it didn't file the notice of appeal as soon thereafter as practicable. So you have to do these things immediately after you notice the defect. the appellant and guard waited 29 days before spotting the problem and refiling it The Notice of Appeal and that was just too long. The Court of Appeal held that the appellant did show good cause for the technical foul up in this case, the legal assistant apparently had transmitted the notice of appeal to their E filing vendor. But then for reasons unknown, the vendor just didn't get it filed. The court concluded that the appellant did not detect the error and seek relief as soon thereafter as practicable. So the appeal was dismissed. Yeah, this interesting case,

Jeff Lewis  15:26 
provides a great roadmap for what happens if you try to electronically file and you're not able to get it on file on time through no fault of your own. So that was helpful. I can't say I agree with the outcome here in this particular case, because especially in Orange County, there have been times where I filed things and there's a delay in getting them back from the Superior Court, a conformed copy. And here the appellants, counsel submitted declarations about checking in periodically on the status of the filing, it's not like he filed it. And then 29 days elapsed, and then he checked in on the file. There was a lot of stuff that happened in between, I probably would have come out the other way. And especially because the Court of Appeal went to the trouble of making this roadmap of what to do. This is kind of a new area. In terms of a exception to the jurisdiction rule. I would have given this appellant a pass and said yeah, but for in the future. We're warning other appellate lawyers, if you don't get that conformed, copy back right. Right away from the superior court file file a corrected motion and a corrected notice and a motion.

Tim Kowal  16:27 
Yeah, it's interesting that you should they should mention that about about the delays that sometimes occur, because that was that was what the appellate attorney argued. He argued that, and this was an appellate specialist, by the way, so this, again, these things happen to the best of them. The the appellate specialist for the appellant was looking at the docket and said, initially said, I wouldn't worry too much about it because of delays in the clerk's office. I often, you know, like you said, Jeff, I often see delays of several days or even weeks before the show up, so I wouldn't worry too much about it. And it wasn't until apparently close to day 29, where they said, You know what, we better do something about this. And and they learned finally, that the that their Notice of Appeal had not in fact, been successfully filed. And so that's when they tried again. So I agree, I thought this was when it comes down to. But maybe the upshot here is that when they are making exceptions to the jurisdictional rule, they're going to make them rather small.

Jeff Lewis  17:24  
Yeah, yeah, absolutely. I want to see a bunch of motions.

Tim Kowal  17:27 
You pointed out to me also, Jeff, that something I didn't notice when I first read it that this is a per curiam opinion, it is not that doesn't have a lead author. It's not joined. It's just an opinion of the court. And I hadn't thought about why that might be. But I wonder if you had any ticks? I wonder if it is because they are making a making an exception to a jurisdictional rule. And they seem to be kind of poking, they're taking a little bit of air out of the balloon that this is an absolute jurisdictional rule that cannot contemplate any any exceptions. And yet, they go down and they list at least four recognize exceptions. And here, they make an acknowledge a fifth exception. And I wonder if you have any thoughts on that, Jeff?

Jeff Lewis  18:09 
No, I observed it, but I can't imagine why this would be the decision that they would make without a author.

Tim Kowal  18:17 
Yeah. Okay. Let's, let's move to the other case that deals with the interesting appellate procedure point. In this case, a dismissed appeal was held to be not on the merits, even because the even after the appeal was dismissed on mootness grounds. So

Jeff Lewis  18:34 
as a quick warning to our listeners, if you've not had a full cup of coffee yet, make sure pause the podcast go get a cup of coffee and and make sure you're fully caffeinated because this decision is a brain twister.

