The California Appellate Law Podcast

Recent Case Tips on Expert Objections, and Strategy on MSJ & SLAPP Hearings

January 17, 2023 Tim Kowal & Jeff Lewis Season 1 Episode 68
The California Appellate Law Podcast
Recent Case Tips on Expert Objections, and Strategy on MSJ & SLAPP Hearings
Show Notes Transcript

Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly: if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection.

Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial continued. (Might be a backdoor strategy to continuing trial dates.)

And a trial court abused its discretion in hearing a SLAPP motion before a restraining-order motion. The SLAPP ruling meant the case was stayed and the restraining-order issue couldn’t be heard. That’s not right. Trial courts need to make sure those issues are heard with or before SLAPP motions.


  • Is allowing a juror to view the trial remotely a “structural error” reversible per se?
  • Are vexatious-litigation determinations appealable as injunctions?
  • Are city council appointees entitled to more First Amendment protections if appointed by a majority of the council rather than a single councilmember?

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Announcer  0:03 
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. Welcome, everyone.

Tim Kowal  0:17 
I am Jeff Lewis. And I'm Tim Kowal. Well, Jeff and I are certified appellate specialist and uncertified podcast co hosts, we tried to bring our audience of trial and appellate attorneys some news and insights they can use in their practice. If you find this podcast helpful, please recommend it to a colleague. If not, there's always opposing counsel. And a quick thank

Jeff Lewis  0:35 
you to our sponsor casetext. Casetext is a legal research tool that harnesses AI at a lightning fast interface to help lawyers find case authority fast. I've been a case tech subscriber since 2018. And I highly endorse their service listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up at

Tim Kowal  0:56 
All right, Jeff. It's time for cases and tidbits episode. You know, we do so many episodes with guests with interesting perspectives. But all the time there are new cases coming down the pike. We'd like to cover those that have interesting talking about interesting procedural quirks that trial attorneys and appellate attorneys need to know about need a bookmark for their file. Okay, so the first up I want to talk about Bader versus Johnson and Johnson, this is one of those mesothelioma cases. This involves an issue of expert dealing with expert witnesses expert opinions, everyone knows about the Sargon opinion now that you can exclude expert opinions if they're speculative, citing the Supreme Court Sargon opinion but that's not the only objection to be thinking about when you have opinions who have out there theory. So if you're preparing for an expert witness at trial, you'll want to know about Sargon as we talked about Sanchez, you can't use case specific hearsay through an expert and so these are kind of the go to objections. But don't forget about the 1970 was a 1976 opinion in Kelly. So here's here's what happened in this beta versus Johnson and Johnson case it was a talcum powder manufacturer were the defendants they raised Sargon. To the point one of the plaintiffs expert witnesses, the plaintiff wound up recovering a $12 million verdict based in part on this experts novel opinion that fibrous talc causes cancer. The defendants had argued that the broader consensus of experts did not agree with the plaintiffs expert that this was too novel A theory was outside of the of the consensus of science. So the defendants objected on the basis of Sargon Sargon enterprises versus University of Southern California. That's the 2012 Supreme Court California Supreme Court opinion. But that was the wrong objection. The Court of Appeal held, the court noted that Sargon does not speak to whether a theory has achieved a consensus in the field sufficient to render it generally accepted. So if the defendants had wanted to object at the experts opinion was a novel theory and not generally accepted in the scientific community, their motion to exclude did not challenge his testimony based on Kelly and its progeny. So that was people versus Kelly. We'll put that case in the show notes. So the upshot is, if you've got objections to an out there theory by an expert witness, don't stop at Sargon. Sargon is not a substitute for objections to novel and not generally accepted scientific theories to make sure people versus Kelly is in your expert witness toolkit. And don't forget about Sanchez and Sargon and Sanchez. That's right. Got to get them all in there. All right. Next case up, I wanted to talk about whole versus Superior Court. This deals with the question I have this under the header, a timely motions for summary judgment is entitled to a timely hearing. That was the holding out of the fourth district division one in Cole versus Superior Court. So what happened here, this is a familiar story for all trial attorneys, you file your motion, you're ready to go. You want to get that hurt in the gearing data set months and months in advance. In this case, it was a summary judgment motion, those are always going to be set months and months in advance. The problem was it was months and months so far in advance out there on the calendar, it was even behind the trial date. Well, that's a problem. No point in doing a summary judgment hearing if you can't get it heard before the trials. So the moving party filed an ex parte application to have the MSJ hearing advanced to before the trial date. And the trial court said no, you waited too long. You had long enough to file your MSJ I've got calendaring problems. So I can't help you. The moving party took this up on a writ petition to the Court of Appeal. And the court granted a peremptory writ, and said I got to read him it's about a gutsy move. Finally I read on this, it is because you're probably going to lose and then even if you win, as the petitioner did here, you got to go back to a trial judge who's probably not you're probably not that trial judges favorite person anymore. But the Court of Appeal published its opinion granting the peremptory red court held that the trial court's calendaring issues are not a basis on which the trial court can refuse to hear a timely filed summary judgment motion. The court published the decision, quote, to provide guidance on the deadline for filing a summary judgment motion that is served electronically. There was an interesting issue about it was served, you know, almost exactly 107 days. So it's, you know, 75 days notice plus 30 days before the trial aid. So that's 105 days and it was served 107 days it was served electronically. So you got the had to be served to court days ahead of that. And it was served right on the dot. Not a day too soon.

