As the prevailing party defending an order on appeal, you know the odds are in your favor. Statistically, 75-80% of judgments are affirmed on appeal. But 25% is still worse odds than Russian Roulette.
So on this episode of the California Appellate Law Podcast, Jeff and I discuss some tips to seize maximum advantage of your superior position on appeal. The tips include:
👉 Appellants often appeal from non-appealable orders. Or they file their notice of appeal untimely. Check for these grounds for a motion to dismiss.
👉 Enforce the judgment, unless it is clearly stayed. Enforcement can put a lot of pressure on an appellant.
👉 Are there record defects? Jeff and I debate the different approaches. You can either counter-designate to add missing items, or you can argue that the appellant failed its burden to furnish a complete record.
👉 Help out the trial court’s reasoning. A judgment is appealed for its result, not its reasoning. If there are reasons the trial court didn’t think of, raise them in your respondent's brief.
👉 Did the appellant fail to cite authority? Was the opening brief scattershot without clear organization or well-developed arguments? You might argue that these poorly identified issues and arguments are forfeited.
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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
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Other items discussed in the episode:
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 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
And I'm Tim Kowal both Jeff and I are certified appellate specialists and as 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. As always, if you find this podcast helpful, please recommend it to a colleague. And a quick thank you to our podcast sponsor
Jeff Lewis 0:35
casetext, casetext is a legal research tool that harnesses AI, and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019, and I highly endorse their service listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up a casetext.com/calp. That's casetext.com/calp. Now, Tim, normally we do this show you spend about an hour scaring the hell out of appellants or potential appellants, on all the different ways they might possibly screw up their appeal. I do my budget. Today, I'm gonna take a little different approach. And we're going to tackle appeals from the respondents perspective, the easygoing, stress free, relaxed position of having one at the trial level, sitting back and watching the appellant tried to mount all the challenges of prosecuting an appeal. And we have a top 10 list of issues that respondents should keep an eye on.
Tim Kowal 1:30
Yeah, yeah, you know, the respondents usually are just resting on their laurels of their 75% likelihood of prevailing on the appeal. Let's have an episode devoted to helping those respondents maximize their chances by taking the most effective potshots at the appellant with an eye toward being mindful about all of the onerous duties that the appellant has on on appeal and spotting. Whenever that poor wretched appellant has failed in any of those duties can take a maximum making maximum advantage of it? Right.
Jeff Lewis 2:00
Okay, here we go top 10 list. Here's tip number one, have you double checked as the respondent Have you double check that the notice of appeals actually from either a final judgment or an order that is appealable. Normally a judgment following a trial, it's no brainer. It's appealable. But there's some nuances regarding orders or orders terminating cases short of a trial, but I wanted to review real quick. At the top of the list. Orders granting summary judgment are normally not appealable. Wait for the ultimate judgment. Similarly, order sustained dimmers are not appealable. You wait for the judgment, orders granting or denying anti slap motions are directly appealable. But here's the twist orders granting or denying slotback motions, that is an anti slap motion to strike an action that is a slap back are not directly appealable. So
Tim Kowal 2:50
almost every other order relating to a slap is appealable. Except for that one or orders granting or denying anti slap fees where the underlying slap order is not appealed. It's one of the other nuances that those are not necessarily appealable, although they may be appealable as a collateral order.
Jeff Lewis 3:07
Right. Right. Right, right. And then there's certain orders are only reviewable by a statutory writ. So if you're a respondent, you've noticed the other side's filed a notice of appeal and is attempting a direct appeal of certain types of orders. You want to keep an eye out for orders on motions to expunge a Liz pendants, denials of motion to quash service proceedings to disqualify judges proceedings on Public Records Act requests. And, as just referenced earlier, an order denying a special motion to strike a slap back. By the way, that's a tricky 1425 dot 18. Subdivision g of the anti slap law says that an order denying a motion to strike a slap back claim or granting and as to less than all claims you can proceed by with statutory read and an order granting a motion to strike a slap back claim its entirety, you could proceed with a direct appeal from a judgment of dismissal. But the order itself granting a motion to strike a slap back is not an appealable order. I think I need a Venn diagram there.
Tim Kowal 4:06
Yeah. I need visuals for that one. Jeff has Yeah. So I think the idea behind all of this is that if you suspect that that your opponent appellant has taken an appeal from an order that's not appealable take an appeal from an order that is only reviewable by way of writ. Be mindful of that, but maybe you want to sit back and stay quiet for a while until the time to appeal from the actual appealable order or if it's order reviewable only by read wait until that time has expired before raising that issue. And then the opportunity for review will be kaput, and the appeal will be toast.