Tim Kowal  18:46 
All right. Well, let's, let's try to try to take it slow here. So this was an appeal that was dismissed. But as I noted, after reading the opinion that there may be a silver lining if you have an appeal dismissed because the underlying judgment may no longer have any preclusive value. That's what happened here in this published opinion in park furred owners for a better community versus Windish, Towson. This is out of the third district in July 2022. So in this case, a neighborhood group challenged the expansion of a storage facility on SQL grounds and we had just talked about SQL with Peter Prowse. On our last episode, Jeff, the trial court rejected the challenge and the neighborhood group appealed but pending the appeal the expansion project went forward and drill went forward and completed the appeal was rendered moot leading the Court of Appeal to dismiss so then the neighborhood group challenged the issuance of a business license to the storage facility because it had lost that battle so these to find some other way to gum up the works in this development project. So it so I challenged the business license to the storage facility that it wanted to stop this time on zoning grounds. The storage company this time filed a motion for judgment on the pleadings said that look this these issues have all already been there already, they already shot their wad on this one they so now it's res judicata issue preclusion collateral estoppel. They argued that the issues and the new lawsuit were were encompassed already in the in the judgment that was now final. And the trial court granted the motion. But the Court of Appeal reversed. Jeff, it seems like a good argument that any kind of arguments toward obstruction of this storage facility project the the neighborhood group needed a cert in that first lawsuit, and which they lost. But the Court of Appeal disagreed it said that res judicata and claim preclusion require a final judgment and hear the prior judgment, though it was challenged on appeal was dismissed on mootness grounds and a dismissal solely on mootness grounds does not result in a final judgment, quote on the merits as required to apply the doctrine of res judicata or preclusion. Jeff, I'm not sure about this whole thing. When the trial court entered the judgment here, it had preclusive effect and had the appellate not appealed, it would have retained its preclusive effect. But the court held that merely by taking the notice of appeal, and then failing to get a decision before the corpus of the appeal was destroyed, thus rendering the appeal mood that have the the effect of eliminating the preclusive effect of the judgment. So the appellant essentially gets a free do over here. I wondered if dismissing an appeal on mootness grounds destroys the preclusive effect of a judgment. Could the appellant do the same thing by for example, by other types of dismissal of the appeal? What's a if the appellant just files a notice of appeal, but doesn't file the $775 filing fee that goes along with it and the appeal is dismissed? Is that destroy the preclusive effect of the judgment?

Jeff Lewis  21:42 
Yeah, you know, normally I would just say, Tim, it's unpublished decision. This one's published. It's very counterintuitive. And, you know, in this instance, there were actions outside of the appellants control the completion of the project that rendered it moot. But you raise a good point, could an appellant create mootness or other issues to cause a dismissal and put itself in a better position than have the appeal never been filed? i It's counterintuitive this result to me.

Tim Kowal  22:10 
Yeah. Well, and as you mentioned, about mootness. You know, I'm not sure if there's a difference between a an appeal that's dismissed on mootness grounds and an appeal. It's dismissed for for other grounds. But I would suspect that if this issue came up, again, that if a Court were to follow the Hartford owners case, it would hold it to its facts. And it would only apply it if it were a case that also involves an appeal that was dismissed on mootness grounds and not for some other reason.

Jeff Lewis  22:39  
Yeah, yeah.

Tim Kowal  22:40 
Yeah. All right. Okay, let's take a quick discussion. And just kind of an aside on a case that was recently taken up by the Supreme Court on a petition for review this, this was the quash Quach versus California Commerce Club case that that we discussed in previous episode, Jeff, it was about where a world a litigant had litigated a case for 13 months before finally petitioning moving to compel arbitration. And the court said, Sure, no problem, because under the California Supreme Court precedent, merely driving up costs and expenses in litigation does not constitute prejudice in order to deny a petition to compel arbitration. And there was a dissenting opinion that says, What are you talking about the whole point of a right of arbitration is for speedy and efficient results. And that is the prejudice here, because by litigating expensively for 13 months, you have denied the very purpose of arbitration. And so now the California Supreme Court has taken up review of that decision, David Ed injured notes that the opinion was filed less than two weeks before the United States Supreme Court held that prejudice to the other side is not an essential is not essential to finding an arbitration waiver in federal courts. So I wonder if the California Supreme Court may be looking to align its its holding with the United States Supreme Court.

Jeff Lewis  24:04 
Yeah, obvious. You see what the California Supreme Court does with that.

Tim Kowal  24:07 
And then just just for bragging rights, Jeff, the quash opinion was originally unpublished until I filed an amicus request for publication and resulted in it being partially published and now taken up on review by the Supreme Court. Yeah, conclusive

Jeff Lewis  24:21 
proof. The second district has clerks listening to this podcast.