Jeff Lewis  5:11 
So you entitled or summarizes cases a timely MSJ is entitled to a timely hearing. I wouldn't summarize it as a last minute. MSJ is a backdoor way to get a trial continued, because with this published decision, seems like trial courts are going to opt to simply kick out a trial date.

Tim Kowal  5:26 
Yeah, that's a very strategic way of looking at it. But yeah, that's true. And that was the alternative relief that the moving party sought here either advance my hearing date on the MSJ, or pick out the trial date. And that was exactly why the opposing party opposed it. But there are other cases, this case reminded me that that local rules and local local rules cannot override the Code of Civil Procedure and the rules of court concerning calendaring of motions. So there have been other cases where trial courts decide have decided, you know, it would be to everyone's best interest if they met and conferred before they filed a motion for summary judgment. I can't do it. Court of Appeal says, Look, we sympathize that makes sense to us. But that's a legislative determination is interesting. I'm doing some research on this. And this other presentation, Jeff and California is the minority of states in which the legislature decides court procedure, the majority of other state courts, and we in California follows the federal model in that regard where Congress decides court procedure, but most other state courts, their internal rules are governed by the judiciary branch itself. That was interesting to me. Well, maybe we'll talk about that more in the future. All right. And the last case that I wanted to talk about before we get to your three zingers Jeff I File this under the heading vexatious litigant determination is appealable. And we had covered a case a few months ago where the opposite was true. But here's what happened in the published opinion in Blizzard energy versus Schaefers. And, you know, I like to think that our listeners are probably not a lot of vexatious litigants. But I always find these issues interesting about you know, how the court decides what is appealable and what's not. So what happened is that a frivolous cross complaint the holding is that a frivolous cross complaint counts toward the five frivolous lawsuits that an impro litigant may file before being deemed a vexatious litigant. So the trial court had refused to declare Schaefers a vexatious litigant because one of his lawsuits was a cross complaint and the trial court thought does that does a cross complaint count as a lawsuit? I don't think so. It's no it's not one of you haven't filed five frivolous lawsuits, so you're not a vexatious litigant and Blizzard energy challenged that, and the Court of Appeal agreed that yeah, frivolous cross complaint counts as one of your five but how did Blizzard convince the court to grant review of that order? Because the court wound up parting ways with the first district opinion from earlier back in 2022, where the second district here held that an order declaring a person to be a vexatious litigant is the equivalent of an injunction. Remember under a Code of Civil Procedure nine oh 4.1. The appealability statute orders granting or denying injunctions are appealable orders. So that was the angle that Blizzard energy pursued here that well, a vexatious litigant determination is not among the appealable orders, but it's kind of like an injunction order where it's telling when you declare a litigant evict vexatious litigant, you're saying you can no longer you may not file any more lawsuits, that's like an injunction. And this here was was an order denying an injunction. So it's appealing. Yeah.

Jeff Lewis  8:16 
And yet for purposes of deciding the appropriate standard of review, you know, typically injunctions are reviewed with deference, either abuse of discretion or substantial evidence from factual findings. And here, the standard of review was de novo this legal questions. It's just odd. It seems like the court really wanted to review this order to construe it as an injunction for purposes of appeal ability and jurisdiction and but not an injunction or not the traditional standard of review for injunctions?