Jeff Lewis 4:39
Right a motion to dismiss filed on day one at one after the order. I'm with you. I'm with you. And that's fine late in evaluating whether or not an appeal has been made from an actually appealable order or even a judgment if there's any claims remain to be litigated. Sometimes you have bifurcated claims or you have cross complaints and complex litigation. If there's any claims or remain to be litigated between any two parties that are parties to the appeal. It might be that a discretionary writ is the only way to seek review.
Tim Kowal 5:07
Yeah, yeah, I know these can lead into tricky waters here. So if you have doubts, this is a good time to consult an appellate specialist about whether the order is appealable. Whether you have to wait for a formal judgment whether you have to do take some action before there's a final judgment. And then And one final point on this, Jeff, in addition to carefully reviewing the Notice of Appeal, also look for the appellant Civil Case Information Statement that will be filed in the Court of Appeal typically do 15 days after the notice of notice of appeal has been served on the parties. That Civil Case Information Statement is supposed to attach the order being appealed from, and it's all supposed to cite the authority that supports appealability. So that's a good time to really sit down and assess whether you've got any defects on the appeal that you want to on the appeal ability or the timeliness of the appeal that you want to pounce on appellate. Yeah. Okay. All right. Tip number two, Jeff, is the Notice of Appeal timely, this kind of dovetails in what we were talking about with appealability. We also want to as the respondent to pay close attention to whether the appellate has timely appealed from the order, the absolute no matter what jurisdictional 60 day time limit for filing, a notice of appeal is triggered when one of two different documents is filed either the Notice of Entry of Judgment or a file stamped copy of the judgment served by the clerk or any party. If one of those two documents neither of those two documents has been served, then the default 180 day rule applies in which to take the notice of appeal. If there was a motion for new trial. If there's a post trial motion, some of those can extend the deadline to file the appeal. So look for motions for a new trial motions to vacate the judgment are for J and O V, a motion for reconsideration. Those may all extend the timeline to take the appeal, be ready to pounce if any if the appellant filed an invalid post trial motion such as an untimely motion or a famous one is a motion for reconsideration that is not supported by a declaration. If a motion for reconsideration is just based on new law, but doesn't have a declaration attached to the motion, it's technically invalid. That's a Branner versus UC regents case.
Jeff Lewis 7:21
Or a motion for reconsideration of an order granting an anti slap to specifications entirety. motions for reconsideration are not allowed for such orders, and therefore it's not valid in terms of extending the time for appeal.
Tim Kowal 7:33
That's a good point. We've talked about that before on the podcast that after a final order like a an appealable order, such as you mentioned an anti slap order or a final judgment, motions for reconsideration cannot be heard there's beyond the jurisdiction to reconsider a final order, right, the court can set it aside or vacate it or grant a new trial under those collateral review statutes, but not under CCP 1008. And also ask if you're the respondent whether any of the five exceptions apply that were described in the guard versus guard decision. There are some cases rare, but they do happen where an otherwise untimely appeal may be found to be timely. These five rare exceptions are discussed in the guard decision. First one is in times of public emergency. Second when the untimeliness was caused by a superior court clerk wrongly rejecting a timely submitted notice of appeal. Third is where an institutionalized and self represented litigants a notice of appeal is deemed to be filed on the date it is put in the prison mailbox. The prison guard rule once you hand it to the prison guard, the notice of appeal is deemed to be filed for most practitioners, very rare, bordering on vanishing when that exception would apply, for a rare exception to the untimeliness. To the timely this rules is in criminal law, appeals and juvenile dependency appeals ineffective assistance of counsel in failing to file the notice of timely appeal can provide grounds for allowing the appeal to proceed. We've discussed that before on the podcast in array A our 2021 case, there may have been a fifth exception, I think was the exception we talked about and guard. If that was the one that talked about the electronic filing rules. If you've encountered a problem with the electronic filing system that resulted in your Notice of Appeal being filed untimely, then you can get relief from that untimeliness by immediately filing in the Court of Appeal a motion with a supporting declaration explaining why the electronic filing system broke down. But those but not every excuse will carry the day as we found another recent case. Well, we can talk about that maybe another time. But those are the five exceptions to the untimeliness rule. Otherwise, if you see an untimely appeal, be ready to pass. Those are almost always good argument to get an appeal dismissed. Right,
Jeff Lewis 9:49
right. And then tip number three, as the respondents counsel, do you need to file a protective cross appeal and do you have time to file a protective cross appeal. Now, the time limit to file a protective cross appeal is extended by 20 days after the clerk serves a notice of filing a notice of appeal. And it turns out the grounds for a protective cross appeal are fairly narrow. I don't think I've ever had a situation like this as a respondent. It's where the Superior Court vacates a judgment or grants a new trial or judgment and oh V. In that instance, a respondent has to file a protective cross appeal, just in case the judgment is reversed. Or I should say, the Yeah, in case that the judgments vacated.