Tim Kowal  24:25 

That's right. Okay, the last last case before we get to our tidbits, this involves a bit of trial procedure. The upshot being that a fatal error in a judicial cost memorandum led to may lead to losing your your right to costs in a case. So in this case, what happened is that the successful plaintiff filed a judicial council form MC dash 010 for the memo memo of cost, but it turns turns out that forum Jeff has been letting us all down because the memo of costs As required to be verified and verified means signed under penalty of perjury, but Judicial Council form MC 010 does not have the penalty of perjury language. So if you although the the majority here held that the case is Serbian versus triangle Truck Center out of the Fifth District, the majority held that night it's close enough, even though it doesn't have the penalty of perjury language, we're still going to call it verified. But in dissent, Justice Kathleen Meaghan I thought had a more persuasive reasoning that following the statutory language, verified means signed under under penalty of perjury, and this is an evidentiary showing, because if you remember this, the way the burden shifting works in a memo of costs is that the memo of costs is an evidentiary showing prima facia case of what costs the prevailing party incurred. And then when you file a motion to strike or tax those costs, the moving party has to bear that burden with evidence. And so if the moving party has to prepare declaration signed under penalty of perjury to overcome the evidentiary burden, and it stands to reason that that initial evidence, evidentiary burden needs to be on the same footing, ie supported by a declaration signed under penalty of perjury.

Jeff Lewis  26:08 
Does that mean for all your memo of costs in the future? Tim, you're going to be typing in extra language above your signature saying under penalty of perjury.

Tim Kowal  26:16 
Yeah, you bet. I will. I don't want to now that that argument, that argument is on the wall. Now, as we say it is not a it's not a frivolous argument. Another an interesting point that Justice Meaghan pointed out in her dissent is that the Judicial Council did get it right in its form for appellate costs after appeal form a PP. 013. That does include the penalty of perjury language on it. So it does seem like it was this is an oversight by the Judicial Council in the MC 010. memo of cost form.

Jeff Lewis  26:50 

Yeah, interesting. Okay. I don't know if it counts as being on the wall or out there if it's a dissent, an unpublished decision. I don't know if that's an argument that I would ever make an appeal that the memo cost should have been verified under penalty of perjury, but I'll I'll tuck it away.

Tim Kowal  27:06 
You're not You're not going to make your memo cost under penalty of perjury.

Jeff Lewis  27:09 

Well, yeah, there's that. I don't know if in an appeal, I would ever attack a memo costs for a failure of proof. Yeah, no. All right. All right. Let's tackle some tidbits here. You know, Tim, before our podcast was published a couple years ago, there was another little podcast called Serial about the murder, conviction of Aiden and SIADH. He was a high schooler in the Midwest. Did you ever listen to that podcast?

Tim Kowal  27:35 
You've told me about this one, I have not made it to that episode, though. Well,

Jeff Lewis  27:39 
highly recommend it as case by Yeah, high school kid he was convicted of killing his ex girlfriend, then the podcast covered the case and some loose threads that his lawyers were pursuing and post conviction relief, and trying to get the case overturned. And all of the efforts by his defense lawyers were not successful in getting him a new trial, ultimately through the appellate process. But recently, the prosecutors in the case filed a motion to vacate his criminal conviction to give him a new trial, and also to let them go out of jail after 20 years to be on the outside while he waits for a new trial if the prosecutors decide to prosecute again. And this was all based on some information that the prosecutors unveiled about two other possible suspects. It's super interesting case, you don't often see prosecutors making a motion to vacate a conviction and casting doubt on their own conviction process.

Tim Kowal  28:35 
No, that's really interesting. And it was I was trying to remember the name of the book that I read several years ago about a similar kind of story where they police and prosecutors were convinced they found the right, the right guy for this murder. Although, you know, there were eight out of the 10 puzzle pieces fit but there were two really weird ones that didn't fit. And after years and years and years, they were finally able to get get the the wrongly accused out of prison, they found the so called one armed man.

Jeff Lewis  29:04 
Yeah, it'd be interesting because you know, this podcast, you know, putting the facts in the law side, this podcast generated enormous sympathy for this criminal defendant. And I think there's an HBO show and lated podcast that came out yesterday to see if the prosecutors decide to team and mount a Second prosecution or if they'll just let them go free.

Tim Kowal  29:22 
Yeah, well, it's it's interesting that it took the it took the prosecutors to put this on the some of these problems apparently had gone up to the trial judge into the courtroom, even the trial judge was convinced at one point to grant a new trial, but then on appeal, the grant of new trial was reversed, right? Yeah. Yeah, that's correct. Does that suggest that that's suggests an institutional thumb on the scale in favor of prosecutors after you've gotten a guilty verdict? It's going to take the getting the you have a better chance getting the prosecutors to come around than judges.