Tim Kowal  8:43 
Yeah, yeah. You know, and the case we had talked about last year, the same argument was raised, and that was an order binding that the litigant was vexatious. And so the vexatious litigant appealed that and said, Hey, I'm not vexatious, I want review of this order. And it's like an injunction. So Court of Appeal, you should review my direct appeal as an order reviewing an injunction and the court said, Nah, it's not an injunction, and it's not reviewable at all. So your host and I, if you remember, Jeff, I disagreed with that ruling. Last time around I thought that it should have been reviewable as an injunction, at least the appellant had cited, you know, a presidential authority or published authority on that point that held that a vexatious litigant determination is like an injunction for purposes of appealability. But now looking at it again, I'm not so sure orders, orders that restrict or require actions in the real world injunctions are telling someone to unlock the doors to a business partner or hand the passwords over give access to the bank account, that sort of thing. Those are different from orders that restrict or require actions in court world orders requiring a corporation to pay dividends. That's an injunction. And so it's appealable orders requiring a corporation to produce documents in response to discovery and discovery order. Is that an injunction? Jeff? Not a chance, right? Yeah, what else is the difference? The only difference I can detect is One affects the part of litigants actions in the real world and the other effects their actions in court world and usually orders governing conduct in the court are not considered to be injunctions. And so I tend to think that that may be that first, let me that the decision that we reviewed last year was correct that vexatious litigant determinations, whatever whatever else, you may think about their review ability, they're not injunctions. Got it? Well, it's

Jeff Lewis  10:25 
good to know your mind can be changed. And next you'll be deciding that slap fee awards are not automatically or are automatically stayed on.

Tim Kowal  10:34 

That's right. And by the way, the that that opinion that we covered was the Luckett decision, and that was on episode 42. We'll put links to those in the show notes.

Jeff Lewis  10:43 
All right. So now I've got three cases that caught my eye this week that I wanted to discuss really quick and those three cases won't be any surprise your audience, one is a slap. One involves the First Amendment, and one involves zoom proceedings for a trial. So let's start first with the slap issue a super interesting one called White V. Davis. Now I am seeing in my practice increased number of anti slap motions filed in response to restraining order proceedings. These are not civil lawsuits, but special proceedings, like a civil harassment restraining order domestic violence restraining order, elder abuse restraining order, and in these cases I've been involved in the trial courts, not careful and anti slap motion can be used strategically by the respondent as a strategic motion against credible claims or a smack. Consider that if the trial court hears the anti slap motion for the restraining order is heard, the loser of the slap motion can immediately appeal and stay the restraining order proceedings from ever commencing and that can defeat the purpose of the special proceedings to get an expedited restraining order without all the trappings slow down but traditional lawsuit, what do you do about these eating policy issues and wanting meritorious anti slap motion third quickly and you want meritorious restraining orders heard quickly. This was the issue in white V. Davis, this is a January 5 case. And the fourth district held that the trial court abused its discretion by not using its inherent case management tools to hear the anti slap motions concurrent with the restraining order, or granting a restraining order first having it in place and hearing the anti slap motions that get so if you are an attorney representing a party seeking a restraining order, and one of these special types of proceedings, and the other side attempts to violate non meritorious slap motion like a smack to obtain a delay in the issuance of the injunction, just take a look at why it's an interesting procedural case. And it pumps up the power of the trial court to manage its own docket.

Tim Kowal  12:33 

Yeah, are the is the stay imposed by the anti slap motion that can be set aside in the discretion of the court.

Jeff Lewis  12:40 
So you know, essentially the stay only really relates to discovery in terms of filing of the motion, and then Governor remain stayed in terms of because of filing of an appeal. And the real question, is this the trial or have the power which does trial court have the power to do anything once the anti slap motion has been heard it denied? I don't know if there's any cases on point there but the solution really hear the anti slap motion with any restraining order. That's that's the elegant solution.

Tim Kowal  13:06 
Yeah. So make sure you get these other make sure you get the restraining order teed up and on the courts docket before the anti slap motion is heard.

Jeff Lewis  13:12 

Yeah, exactly. Exactly.

Tim Kowal  13:16 
That is interesting. And I did see the white case come up on my feed as well. I thought that's a very interesting issue. I'm glad you bring brought that to our attention.

Jeff Lewis  13:22 

Thank you for letting me talk about a slap case. I love slap cases. Alright, so next one I want to talk about is in your neighborhood Lafosse versus city of Huntington Beach from the Ninth Circuit from January 5. And this concerns the removal of a volunteer on an advisory a city advisory board for political reasons. I read the headline on this case, I immediately thought that that can't be right. But eventually I came around and I think I agree with what the Ninth Circuit did here. So in this case, we're going to be talking about a city council member who is the a pointer and a volunteer who gets appointed to a City Commission and advisory body that's the appointee. And here the volunteer appointee was photographed at a political rally standing next to someone from Antifa. And the appoint or the city council member asked the appointee the volunteer to give a statement denouncing and Tifa and the appointee did so that the statement was not strong enough or not to the liking of the a pointer council member. The council member dismissed the appointee from her position on the board. The appointee then filed a lawsuit arguing two things that she was removed in retaliation for First Amendment protected activity and also that somehow the First Amendment was violated through compelled speech when the city council members asked her to give a statement denouncing Antifa so the appointee lost at the district level. And that result was affirmed in that circuit. And it was interesting. The thing I found interesting about this is that your city and my city differs in terms of how they appoint people to advisory boards in my city planning commission, other advisory boards, the city council votes out large or all five members of our city council vote and that's how the people are appointed but in your city, one council member appoints one member to advisory body and that member is the face or spokesman or political Voice of that city council member, it's an extension

