Zoom Trials Are Not (Yet) the New Normal

Tim Kowal  0:03 
denials or petitions for review mean nothing.

Jeff Lewis  0:06  
Got it. So these are fish.

Announcer  0:08 
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  0:22 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:24 
And I'm Tim Kowal. The California appellate law podcast is a resource for trial attorneys and appellate attorneys. Both Jeff and I are appellate specialists and we split our practices about evenly between trial and appellate courts. We try to make this podcast a resource for trial and appellate attorneys, so they can learn some news and tips they can use in their practice.

Jeff Lewis  0:42 
And a quick thank you to our sponsor. 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 since 2019, I highly endorse his service listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up at casetext.com/CALP. That's casetext.com/CALP.

Tim Kowal  1:07 
All right, Jeff. Well, we don't have a guest today. But our listeners should not tune out because we have some cases that they must know about in their practice very important cases for first, for personal injury attorneys, we're going to talk about a crossover civil and criminal case dealing with victims rights to restitution. We're going to talk about a case dealing with the harassment exception to free speech. This one is an important one to bookmark dealing with Zoom trials and how trial attorneys and judges need to know that these are not necessarily substitute for real trials, not at least until the legislature acts. We're going to talk about dismissals of Appeals and the pitfalls that await and similar pitfalls concerning the rule 8.108 extensions have the time to appeal, how they work and how they don't work. So Jeff, you want to start us off talking about this criminal and civil crossover case? I thought that was really interesting.

Jeff Lewis  1:57  
Yeah, we don't do much criminal case, or many criminal cases here. This was an interesting one arising from the second district People vs. Nonaka. And it's a published decision. And this case had a crossover between civil and criminal case involving a DUI, an accident that occurred during a DUI. And it's interesting because of the crossover, and it's the rare case of a DA appealing a decision.

Tim Kowal  2:21 
Yeah, you don't see that much. The defendants are usually the ones on appeal, not the DA. Yeah,

Jeff Lewis  2:25 
exactly. So in this case, a criminal defendant was accused of DUI in a criminal proceeding. He was also sued in a civil court for injuries to victims from a car crash while driving under the influence. And the criminal case, he pled guilty. And he agreed to a restitution hearing that would be held at some point later to determine the exact amount of restitution. So he promised as part of his plea bargain, he would pay restitution, but the amount was going to be determined later, after the plea bargain. There is a civil settlement where insurance company pays the victims and the victims sign releases of the defendant.

Tim Kowal  2:58  
Okay, so there's a plea on the DUI and the victim gets paid, and the defendant is released from civil liability. So far, so good.

Jeff Lewis  3:06 
Yeah, case closed, right. Well, not so fast. And so back in the criminal court, the DA was seeking restitution for the victim. And the criminal defense lawyer says Not so fast. We have a signed release by the victims. The trial court denies the restitution motion motion on the basis of the release and the DA

Tim Kowal  3:26 
appeals. Yeah. So that that seems like the right result that the restitution has been waved away by that civil release.

Jeff Lewis  3:33 
Yeah, well, yeah. Until the second district pointed out that neither the people nor the state of California, or excuse me, the people nor the DA was a party to the civil case, not bound by the waiver. And I found this interesting. I didn't know that the right to restitution for a victim of a crime is considered a constitutional right under our state constitution. The Court wrote that restitution is constitutionally required, quote, in every case in which a victim has suffered economic loss, as a result of the defendants conduct, close quote, regardless of the sentence or disposition imposed. I found that interesting. So most of the time, when I've had civil and criminal cases crossover, it's my experience that the civil cases stayed until the criminal case is completed, and then you prosecute the civil case. But I suppose if there's any lesson to be derived from this case, it's that if you're a civil attorney representing a client with a pending criminal case proceedings, with potential for restitution, wait until the criminal case is fully and finally resolved, including the amount of restitution for attempting to conclude a settlement on the civil side.

Tim Kowal  4:36 
Right, that would be one way to do it. I wondered if another way to do it might be if the civil attorneys had incorporated into the settlement agreement and release the waiver of the right of restitution. Is that right of restitution, the constitutional right, I assume that's held by the victim, right? Yeah. Interesting.