Tim Kowal 10:38
I have seen this come up before. So I've seen this come up before in reviewing a potential appeal. And the situation is where you know, you're so happy that the judge has granted your jno v. And you get to be the respondent on appeal, not the poor pitiable appellate fighting the desperate battle to get the GN o v reboot reversed. And so as the the successful prevailing party on the J and O V, you forget that lurking underneath that victorious J and o v is that dirty, mean old judgment on the verdict where the jury had decided against you and you'd like to think that that mean, old judgment on the verdict is gone. And the court fed it into the shredder? And it's it's it'll never resurface again. But no, it's still lurking there. And if you're Jay annovi goes away on appeal. What do you think is going to take its place, but that mean all judgment on the verdict? So that's when you will be sorry, if you did not take a cross appeal from that underlying judgment, because if if the J no v goes away, then the court you're going to want the court to review the judgment on the verdict and say that it was defective for X y&z reason.
Jeff Lewis 11:38
Yeah. Yeah. Interesting. Interesting. You've handled one.
Tim Kowal 11:42
Okay. Tip number four. If you're the respondent, ask yourself Are there grounds for a motion to dismiss the appeal? So there are a few different ways that you could think about getting the appeal dismissed in no particular order here, the DIS entitlement doctrine. Maybe that's the first one we discussed, because it's the most fun. They're somewhat rare, though. They happen when the appellant has been flouting court orders or otherwise conducting himself or herself or itself in a way that the Court of Appeals should deem that appellant to have waived or forfeited or otherwise be disentangled from the right to appeal. So this comes about in some cases, most often when the appellant is flouting court orders such as refusing to respond to debtor discovery that happens a lot. You don't need to get a contempt finding from the trial court, but it doesn't hurt to get the contempt finding at least exhaust your remedies to go about getting that another way of getting the appeal dismissed is ask yourself has anything occurred post judgment that would render the appeal moot? So ask yourself if there are mootness grounds that weren't getting the appeal dismissed, look at subsequent or superseding orders that may be make the underlying order on appeal mood, has the subject matter of the appeal been destroyed or otherwise affected so that the Court of Appeal can now afford no effective remedy? Has there been some other change in the circumstances that the Court of Appeal would look at and say, Well, what do you want us to do now? So this is a tricky one, because there's there's almost some way that the Court of Appeal might be able to afford some remedy. And sometimes it just, it will avail itself of any circumstance. And sometimes even if it does look like it's moot, they they'll want to reach the issue anyway. Yeah,
Jeff Lewis 13:22
yeah, that's true. I've seen it come up quite a bit in family law cases where a support or custody order is appealed and appeals take a long time. And in the meantime, someone's gone back in and gotten a different order from the trial court of appeals usually mooted?
Tim Kowal 13:37
Yeah, yeah, I've seen motion to dismiss for mootness that looked like they ought to have succeeded, and they were denied and vice versa. So your mileage may vary on motions to dismiss on mootness grounds, another ground on which to base a motion to dismiss because ask yourself has the appellant waived its right to appeal by acquiescing in the judgment. So for example, have damages been paid in whole or in part, even without judgment enforcement? This is why, Jeff, you and I both talked about on this podcast that a best practice as the appellant when you're deciding to pay and satisfy the judgment during the appeal, tender that payment under a cover letter stating that the payment is being made in response to the respondents mean and aggressive judgment enforcement efforts, and then reservation of all appellate rights. And if the appellant has not done that and just happily paid the judgment, then that may be an argument that the appellant has waived its rights to appeal by acquiescing in the judgment. Another way This may happen is ask yourself has the appellant obeyed injunctive or equitable relief? This is a big one. And it's the reason why there is that automatic rule that mandatory injunctions are automatically deemed stayed on appeal, in most cases where an injunction is complied with. Then the court of appeals left asking yourself well, what do you want me to do now? You've already done the act that you're asking me to prevent you from having to comply with so there's nothing else for us to do, but This puts you in a real catch 22. Because if you comply with the injunction, then the appeal is moot. And if you don't comply with the injunction, then are you in contempt of the court's order? So if there is any question about whether an injunction is stayed, or whether complying with it can moot the appeal, you really need to get in there and leave no question about whether it is staged, you may need to file a motion file some declaration force that issue in the Superior Court whether there's a stay in place and if the court doesn't agree with you, you may need to consider a writ of supersedeas. Yeah, this is if you're the appellant. If you're the respondent, then you're just kind of sitting back on the sidelines, you can take the passive position and say, No, there's no stay. You got to comply with that order. And put that appellant into that hot seat position. If they don't do everything. The Pella gets to sit back and watch the appellant dance. Yeah, yeah. Okay. Here's another one. I added to your outline, Jeff, is the appeal frivolous? So here we're back putting on the respondents hat. Ask yourself if the appellant briefing if the arguments and issues raised are frivolous, do they have colorable merit? And consider filing a motion to dismiss if the reply brief offers no colorable merit in response to the brilliant arguments that you made in your respondents brief? And Jeff, one thing I like about this strategy, if it applies, if you really do think that the respondents arguments are just no good, if you ask for monetary sanctions and your motion to dismiss, the court cannot grant monetary sanctions on appeal unless it invites an opposition. So the courts invitation of an opposition to your motion to dismiss or lack of it an invitation is a piece of information that the court can give you about what it thinks about your arguments and about the the appellants, arguments, it's not a lot of information. You know, it's the court saying that the court invites opposition at saying, you know, maybe this appeal really is frivolous. And if the court doesn't invite opposition, then you're probably doesn't think that it's frivolous, obviously. So it's not a lot of information. But given the court is normally sphinx like about and does not usually show its cards, you know, that little bit of information that you can get through that procedure is nothing to sneeze at.