Tim Kowal  15:02 
of that person. Yeah. And that changed the First Amendment analysis. Do you think if the appointee is appointed by the council at large?

Jeff Lewis  15:10 
Yeah. So let me let me quote the Ninth Circuit. We agree with the district court that the critical issue is whether lapis was effectively a political extension of the council member and concluding that under this particular statutory scheme, the appointing was effectively the city council members, quote, public face,

Tim Kowal  15:26  
we affirm the interesting. Yeah, yeah. That came across. Yeah, I wasn't planning to talk about that. But it came across my desk as well, because that's out of my city. Yeah, that's interesting. I was trying to imagine, you know, this particular city council person is is not my political persuasion. But I was trying to imagine, and I tend to agree with the outcome, I tend toward the more free speech absolutist, but I thought I followed the the Ninth Circuit's rationale here, and it seemed right to me, I was trying to, it's always important in these kinds of things. Imagine, imagine it on the other foot? Would I agree? Yeah, I don't know. So what do you think, Jeff, with this outcome?

Jeff Lewis  15:59 
I think your city needs to change his policies for appointing people. That's the first thing. But yeah, I tend to agree with the Ninth Circuit in this circumstance, for this particular way as choosing people to serve on committees, it's more of a political extension. And that is the deciding factor. But in my city, is someone who is put on a planning commission, let's say, by a vote of three out of five council members, that person should not be able to be removed based on First Amendment activity. Just that's my view. So go ahead and go ahead and start reforming your city charter. Okay.

Tim Kowal  16:31 
But and just just a commentary on that, again, I haven't looked into this. So this is just based on recollection. But it was only a year ago, a year or so ago that we had one of the the appointees to a board. It's a fairly innocuous board. It's the Huntington Beach, Fourth of July Planning Commission. I should be careful here. And I'll at least give a disclaimer. My wife is the chair of the Fourth of July Planning Commission, one of the other members of that commission was removed a year ago for maybe for comments made on social media. And I thought, well, that's that's interesting. Now considering this case, if that person is an extension of the city council person, city council person can't be removed. So can that council members appointees be removed just by majority vote of the board? Yeah, interesting. And

Jeff Lewis  17:11 
by the way, your city charter statutory scheme says people can be removed from a commission with or without cause I think that was another important factor in the Ninth Circuit. Yeah,

Tim Kowal  17:20 
yeah. And of course, at the at the bylaws of the charter, allow for ordinances allow for procedures for removal, then I'm sure I assume those were followed.

Jeff Lewis  17:28  
Yeah. All right. Let me talk about the last case, as we wrap up here. The third case I want to talk about is US versus night. It's a Ninth Circuit decision. And this case caught my eye because involves zoom proceedings during COVID. But also, I'm always interested in the distinction between the federal world structural air where an error results in automatic reversal or non structural air where you have to show prejudice similar to state court decision. And so this was a criminal case where one juror watched the first two days of a criminal trial on Zoom was not present in the courtroom. And the criminal defendant stipulated at trial to the remote proceedings, and the defendant was convicted and appealed and the Ninth Circuit sidestepped the question of whether it was appropriate or not to have a remote proceeding because the defendant stipulated it's okay for this jury, that'd be on Zoom. So the question the case was assuming it was, err, to allow a juror to participate remotely, is that air structural or not? And the Ninth Circuit looked at it and said, I thought it kind of been down week analysis, the Ninth Circuit said, this is not the kind of air that results in commonly results in prejudice. And so they decided that in the absence of a specific showing in a specific showing of prejudice, this is the kind of error that is waivable. So when a defendant criminal defendant waives the right to have all the jurors present in the courtroom board proceedings, they can then in an appeal, argue, I think it was so such an important constitutional right. They didn't have the ability to waive it.

Tim Kowal  18:54 
Yeah. Remind me, Jeff, I remember skimming this very quickly. I recall that the court had listed some other types of structural issues that were not waivable. Do you recall examples of the kinds that are not waivable?