Jeff Lewis  4:53 
It seems to me from my reading the case that it was the absence of the DEA or the people of the state of California. As a party to either the settlement agreement or the civil case, that was the key issue here, not whether or not the release was broad enough to encompass restitution in a criminal case.

Tim Kowal  5:11 
Yeah. It seems strange to me that why would it matter if the DA is not not a party to that settlement if the restitution right is held by the victim? Well, yeah, maybe Maybe you're right. Maybe that's the only way you can do it is to make sure is to wait to settle the the civil claims until after the restitution order has been issued? Yeah, or get the DA to buy in and maybe get the DA involved sign off on the settlement. Right.

Jeff Lewis  5:36 
Another interesting case, this one arising from the first district involves the use of subpoenas to identify anonymous speakers and a unique California law that protects anonymous speech. Tim, the decision here we're going to talk about begins with this language. The purpose of litigation is to resolve participants disputes, not compensate participating attorneys. Our courts are sufficiently burden without combat kept alive solely for attorneys fees, never a good sign for the appellant when the case begins that way,

Tim Kowal  6:06 
no, not a good sign, although, as the attorneys who have to live off the fees, as a practical matter, you note that often it's the attorneys fees that become the tail wagging the dog, especially when when you're not dealing with astronomical amounts of damages. But when litigation proceeds the the amount of attorneys fees becomes comparatively astronomical, so I don't it struck me as maybe not entirely fair, at least I didn't like the idea of the Court of Appeal, treating attorney fees as purely mercenary.

Jeff Lewis  6:36 
Yeah, well, maybe maybe the result here was less about going after attorneys fees and more about perhaps the Court of Appeals disdain for for dough in this

Tim Kowal  6:44 
case. Yeah, let's hear about the circumstances of this one. Yeah, so the

Jeff Lewis  6:47 
dovie McLaughlin case was about an internet troll. We'll call him doe, who anonymously posted on Twitter mug shots from an arrest of a person who ultimately had his arrest expunged. And doe posted these mug shots on Twitter that these Twitter accounts were ultimately suspended for violating Twitter's terms of service, the service and the the arrestee actually had litigation pending outside of California and an Illinois court had sought discovery in that pending litigation to identify who doe was and why doe was posting these mugshots. The out of state court issued a subpoena and letters rogatory. That's a phrase entered and a few years

Tim Kowal  7:26 
letters rotatory.

Jeff Lewis  7:29  
To the San Francisco superior court basically saying hey, San Francisco Superior Court, we've issued a subpoena here in Illinois, respect it in San Francisco, as in San Francisco, DOE retained a lawyer and move to quash the subpoena in San Francisco and sought attorneys fees.

Tim Kowal  7:45 
Yeah, I wondered at this point. So So dole is the anonymous Twitter troll right and, and DOE is trying to maintain his or her anonymity as well. So how did doe filed this motion to quash without identifying who DOE is

Jeff Lewis  7:59 
I've seen this happened all the time. It's quite frequent when people are trying to sue for defamation statements made, let's say on Twitter, or I saw a high profile one in me involving Prince Harry and Megan Markel, when the when the paparazzi were taking photos of their baby, their lawyers filed a doe lawsuit, and then subpoenas to Twitter, etc, to find out the identity of people who are pushing these photos for sale. And then if those subpoenas ever want to be challenged, the lawyer just enters files a motion to quash on behalf of Jane or

Tim Kowal  8:27 
John Doe. Okay. All right, if you were Yeah, so

Jeff Lewis  8:31 
the motion to quash was ultimately unnecessary due to a settlement of the arrestees litigation in Illinois, the state where the subpoena originated from. So you would think that that settlement out of Illinois would have been the end of the matter.

Tim Kowal  8:45 
And I will go out on a limb and hazard that it was not the end of the matter.