Jeff Lewis 17:06
Absolutely. And this is an argument that you probably would already incorporate into our respondents brief anyway. So the additional work of doing a motion either motion dismiss or motion for sanctions, isn't that much work? And, by the way, an interesting rule here you touched upon is that the appellant is not allowed to file an opposition to a motion for sanctions unless invited, although I have seen lots of appellants file opposition's without invitation.
Tim Kowal 17:34
Yeah. Do you ever see any pushback any reaction from the court about that?
Jeff Lewis 17:38
I've never seen a court reject an uninvited opposition.
Tim Kowal 17:41
Yeah, nor have I can't. So if they do file the opposition, then then they're getting the last word yet again, which if they're otherwise allowed to do but if you really do think that the appellant has not responded to your very good arguments in the respondents brief. And then you file a motion to dismiss and say, look at these great arguments that they didn't respond to. You're giving them but one more opportunity to respond to them.
Jeff Lewis 18:03
Yeah, yeah. All right. Let's talk about tip number five designation of the record. Yeah, normally, it's the appellants burden to procure an adequate record for review, and so respond, like can kind of sit back, but here's a few tips to make sure you don't run afoul of some procedural rules. The appellants designation, the records do 10 days after the notice of appeal is filed. The respondents counter designation is due 10 days later.
Tim Kowal 18:32
Yeah, Jeff, have you ever done a counter designations as a respondent and you've got the appellants designation of record and you see that there's something that they left out that really needs to go into the record on appeal? Have you ever done that in a counter designation?
Jeff Lewis 18:46
Not as to documents in a clerk's transcript but as to missing reporter transcript days? I have?
Tim Kowal 18:52
Yeah. Here's usually the decision tree that goes through my mind is, well, yes, I could supplement in a counter designation and make the record complete. Or I could just sit back and be quiet. And then when it comes my turn to file my respondents brief, I can point out that the appellant did not fulfill its duty to make a complete record on appeal. And if there is any substantial evidence issues raised and those were all forfeited, if there's any abuse of discretion, issues raised where the court's consideration might have been revealed in the missing portions of the transcript that the appellant didn't designate. That would be ground for a forfeiture of those issues. Yeah,
Jeff Lewis 19:27
if you're in one of those courts that strictly applies those principles. It doesn't want to just hear the case. Yeah. That would make me nervous. That would really make me nervous. You raise an interesting point. I had a case recently, against a very well respected member of the appellate bar. I represent the appellant he represented the respondent, and there were some my client was improper and designated less than all the days of trial transcripts. And so I did a motion to augment when I came into the case. And I asked the other side, the other side, will you stipulate to initially, he said, Yeah, I'll stipulate why not and then He came back and he goes, You know what? You're the appellant. It's your burden to procure the record. I'm gonna make you file a motion. I had a really negative reaction to that. First of all, the reason you and I are in the appellate bar 10 is we're collegial. We get along. We don't normally seek sanctions against each other. And we get along, we stipulate to things. But on the other hand, there was a point about the appellants burden, and if it hadn't been designated originally, maybe the respondent shouldn't do anything to help the appellant there. What do you think?
Tim Kowal 20:26
Well, I like to be collegial, but I don't think that means that I need to do the other side's burden for them. So yeah, if I'm the respondent, I'm gonna say, yeah, it is the appellants burden to procure the complete record needed to for thorough and appropriate review of the issues raised on appeal.
Jeff Lewis 20:42
My motion was granted, but Okay, okay. Note to self listeners, if you ever opposing Tim Cole, he will not stipulate to a motion to augment if he's the respondent.
Tim Kowal 20:52
I may stipulate to it. I may stipulate to it but I'm still gonna make them file it. Yeah. But anyway, for the for anyone in audience who's curious for the proposition about the is the appellants burden to make the complete record, I'll cite Sprague versus Equifax. We'll put a link to that in the show notes. It says that the reviewing court is not required to make an independent unassisted study of the record in search of error or grounds to support the judgment, it is entitled to the assistance of counsel. Accordingly, every brief should contain a legal argument with citation to authority on the points made and here's the money quote, if none is furnished on a particular point, the court may treat it as waived and pass it without consideration. So I take that it's the duty of the appellate to include a record so that it can cite to the factual site to the record for the factual propositions required for reversal. So that's a Sprague versus Equifax case. Okay.