Jeff Lewis  29:56 

Yeah, that's if you don't have the prosecutors on your side. It's hard. Get a new trial
Let's just say that yeah. All right. Next tidbit, the Supreme Court will review whether LA District Attorney Gasco and may order all deputies not to enforce the three strikes law. The Supreme Court granted Los Angeles District Attorney George Gaskins petition seeking review and Association of Deputy District Attorneys of LA County versus guest scone. The case involves Whether gas Cohen has the authority to prevent the prosecutors in his office from invoking the three strikes law to obtain sentencing enhancements, the Trial Court sided with the union and so did the Court of Appeal ruling in a published opinion earlier this year that Gascogne does not have the discretion to adopt a policy that completely frustrates the purpose and mandate of the three strikes law. Jeff, you and I discussed this previously on episode 38 of the podcast. Let's just say that yeah. All right. Next tidbit, the Supreme Court will review whether LA District Attorney Gasco and may order all deputies not to enforce the three strikes law. The Supreme Court granted Los Angeles District Attorney George Gaskins petition seeking review and Association of Deputy District Attorneys of LA County versus guest scone. The case involves Whether gas Cohen has the authority to prevent the prosecutors in his office from invoking the three strikes law to obtain sentencing enhancements, the Trial Court sided with the union and so did the Court of Appeal ruling in a published opinion earlier this year that Gascogne does not have the discretion to adopt a policy that completely frustrates the purpose and mandate of the three strikes law. Jeff, you and I discussed this previously on episode 38 of the podcast.

Jeff Lewis  30:46  
Yeah, interesting separation of powers arguments, and I'll be interested to see what Supreme Court does with this one.

Tim Kowal  30:51 
Yeah, every month, Jeff, the Orange County Lawyer magazine publishes a column by Justice William bed beds worth of the fourth district third division here in Santa Ana. This month's column I thought was interesting. He talked about oral argument justice beds, where it says that preparing for oral argument is really hard on the justices. I've got a couple of interesting quotes that I thought I'd share with the audience quote, this is talking about oral argument. This is counsels last shot, if there are things I didn't buy in the briefing or didn't understand. This is the last chance to get into into sync. Here's another quote, I spend the weekend or the night before preparing for each of the 12 to 15 oral arguments I'll hear this week, and I have to be sharp. And again, I'm worn out by the end of the day, I watch a lot of baseball on TV, but I seldom see the ninth inning during during oral argument week. And then finally, we don't get many submitted these days. A few would be a few more would be welcome as Justice riders damn used to say 30 minutes counsel, was your briefing that bad? And what made me enjoy this column, Jeff is is having a chance to put my myself in the shoes of justices preparing for oral arguments. Sometimes I get out there and I think well, I'm just going to try to try to put a new spin on things, I'm just going to really come at this a different direction. And I would be very concerned about that. Now after reading this column, they've they've tried to get into sync injustice buzzwords words here with my arguments. Maybe I tried to kind of nudge them a different way or maybe but you don't want to tax them too much. Because they spend a lot a lot of time and it's tough for them to to sit up there and listen to all those arguments. You want to you want to be familiar. You want to make them feel that they understood correctly. Yeah, yeah. Okay. Another another tidbit about oral argument in the Supreme Court in recent years of California between 200 Well, here's a just a better setup. The tidbit. The question is, how long is the wait between briefing and oral argument? So in the Supreme Court, the answer is between 250 and 340 days, that's eight to 10 months. Compare that to the Court of Appeal average for the entire appeal in civil appeals from notice of appeal to opinion, it's 568 days, again for you record preparation. Right. Right. So but but just the portion for waiting, waiting for the oral argument after briefing your wait, okay, you know, eight to 10 months just to get set for oral argument. So it's a much longer process. Relatedly Supreme Court's productivity seems to have dropped in recent years. This was a piece by John Eisenberg. Recently, yearly out outputs as John Eisenberg have written opinions out of the Supreme Court has plummeted and alarming 61% compared to a decade ago, this leads says Eisenberg to more uncertainty in the law, more wasteful litigation and less confident advice to clients.