Jeff Lewis  8:48 
It was not John Doe continued to litigate the question of should he get attorneys fees in California for having to file a motion to quash to protect his identity? And the interesting thing I learned from this case that I didn't know before is that Code of Civil Procedure section 19 87.2, mandates an award of fees were the target of a subpoena. An anonymous speaker files a motion to quash if that subpoena seeks personally identifying information in connection with an underlying action involving free speech rights. So this

Tim Kowal  9:20 
is specifically subpoenas directed to an anonymous person,

Jeff Lewis  9:25 
anonymous person in an action dealing with a free speech issue.

Tim Kowal  9:29 
Okay, and anonymous person trying to protect anonymity to engage in free speech activity is entitled to attorneys fees and successfully quashing a subpoena. Yeah, okay.

Jeff Lewis  9:40 
So I found the case interesting, because I learned about that statute. The other thing, you know, the case involves a tortured procedural history of the litigation, Illinois and the litigation in California. But to me, the most interesting part of the decision was towards the end the analysis of whether doe met the statutory burden of proving that the case was related to free speech and thus war warranted a mandatory award of attorneys fees. And there were a lot of problems with this appeal. Doe forfeited a few arguments. But ultimately, the Court of Appeal ruled against though, denied him fees. And the ruling was made because the Court of Appeal held that those tweets were, quote, targeted harassment, close quote of the arrestee. They were not deserving of First Amendment protection. And therefore, DOE could not prove a statutory element of the fee shifting statute that the underlying case arose from free speech. I can't say I disagree with the result here. But I'm always concerned when a court finds a new exception or dilution of the First Amendment. And I was interested to learn that when a doe, you know, brings a motion to quash to protect his identity in a free speech case that doe must be awarded attorneys fees, if he prevails,

Tim Kowal  10:45 
I tend to agree with you. I'm always most a little concerned about how unlawfully the doctrine of harassment is it can really vary from one person to another it's a real eye of the beholder type of type of inquiry. And I, you know, I'm uncomfortable with with constitutional rights of especially the the right of free speech being conditioned on particular judge or other finding that the free speech was harassing. But let's go back to that opening quote. Jeff, what is your your takeaway now that we've covered some of the the factual circumstances of the case? Do you think the court was still on the on the mark to note that the courts are sufficiently burdened without combat kept alive solely for attorneys fees?

Jeff Lewis  11:23 
Well, let me just say, on occasion, I've taken on a slap case where I represent somebody on a contingency fee. And the only way I'll ever get paid is if there's a court order of attorneys fees. And so I feel not terribly comforted by that passage from dovie. McLaughlin.

Tim Kowal  11:40 
Yeah, I agree. I don't like the idea of being I feel a little bit chased off with a stick from from seeking my attorneys fees that or otherwise invited by the statute that we learned about in this case. 19 87.2. Yeah, that's interesting.

Jeff Lewis  11:55  
And then the last point I want to bring up today for me, before we get to your cases is there is a case pending before the Supreme Court, I think supreme court's going to decide whether or not to grant sir Shiori and involves somebody who was arrested criminally for parody, he had parody, he had issued some statements about a local police department and had been arrested for it. And as happens when people will seek relief in the Supreme Court, bunch of people file amicus briefs, and this week, the onion filed an amicus brief, which was really notable for a few reasons. First of all, it was written by primarily by somebody from the onion as opposed to a lawyer. And it's a funny read. It is it is itself a parody. The things that is in the brief, and it says about the onion is pretty fantastical. They got me wondering, can an appellate lawyer sign a parody? amicus brief that makes blatantly false statements of fact, for purposes of comedy is interesting. Read, what did you think about it, Tim?