Jeff Lewis 21:40
All right. And it looks normally if the appellant is proceeding by way of appendix as a respondent, you could just sit back, wait for the opening brief and then prepare your own respondents appendix if anything's missing, but if the appellant is proceeding with a clerk's transcript, because the question is do you immediately countered, designate additional documents to be included in the clerk's transcript? Or do you sit back and wait and maybe file a motion to dismiss due to a failure to include all necessary records? To close question? Yeah, interesting procedural rule if the appellant has not designated any reporters transcripts, the rules do not allow the respondent to file a counter designation of reporters transcripts. I found that rule kind of surprising. And also there's
Tim Kowal 22:24
the reason for that rule, other than, you know, it is the appellants burden and what the court does what the respondents to needlessly help out in that regard. Yeah,
Jeff Lewis 22:32
I don't know. I don't understand the reason. I imagine if you're a respondent, and it was really important to make a point in your respondents brief, you could probably get away with filing some sort of motion to augment and try to squeeze it in that way. But she certainly can't file a counter designation before the briefing is done and the issues are surfaced. Yeah. And if an appellant has designated fewer than all the days of the reporters transcript, the appellant has to describe what particular issues to be raised on appeal, so that the respondent can decide whether to counter with additional days of reporters transcripts.
Tim Kowal 23:07
Yeah, I like this rule. I like the fact that if less than all of the transcripts are identified in the designation of record, the appellant has to identify what issues are being raised, I find this it helpful to look at the designation of record and see where the appellant has identified what issues it's going to raise. But I can't say that it's that I've been able to use this to my advantage, I guess you can report back to the client that we now know what issues are going to be raised. And we don't have to worry too much about some mysterious issue that's going to come up in the opening brief Some months later. Yeah,
Jeff Lewis 23:37
yeah. I can't say I've ever used it for any other purpose. And nor have I ever had a situation where the appellant says it's issues gonna be A, B and C, and that for purposes of record designation, then the appellate brief raises issues E, F, and G. And I don't know what the impact would be on that. But I haven't encountered that situation. Yeah.
Tim Kowal 23:56
I haven't seen that any of the cases, either. If we're an appellant raises an issue on appeal that was not identified in the designation of record where it was required under Rule 8.1 30. Yeah, we think like you said, if it's one of those courts that strictly adheres to the rules, and it would be deemed waived and forfeited, if the court wants to reach the issue. It will reach the issue. Yeah.
Jeff Lewis 24:15
Yeah. All right. That's all I had on tips for designation of the record. Okay.
Tim Kowal 24:20
All right. Tip number six, designation of the record continued. This is for cases where there are multiple or prior appeals. So just ask yourself, if you're the respondent in the designation of record process, ask yourself Have there been previous appeals? Or are there multiple appeals from the same case? If so, you may want to consider whether the appeal should be consolidated or whether the record from the previous appeals need to be part of the record on this appeal. So now's the time to raise that I would again have the same reservations about needlessly helping out the appellant if it's the appellants burden to make the record on appeal. I tend to err on the side of playing staying silent on that point. Yeah. Okay. And then Ask yourself has the prior record been designated as a record for the current appeal? Yeah. Okay. Yeah, that's it for now six.
Jeff Lewis 25:07
Tip number seven. This is a good one for respondent of modest means. Tip number seven is lending the appellate record. Instead of buying the clerk's transcript or importantly, buying the reporters transcript, which can be super expensive, the respondent can send a simple letter to the appellate within 20 days of the record being lodged on appeal, saying, Hey, I'd like to borrow the record. And in that case, when the opening brief is filed, the appellant has to send the reporters transcript and the clerk's transcript if there is one on over to the respondent pays the costs of overnight courier back and forth and returns the record the respondents brief is very handy.
Tim Kowal 25:45
I love this this rule rule of court 8.1 53 I have a form email form letter that I send to opposing counsel, when I come into a case and say I hereby formally request that you blend the record to me after your opening brief is filed. And mostly what happens? Let me ask you this, Jeff, this rule 8.153 requires the appellant to lend the respondent on request a copy of the record after the opening brief is filed. What did he say? The notice under 8.1 53 has to be made within 20 days of the record on appeal being filed. Now, that happens pretty early in the case. And sometimes I don't come on to the case until after this period has expired. I've never come across a point where the appellant says nope, sorry, your window has closed. So no record for you. In my form email. I will also state that I will remind the appellant that if your appeal happens to be unsuccessful, then your client will be on the hook for my costs on appeal, which would include my costs in procuring the record. So it may behoove you to lend me this record, not withstanding the fact that the 20 day window has expired.