Jeff Lewis  33:47 
Interesting. Interesting. All right. Hey, let's do a quick update about the potter handy lawsuit. We reported in earlier episodes. In an earlier episode about a joint lawsuit between the LA and San Francisco district attorney's office against the potter end law firm for filing too many ADA lawsuits that were deemed to be Shakedown lawsuits. And a hearing was held in late August there's a hearing on the potter handy firms demurrer invoking Civil Code section 47. The litigation privilege and surprisingly, the court sustained Potterhead needs demurrer case was thrown out, at least at a civil court. The court's decision left room for the possibility of maybe future criminal prosecution against the potter handy firm. And last I checked the LA and San Francisco da as attorney we're still mulling whether or not to appeal, they have 60 days or so to appeal to pay on if they use any of the exceptions the 60 day notice of appeal period.

Tim Kowal  34:42  
That's that's interesting. Well, I'm a little surprised by that. But I guess that leaves that means that the only remedy then is what sanctions motions, one 20.7 motions and individual cases.

Jeff Lewis 34:53 
Yeah, yeah. The you know, federal courts. This was primarily about federal court activity and federal judges in this context how have been known to set OS seas and to target lawyers who are abusing the system.

Tim Kowal  35:05  
Right, right. Okay. The Supreme Court retroactivity decision presents another challenge to the three strikes law. So the California Supreme Court continues to make comments suggesting that the three strikes law may be in trouble. The latest comments come from justices Lew and Groban dissenting from the majority in the case in Ray Milton, Milton has another opinion dealing with retroactivity. The rule on retroactivity is that court opinions that change the law and criminal proceedings are retroactive only if they are substantive, not if they're merely procedural. The question is, what about a sentencing hearing where the judge categorized out of state convictions as violent for purposes of three strikes law, the Court has held that the right to jury trial attaches to such hearing. So if you were deprived of the right to jury when you were convicted years and years ago, can you collaterally challenge or three strikes sentencing? Well, only if the rule guaranteeing the right to jury was substantive. And in the case in Ray Milton and a five to two split decision, the Supreme Court holds no, quote, The Guyardo rule, which is the right to jury in categorizing out of state convictions under under the three strikes law was procedural in nature, and that's where justices Goodwin, Liu and Josh Groban both dissented. Justice Liu writes that, quote, The characterization of Guyardo in today's opinion may reopen serious questions as to the constitutionality of the three strikes law. And Justice Lew says that the Guyardo rule protected the constitutional integrity of three strikes and that this opinion underscores that integrity thus making it more subject to challenge and Jeff, that's the setup to this dissent was rather long and a bit Securitas. But the the reason I wanted to read that out to our audience is to be on the lookout for serious challenges to the three strikes law. Obviously, the Los Angeles district attorney has been challenging that right in one decision. And then we've got these signals from justices Lou and Groban that, that that is under some fire.

Jeff Lewis  37:09 
Yeah, yeah. I imagine the criminal defendants who have sentencing enhancements imposed due to the three strikes law for our historic and out of state convictions would find that the process of categorizing those out of state convictions as predicate offenses for three strikes law would find those substantive as opposed to procedural when you think about the impact on their lives and adding decades of sentencings to their, to their prison terms.

Tim Kowal  37:36 
Right. Okay, two more tidbits. Here's, here's my last one, and then they'll let you and Jeff. Okay, this is kind of a fun one word choice, but it's a fun one, but it's also slightly controversial. So alien or non citizen, which do you use in your briefs, judges, Beya and MerKiVa have different takes from the recent Ninth Circuit opinion cases. avillez vs. Garland September 2022. Opinion, Chief Justice Medusa uses the term non citizen to describe the petitioner in this case, the chief judge gives two reasons. First, the Supreme Court of the United States of late has been using the term non citizen despite the fact that the statutes use the term alien. And the second reason is that the Chicago Manual of Style says to avoid terms that quote reasonable readers might find offensive or distracting. Judge Beya disagrees. In his concurrence, he says, He has three main main points. He says that the term non citizen is imprecise. The petitioner here is not a non citizen. He's a citizen of Mexico, the term non citizens suggest the person may be a stateless person, which is a different, different kind of thing or a subject of a monarchy, such as Spain or Saudi Arabia, or a person in a territory or province, all of which makes the term non citizen imprecise and incorrect. Hear the term alien means a person from somewhere else, which is the more precise and correct meaning judge Bay argues, or reasons judge baya The second reason judge bear gives is that not really a reason but some interesting context. Judge Bay us it was himself an alien, he hailed from Spain and then from Cuba, and he was subjected at one point in his life to deportation proceedings, and judge Beya personally does not regard the term alien to be offensive. Right. Third reason judge BIA gives alien is a statutory word with statutory meaning the judiciary is not at liberty to replace statutory words with terms of its own liking. And the final reason offered by Judge Bay. This rift in the language puts litigants to a hard choice of using the precise statutory word or the less precise judicial word.