Tim Kowal  12:55 
Yeah, I find myself reading it thinking, Well, if this was just a piece of a parody or satire that I had found online, you know, maybe I would, maybe I don't know that I would read the whole way through. But the fact that it was in an amicus brief filed to the Supreme Court is what made it noteworthy for me. But I noticed that that that part of this case are a big part of this case deals with qualified immunity. And there wasn't anything to do with qualified immunity doctrine in this satire brief, and I thought that was a rich vein that got left on the mind. I thought you could, they could have made a lot of a lot of satire out of qualified immunity cases. I've I'm you might know, Jeff, I'm president of the Orange County federal society chapter. I've actually got working on a debate on the qualified immunity doctrine coming up in first quarter 2023. And so maybe we might want to get that lined up, because I think there's a there's a lot of interest on both sides of the aisle about reforming that doctrine a bit. So I'm interested to see how that aspect of the case shakes out. Yeah, for sure. Okay, let's get on other a couple of cases that that I noted the first one about zoom trials. They're not a substitute for in person trial. So lawyers and judges by this point, and here we are late 2022. We're in fourth quarter, Jeff 2022. We've gotten quite comfortable using remote technology to conduct legal proceedings, like depositions. Mediations, arbitrations, even hold trials are often conducted via zoom or in hybrid live and zoom type trial proceedings. But zoom trials are not the new normal. Not Not yet. Anyway, not until or unless the legislature says so. That's what the Court of Appeal held in Reese versus Superior Court. I think that's how it's pronounced Jeff are YCZ That's how I'm going to pronounce it. Anyway. We'll put the link in the show notes. So yes, the legislature did enact a statute for remote proceedings. That statute is Code of Civil Procedure. 367 point 75. It's implemented by rule of court 3.6 72. But that statute, the remote proceeding statute is only temporary and it's scheduled to sunset On July 1 2023, so keep that red letter date in your, in your minds. The next CMC you attend July 1 2023. After that day trial judges and litigants are not to merely assume that remote testimony will remain a valid substitute for live testimony. And maybe you knew that already. Maybe you knew about section 367 point 75. But here's something from the Rhys opinion that you that is new. And that is, even if the remote proceeding statute does get extended, the court now holds that blanket orders of remote proceedings are not proper. So at the beginning of the case, the trial court can't just say that all of all of the hearings, all the testimony in the case and the trial is all going to be remote. I'm not going to entertain any in person testimony, wow. Instead, each proceeding must get an individualized analysis, whether in person testimony can have a can be validly substituted out in favor of remote testimony.

Jeff Lewis  15:59 
That's just on the issue of testimony. Right. A court is still free to issue a blanket order say non evidentiary hearings can be remote, right?

Tim Kowal  16:08 
I believe that's the case. I think this case was just dealing with testimony because it's dealing with body language and all the intangibles that go along with that argument is is just argument, maybe maybe your table thumping and arm waving histrionics don't don't have the same effect over zoom that in person. But I think those those are not cognizable. So anyway, bookmark Rhys for your next CMC or hearing on a motion to continue a trial. Next case I want to talk about is when litigants are confronted with having to maybe dismiss an appeal. If you ever had to dismiss an appeal, maybe you find that it's not timely or maybe it's not taken from a from an appealable order.

Jeff Lewis  16:48 
Only in the context of settlement. That's the only time I've ever just missed an appeal.

Tim Kowal  16:51 
Okay. So here's the lesson and I have been confronted with whether to do it gives me great heartburn, about dismissing an appeal, because the natural thing you want to do is say I'm dismissing it without prejudice. The courts don't always let you do that. So the issue here is, if you remember one thing from this case that we'll talk about, remember that when an appeal is dismissed, even if it's dismissed voluntarily, usually that dismissal is going to be with prejudice. And that's because of a statute, go to civil procedure, section 913. If you want the dismissal to be without prejudice, then the dismissal order has to expressly state without prejudice. And like I mentioned, I've had some trouble getting courts to go along with dismissing without prejudice. So here's the case in point, it's Bush versus cardanol. It's September 2022. case it's not published, the order dismissing and earlier appeal of a pre trial sanctions order did not expressly state it was without prejudice. So apparently, the there had been a sanctions order of under $5,000, the appellant realized oh, well, that's under $5,000. So it's not an independently appealable order. I'm going to have to wait until a final judgment. So I'll go ahead and just dismiss it. So when the appellant appealed the sanctions order later in the case, after a final judgment was entered, the respondent pounced and said, filed a motion to dismiss the Appeal said citing section 913. And arguing the previous dismissal did not expressly state it was without prejudice. And so that's a that's a good argument under Section 913. But for every rule, there's an exception to here. The exception is that the prior appeal was from a non appealable order. As we mentioned, it's it was from a sanctions order under $5,000. And under the appealability statute nine oh, 4.1. That is not independently appealable. So that meant the Court of Appeal never actually had jurisdiction over that order. So it couldn't dismiss it with prejudice, it could never have affirmed the order because it never had jurisdiction over that non appealable order. So the motion to dismiss was denied. But on the merits, the sanctions order was still affirmed. Anyway. Here's my question for you, Jeff. Back to the top. If you if you are the appellant, the appellant have come to you as as his attorney and asked you should I dismiss this premature appeal that I that I took from a non appealable sanctions order under $5,000. What would your counsel be? Would you say? Yeah, go ahead and dismiss. It's premature. It's not appealable? Because and I'll just tell you, my concern is what if it's what if it's a collateral order? What if it's deemed appealable as a collateral order? Yeah, well,