Jeff Lewis 26:50
Interesting. Yeah, I have dealt with Lee notices where the I come into the case after that 20 day window, and the appellant refuses to lend it. And I found the Court of Appeal to be very generous with extensions of time for me to send a runner down to the court to copy certain pages. That's the remedies getting lots of extensions in terms of briefing. Yeah, I will say this, we had a case here involving impro per appellate, somebody who was ultimately determined to be a vexatious litigant where a dispute arose regarding whether or not when we returned the record. Everything was properly returned. And so just one cautionary tales in dealing with improperly a photograph an inventory definitive proof of what is received and what is sent back.
Tim Kowal 27:37
I hadn't thought about the liability for failing to return all of the record that had been lent. Yeah. Okay, a nightmare. Okay, well, that's another important tip on appeal, especially if you're the respondent having the appellant lend you their copy of the record. Okay, on to tip number eight, ask yourself if the or the respondent is their fee shifting available. If fees were the ordinary rule is that if fees were recoverable at trial, then fees may be sought for work performed on appeal. The case authority for that is Serrano versus UNWRA, 1982 32. Cow third 621 will include a site to that in the show notes.
Jeff Lewis 28:17
So as the respondent track your time
Tim Kowal 28:20
on that appeal, right. All right.
Jeff Lewis 28:23
Tip number nine, when you're the respondent, a subject that Tim has no opinions on whatsoever, is the judgment automatically stayed on appeal. I think we can all agree that a judgment consisting solely of costs and attorneys fees, is normally stayed pending appeal. But there's other circumstances where you as the respondent, we might want to consider executing on the judgment, even pending the appeal. So perhaps a fee award on an anti slap motion might be something where you'd consider executing pending appeal if you're the respondent.
Tim Kowal 28:55
And we'll drop the go through the split of authority on that question in the show notes.
Jeff Lewis 28:59
And, you know, it's a mandatory injunction that's normally automatically stayed pending appeal, but a prohibitory injunction is not stayed pending appeal. And a judgment for damages is normally not stayed pending appeal. So the question is, do you want to do something for the other side to pay up or post a bond to help you with collection efforts after the appeal is done?
Tim Kowal 29:20
Yeah, yeah, these bonds and stay issues are very complicated, and they're very vexing for the appellant. So be aware of that when you're the respondent. Usually you are in the catbird seat typically. So you get to drive the appellant strategy there. So you want to be aware of what the hurdles are for the appellate and use those to maximum advantage when you're the respondent. Okay, tip number 10. We've made it all the way through the list to number 10. Now, now, Jeff, this tip is entitled, ask yourself is trial counsel competent to handle the appeal? Well note that this sorry, go ahead. This outline was drafted by Jeff Lewis, appellate specialist CSM dog in the fight here to ask yourself whether the trial counsel should be handling the appeal rather than Jeff Lewis appellate specialist. Now Jeff points out that under Rule of professional conduct rule three dash 110 and attorney has a duty to avoid representation in any matter unless he or she is competent to handle it. And following the intense experience of going through trial, a second opinion may be warranted, as observed by Justice Kenneth Eugen in a state vs. kilka sin in 1988. Opinion, quote, trial attorneys who prosecute their own appeals may have tunnel vision. Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar schooled in appellate practice. Let's see the the quote from Justice Yugen goes on to state that there is no substitute for the judgment of an appellate attorney who through experience is familiar with the types of arguments that have the best chance of succeeding. Statistically speaking in California, 80% of civil appeals result in no change to the judgment. Given these long odds and appellate specialists can help a trial attorney identify the key issues most likely to be persuasive on appeal, and as described by the United States Supreme Court. There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This is assumed a greater importance in an era where oral argument is strictly limited in most courts, often as little as 15 minutes. And when page limits on briefs are widely imposed brief that raises every colorable issue runs the risk of burying good arguments, those that in the words of the great advocate John W. Davis, go for the jugular in a verbal mound made up of strong and weak contentions. That's from the case Jones versus Barnes 463. Us 745.
Jeff Lewis 31:58
I agree with you, Tim.