Jeff Lewis  19:04  
Exactly, you know, the right to an attorney, I think was one of them. The right to confront witnesses was another. I mean, one of the big ones that we learned about in law school.

Tim Kowal  19:13 
Yeah, so this was this was not a waivable. One. I don't know what the standard is for deciding what what is a waivable structural issue and what's not? Yeah,

Jeff Lewis  19:22 
I think this one was based on the record before it, there wasn't a whole lot of evidence that how this jurors experience in jury proceedings was different than the in person jurors. And on that basis, the court didn't have a lot of ammunition to work with in terms of concluding that this is the kind of error that should be structural.

Tim Kowal  19:41  
Yeah, if it is structural, you know, those are that's a determination that it defies review for harmlessness. And so it's basically just up to the judges imagination is this sort of thing to end if a jury had been excused for the entire trial, not excused, but allowed to observe the trial remotely for the entirety of the trial rather than I think it was just two days you You're Yeah. Would that be a structural? Or what if the entire jury was permitted to observe remotely rather than in person? That seems like it would be structural? Yeah. Yeah. I

Jeff Lewis  20:09 

think the fact that the defendant stipulated here and the fact that it was only two days, not the entire trial means maybe this won't be the final word on the subject of whether these are structural or not. But the record here wasn't sufficient for the ninth circuit to make any new rules on this.

Tim Kowal  20:22 
Yeah. Not not the best case to launch off a new finding of a structural error. Okay, no, yeah. Great. Those are three great cases. Jeff. Now, do we have a couple of tidbits you want to share with the audience?

Jeff Lewis  20:32 
I have one I was actually interviewed earlier this week involved saw this case back east and as a big law firm, the pro scour law firm. Imagine Tim used to be a computer guy in a prior life. Yeah. Imagine you're the head of it at a big law firm and the CEO of number two guy, a law firm comes to you and says, Hey, I've got this thumb drive. I want to put stuff on this thumb drive it guy, would you please disable the security parameters that usually prevent removable storage devices from being used in this way? And the IT guy says why? And this law firm opposite the number two man says, an outside vendor needs it. So it does it IT guy does. It removes the security, the CEO of a law firm downloads all of the firm's data regarding partner compensation practice groups, and productivity of clients and practice areas, not client data, but productivity of the firm. And it turns out, the CEO then decided to delete 1000 emails involving him in violation of a litigation hold that had been placed on the computer and gave notice that he was quitting. And he fired up an email to somebody saying, boy, my employer is not gonna be happy when they learn who I'm going to work for. So under those facts, the law firm back east by the lawsuit, got a restraining order temporary restraining order preventing him from using that thumb drive or sharing these files in order to show cause explain himself to the court as to what he did and why he did it. And I think today or yesterday, he filed his response saying, oh, you know, let's get ready to go on vacation. And you know, everybody likes to work on vacation. So I downloaded those files so I can work over my vacation. I don't think the judge has ruled yet on the preliminary injunction just ruled on a restraining order. But that's where it is. I bring this case up because an interesting security issue for big firms and little firms in terms of how I secure their data, and how it's usually good to have a check to that not just one person can access key sensitive data like that.

Tim Kowal  22:18 
Yeah, yeah, no kidding. That's, that's a scary story. The CEO said that I was just taking the thumb drive to work remotely. But did he explain also why he simultaneously deleted 1000s of those emails? On vacation? Yeah, it was, you know, delete 1000 emails before you go,

Jeff Lewis  22:34 
when there's a litigation hold because of pending litigation about those emails. Yeah.

Jeff Lewis  22:38 
I don't know that. He's explained that.

Tim Kowal  22:40 

Yeah, no, that is a good cautionary tale for for having good internal procedures. And yeah, like you said, having like a two step check, you know, advising your IT people, you know, don't just take on the authority of one person to override important security parameters.

Jeff Lewis  22:54 
Yeah, that's the only tidbit I had this week. Do you have anything?

Tim Kowal  22:57 

No, no, I think we can we can wrap it up for this week. So let's thank our sponsor once again, casetext for sponsoring the podcast each week when we include links to all the great cases we talked about, we use casetext for our case, database and listeners of the podcast can find a 25% discount available to them if they sign up to casetext at That's L P.

Jeff Lewis  23:21 

And if you have suggestions for future episodes, or an explanation of why someone would delete 1000 emails, please email us at info at Cal And in our upcoming episodes of the tips on how to lay the groundwork to win preparing for trial.

Tim Kowal  23:34 

All right, see you next time.

Announcer  23:35 

You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases the 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 That's c a l Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again