Jeff Lewis  19:29 
my first order of business would counsel the client, why the hell are we appealing and spending party and judicial resources on a sanctions order of less than $5,000? You know, the first

Tim Kowal  19:38  
one rule of law, that's no fun. Yep. You don't get to take the appeal.

Jeff Lewis  19:41 
The first rule of holes is, you know, when you find yourself in the hole with down the shovel, but sticking to your hypothetical into this case, I don't know that I would ever counsel moving to dismiss the appeal only because it's such a murky area. There are collateral order exceptions in terms of jurisdiction and the worst comes to worse is if you persisted with the appeal, you fight either a motion to dismiss from the from the opponent or perhaps a sua sponte dismissal by the Court of Appeal.

Tim Kowal  20:10 
Yeah, I agree with you when dealing with, with these kinds of things are so many there are too many exceptions to the appealability rule. I know they're jurisdictional, I put scare quotes around it, because there's too many exceptions to the jurisdictional rule. And there can be differences of opinion, it's not quite the non lawyer or the standard as as harassment is, but it is still a little too foggy around the edges for me to go ahead and voluntarily dismissed. I prefer the Court of Appeal to say, your appeal is dismissed as front as taken from a non appealable order, then I can take that to the bank. And if ever, there's a argument later that I should have appealed from the earlier order, I can say, Aha, but I did. And the Court of Appeal said no dice. It's not appealable. So I can take the appeal from the final judgment. Okay, final case that I wanted to talk about. And this deals with the extension rule to have to file your appeal under Rules of Court 8.108. This comes up every now and then Jeff, I hate using these, these extensions, I always tried to avoid using them, if I can help it. So here's the scenario of say you're going to take an appeal, but you want to take a run out a motion for new trial. So here in this case, it's going to demonstrate how many things can go wrong. When you rely on 8.108. The rule that extends your time to appeal when you're filing a post judgment motion, the case is Sharma versus Toyota Motor Sales USA, it's a Fourth District Court of Appeal case not published. But it has some useful lessons here. The first lesson is your new trial motion has to be quote unquote, valid. Here, failing to file supporting papers, arguably made the motion invalid, and an invalid motion does not give you the extension of time to file your appeal. So even though the you know, I didn't I don't think the text of 8.108 actually supports this read that you have to that it has to be that you have to file supporting papers for it to be valid, but who's going to argue that you shouldn't have to file papers to support your motion. Second lesson from the Sharma case. If a challenge to timeliness is raised, be sure to argue your right to an extension under Rule 8.108 Because the appellant here failed to raise 8.108 in her brief, so the extension request was deemed forfeited. I wondered what you thought about this, Jeff, if you fail to to raise the extension in to the Court of Appeal under 8.10. Wait, can you can you really waive that, again, we go back is aren't these jurisdictional rules

Jeff Lewis  22:35 
to come on Team black robe here. If an appellant always has the obligation or the burden of proving that filed a notice of appeal, that the notice of appeal was timely, and any extensions? I mean, I think it's the logical extension of the appellants burden here. So I think I'm okay with this approach.