Tim Kowal 32:01
You know, notwithstanding the fact that we are interested players here, Jeff has appellate specialists and we'd like to be invited to take a look and consult on appeals. I think it is whether or not we're someone like us is brought in to handle the briefing and the arguments, a separate set of eyes, I think can be very useful in at least in identifying issues on the appeal. We don't make the same arguments. I think there's another quote, you'd like to mention, Jeff, about how well I think we did read about the tunnel vision, and about how trial attorneys sometimes are married to the theories that they present at trial. And as we often tell potential clients, you know, for factual theories, you get one shot, you get one shot to make your factual to persuade the trier of fact at the trial if you don't persuade on your facts. And all you've got are the puzzle pieces left over by the trier of fact and you can try to rearrange them to fit some other kind of legal strategy, but you don't get to try the facts again, and that is what it can be really hard to overcome. If you have gone through the gauntlet of doing the pleading and the litigation, the discovery and the trial is divorcing yourself and separating the legal puzzle pieces from the factual puzzle pieces. Okay, final comment. I got just a bonus tip or two. When it comes to briefing. This is from my respondents briefing toolkit, Jeff. So here's my first bonus tip to respondents when they're briefing their appeals be mindful of the fact that an order on appeal will be affirmed on any grounds. So if there is a good basis for the judgment that the judge didn't mention in its minute orders, for example, then mentioned it on your respondents brief. The order will be affirmed on any grounds, not just the ones that the trial judgment mentioned. So the quote for that is from people versus final casualty and surety. Typically an order can be affirmed on any ground in the record quote, because our job is to review the trial court's ruling, not its reasoning. So even if you can take potshots at the reasoning and say, well, the X doesn't flow from y or whatever it is, in the reasoning you have to make. You can't be the sophist and take the trial court's weakest arguments and pick it apart. You have to take the strongest arguments available to your interlocutor and defeat those the Court of Appeals is not sitting around and going to let you throw potshots right at the weaker argument. My second bonus tip for respondents on briefing ask yourself did the appellant throw a bunch of uncooked spaghetti at the wall, for example, arguments that were not fully developed or arguments that we're not contained under a sufficient heading in your brief. So arguments and briefs raised in a perfunctory fashion will be deemed by the appellate court to be abandoned. That's nice a farmers league versus Labor and Workforce Development Agency. I'll put a link to that in the show notes and for the point of law on the importance of headings now, a lot of people are surprised when I point out about headings that you can appellant's improper or insufficient use of headings can get arguments waived or deemed waived or forfeited on appeal that's most people find that are incredulous about that. But that's right out of California rule of court 8.204 points raised in the opening brief must be set forth separately under an appropriate heading showing the nature of the question to be presented and the point to be made. And there's a couple of good quotes and I want to read about this why this is not just a technicality. This is not here's a quote, This is not a mere technical requirement. It is designed to lighten the labors of the appellate tribunals by requiring litigants to present their cause systematically, and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised as they read of the exact question under consideration, instead of being compelled to extricate it from the mass. And then following the citation. Here is the money quote, the heading is not merely an outline label, but must constitute a contention of legal error. Failure to set forth arguments under an appropriate heading forfeits consideration of the issue on appeal. That case is Updike versus California horse racing board and it 95 opinion we'll put a link to that in the show notes. I thought that was the reason that really jumps out at me, Jeff is it gives a clue about how to craft your headings, they're not just signposts about here's what I'm going to talk about next. They are your statement of issues on the appeal. Now, I don't know about you, I don't usually include issues presented as one of the headings of near the top of my brief, I find that those ought to be unnecessary. If you have well crafted headings in your brief, each of your headings should, especially in your legal arguments section should be statements of the issues on your appeal. And if they're not, then maybe you're not giving enough thought to crafting the headings in your brief.
Jeff Lewis 36:47
Yeah, I tend to agree I do issues presented on a petition for review to this Supreme Court. But otherwise, you know, your table of contents is your issues have presented and give the court everything it needs to know about what you're arguing and why.
Tim Kowal 37:00
Right. Okay, well, those are tips from the respondents toolkit. Now, we've got a couple of legal news tidbits we want to share with you. First up, we wanted to talk about the recent Ninth Circuit decision in Twitter versus garland. Prior restraints on speech are generally disallowed. The FBI here had put a prior restraint on Twitter, and the Ninth Circuit recently upheld it. The FBI apparently has subpoenaed Twitter quite a lot in Twitter wanted to tell the public about the number of subpoenas but then the FBI retorted and said, No, you can't do that that would threaten national security. And Twitter took that to the to the District Court. And the Ninth Circuit ultimately said that our nation's enemies could use the number of Twitter subpoenas against the United States national security. So that prior restraint against Twitter from releasing information about the subpoenas to it was upheld by the Ninth Circuit. Is it literally
Jeff Lewis 37:58
just the number of subpoenas or more information that Twitter was hoping to squawk about?