Jeff Lewis  39:43  
Yeah, yeah. Yeah, there's words like, you know, homeless versus unhoused. There's lots of buzzwords out there that you just never know my word of thumb, or my rule of thumb usually is to research the appellate justices who are going to be deciding my case. Look at how they've written recently He says about that subject matter and use whatever words they use.

Tim Kowal  40:03 
Yeah, I got the one that made this one particularly tough is that the statute uses the term alien. And so if you're talking, you're making an analysis where and in even in the Chief Judge review is opinion, the word alien comes up several times because she's citing the statutory language. And so you have to move back and forth between two different words. So it makes a little bit confusing. So I, I kind of appreciated judge Bay as point that about the rift and language making it awkward for litigants to to argue these points. Yeah.

Jeff Lewis  40:36  
Yeah, good point. All right. Let me wrap it up with a couple of two last tip. tidbits. One on an earlier episode, we had attorney Matt Struga on the show to talk about an anti slap matter pending before the California Supreme Court. And at issue in that case was whether tenants picking out picketing outside of someone's private residents over an eviction was a public issue covered by the anti slap statute, or merely a private dispute about one eviction that was not worthy anti slap protection. And the California Supreme Court ended up siding with the protesters, the court found that the Court of Appeal erred in holding that the demonstration outside the home did not constitute speech in connection with a public issue under the anti slaps catch all provision, and the court clarified that free speech activity that might simultaneously involve both a private dispute and a broader public issue. Both can be true. And the existence of a private dispute does not preclude a finding by a court that a broader public issue exists. So it's a big win for people who bring anti slap motions, especially when you're trying to fit it within the catch all provisions of the anti slap law.

Tim Kowal  41:47 
Yep, the direct result? And then

Jeff Lewis  41:51  
File this under. I don't know what you'd call this under. But when you when you're drafting a brief, Tim, do you ever write a sentence followed by a blank to remind you to fill in the site later?

Tim Kowal  42:01  
Oh, all the time. Yeah.

Jeff Lewis  42:03  
In a raiga versus Bay Area, Rapid Transit District, September 14 decision, the appellant did nothing but have blanks in his opening brief. So he'd have sentences followed by parentheses, CTE dash period, and he didn't fill in the page number. And he didn't have any record sites. And one reason might have been that he forgot to fill them in. But I'm more likely reason from reading the opinion is that none of the evidence that he needed to rely on for his arguments was actually in the record. The first district did not appreciate what he did and predictably affirm, but as a good reminder, you know, whenever I finalize my brief, I always do a word search for the word site. And for underscores just in case,

Tim Kowal  42:45  
yeah, that's a good practice. And I know that I saw that same thing that you did, Jeff about. I think it was in a footnote, the court mentioned that the appellant had had not made a motion to augment the record, the appellant had indicated that oh, well, all the evidence I need didn't make it into the clerk's transcript. This is really the clerk's screw up. And the court said it's the appellants responsibility to make sure the record is complete for the appeal. You didn't make a motion to augment and all these blank citations to the record are not going to cut it. Yeah. Oops. So that that provides some good authority that that goes into into my file under the tag respondents toolkit. Yeah,

Jeff Lewis  43:23 
absolutely. All right. Well, I think that wraps up this episode. Again, we want to thank case tax for sponsoring the podcast and each week we include links to the cases we discuss using case texts and listeners of the podcast can find a 25% lifetime discount available to them, they sign up at case That's case ELP.

Tim Kowal 43:41 
And we always love hearing from our our listeners about suggestions for future episodes, topics or other guests we have, we have a file and we are dutifully working through that list of guests to get on the show that have been suggested by our guests, by our listeners, so please send them in to info at Cal or, or you can email yet for me individually if you have our email addresses. All right, see you next time.

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