Tim Kowal  22:52 
You're okay with the approach? I think, obviously, it is, is your professional responsibility to raise all the arguments that support your case. I just feel that that's if the timelines are jurisdictional than the extensions or jurisdictional also, I just have a hard time buying that you can waive or forfeit forfeit these jurisdictional extensions.

Jeff Lewis  23:11 
Let me ask you this in a appellants opening brief. If you don't say when you file your notice of appeal, or you don't say when the clerk's or Notice of Entry of Judgment or the order? Should you be allowed to proceed? Or can the court just say, ma'am, you forfeited the issue?

Tim Kowal  23:25 
Well, you have violated the briefing rules in your in some of your arguments. There are other sanctions for that. But I don't think the sanction is that the court denies itself its own jurisdiction over your case. I don't think

Jeff Lewis  23:37  
it's ever likely that a court of appeal would dismiss a case solely on those grounds. But if there were lots of issues with the case, and it was messy, or the Court of Appeal didn't like the particular facts of the case, I can see them taking the easy way out saying yeah, we don't know if it was a timely notice of appeal.

Tim Kowal  23:52 
Okay. The third lesson from the Sharma case is if the trial court takes your motion off calendar, this is a motion for new trial. Remember, if the court takes the motion off calendar, you should probably assume that it's been denied. That's what the court did here. It took the motion for new trial off calendar because remember, the moving party did not file the supporting papers to the brief. But instead of denying the motion, the court said okay, well, there's no papers, not enough. The supporting papers haven't been filed on taking the hearing off calendar. Does that mean that your motion is denied the Court of Appeal said the appellant should have inferred that it was denied. Jeff, this to bothers me because under Rule 8.1 await the extension begins running from the service of the order, quote, denying the motion not from when you should assume or infer that it's been denied. But from when there's the order denying the motion. I don't know. What do you think about that?

Jeff Lewis  24:44 
Yeah, you know, this reminds me of the case where somebody tried to file a notice of appeal and there's electronic glitch. And the question is when he took reasonable steps to address the issue and you just don't know there's a black hole in terms of when the Court of Appeal or the Superior Court will stamp you Notice of Appeal, this is like that you're, you're supposed to take the burden of dealing with the black hole. And I don't like I don't like that rule.

Tim Kowal  25:07 
Right? The black, the black hole rule. Yeah, all. All all ambiguities are construed against you you must you must act diligently that there's a good practical rule even if it's not really supported by the jurisdictional doctrines. I think that is a very good practical rule that when you're the appellate, you must be diligent. Yeah. All right. We had just a, I think just one one tidbit that I also wanted to cover and this was the Supreme Court. Supreme Court's comment. This is the Chief Justice comment in a concurrence on this case. That said that Court of Appeal case that said that bees are fish for purposes of the California Endangered Species Act. So in a bizarre ruling earlier this year, the Court of Appeal held that bumblebees are fish for purposes of the California Endangered Species Act. The California Supreme Court was asked to review the result in a supreme court denied review. But the Supreme Court does not want you to think that that means it agrees that bumblebees are fish or vice versa, that the Chief Judge especially concurred in the denial review to explain that denials of review are perfectly enigmatic. It could mean the court thinks that the result was was bunk, or that it was brilliant, or that it has no opinion whatsoever. So don't read anything into it. Jeff. denials of petitions for review mean nothing. Got it.

Jeff Lewis  26:23 
So these are fish.

Tim Kowal  26:25  
And that was the upshot, I think. I think there was an LA Times article that that took that exact Upshot supreme court holds that affirms that bees are fish. All

Jeff Lewis  26:34 
right, Tim, I think that wraps up this episode. Again, we want to thank casetext for sponsoring the podcast each week. We include links to the cases, including cases that talk about bees and fish that we discuss using casetext and listeners to the podcast can find a 25% discount available to them, they sign up at casetext.com/calp. That's casetext.com/calp.

Tim Kowal  26:53 
And we love hearing from our listeners if they have any suggestions for guests or topics that we should cover on the podcast, please email us at info at cow podcast.com info at cabl podcast.com. And in our upcoming episodes, you can look for more trial tips and cases you can use in your practice. Yep, see you next time.

Announcer  27:14 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again