Tim Kowal 38:04
And in the blurb I read? It's I think it said the number but there may have been more information about the subpoena is about what kind of information they were looking for. It shouldn't see if
Jeff Lewis 38:12
Supreme Court takes this one up. I imagine somebody will ask the Supreme Court to take it up,
Tim Kowal 38:17
seemed like a close call, although there was common these days to talk about courts in partisan terms that there was a bipartisan consensus on the panel that affirmed this on the Ninth Circuit. Okay. The next tidbit we wanted to talk about the Supreme Court has the published an opinion of the court of appeal finding part of a gun licensing statute unconstitutional. So the case is People vs. Velez. The court denied review in bellezze. But it D published the Fifth District Court of Appeals partially published opinion, this request for review and D publication, maybe it was just reviewed was by six county public defenders. The previously published part of the Fifth District opinion had ultimately rejected the challenge to a charge of carrying a loaded firearm in public. As an active gang participant court, the fifth district found that it was clearly unconstitutional under the Supreme Court of the United States Supreme Court's brewing holding, but the court of Court of Appeal went on to hold that certain California statutes that generally require a showing of good cause even though otherwise would be unconstitutional. Were severable. And there was a lack of there was a standing problem because the person charged was too young. So apparently the supreme court felt that look, if you're not going to actually reach the constitutional issue as a grounds for striking down the statute, then we don't want this kicking around the books and a published opinion. So D published that opinion. Interesting. All right. Another tidbit from the Supreme Court of California, the Supreme Court will answer a big ticket COVID Insurance question certified from the Ninth Circuit Supreme Court recently agreed to answer this question posed by The Ninth Circuit in the case another planet entertainment LLC versus vigilant insurance company. Here's the question, can the actual or potential presence of the COVID 19 virus on an insured premises constitute, quote, direct physical loss or damage to property and quote, for purposes of coverage under a commercial property, insurance policy and quote, so that's the question certified to the California Supreme Court, the Supreme Court has declined to take up COVID insurance issues in state court actions, but certifying questions from the Ninth Circuit seems to be a remain a good way to get our state Supreme Court to act on certain questions.
Jeff Lewis 40:39
God, I'm glad I don't practice Insurance Law.
Tim Kowal 40:44
I mean, it's it's it's I know a lot of people have been waiting around to see what what the state of California law is going to be on that question. And it just the California Supreme Court has denied review in a number of cases. But here when this in the Ninth Circuit asks for the court to answer the question, it says, Sure, yeah, sure. Happy to oblige.
Jeff Lewis 41:00
All right. Here's a practical tip for Palo Alto attorneys appearing in the second district, a member of the listserv, Tim and I belong to routed an email, saying the second district in addition to not bringing cell phones into the courtroom, has recently asked lawyers to stop bringing smart watches into the courtroom. So I think in the second district, you're still allowed to bring iPads and computers if you say you're presenting, and you need that to assist you present to the panel. But phones, and I guess now your Apple Watch have to be surrendered to security for the duration of the argument. I have no idea why the court changed its policy. I've taken my watched in but you know, sometimes these watches, you know, they think you say something and all of a sudden it says I'm sorry, I didn't understand what you were saying. I wonder if that interrupted an argument one time too many.
Tim Kowal 41:49
Oh, does it squawk at you at times? Yeah,
Jeff Lewis 41:52
every once in a while when I say something close to Siri, the watch will say I'm sorry. I don't understand what you're saying. And it's awkward.
Tim Kowal 42:01
Yeah, I can see that could be awkward and a disruption. I had assumed that there was something more to it. The reason why they most people know how to silence their laptops, for example. And if they don't allow laptops or cell phones into the courthouse, I wonder if it has to do more with our the courts trying to prevent recording, although they broadcast a lot of these arguments, and they can't prevent people from recording them on their computers at home. And yeah, you can you can bring
Jeff Lewis 42:23
an iPad in to the lectern. And you could record I mean, you're not supposed to. But technically the capacity exists to record from I don't know why there's a crackdown on this.
Tim Kowal 42:32
Yeah. But that's still a little bit mysterious to me as well. Okay. And then Jeff, did you want to talk about the Do Not Pay case?
Jeff Lewis 42:39
Yeah, we talked earlier about an earlier episode about do not pay, which app was talking about paying somebody a million dollars to let do not pay, put an earpiece in your ear and go to the Supreme Court and argue for you. It bills itself as the first robot lawyer. It's in the news again, this week, when a law firm up in San Francisco filed a class action lawsuit against the website, citing 17 200 Business and Professions Code, saying that this website do not pay is engaged in the unauthorized practice of law. It's not a lawyer who's the founder of this company, and it sells legal services to the public in terms of documents and advisory services regarding battling court tickets and other issues. So be sure to see what the court does with the 17 200 action. I wonder if an anti slap motion might be filed in response?
Tim Kowal 43:28
Would that be an action filed on behalf of the robot or the robots operator?
Jeff Lewis 43:34
Yeah, exactly. Whoever responds on behalf of this lawsuit might have an argument that there's an anti there's petitioning activity here. But I think satisfy a prong one arguments that there's protected activity, they'd have to concede they're practicing law, which they wouldn't want to concede. So it'll be interesting to see how they respond. Maybe they'll just respond with a dimmer.
Tim Kowal 43:52
You know, when this reminded me of something that I think we talked about on our podcast with Pablo Redondo, the co founder of case text, about how AI works. And he mentioned something to the effect of, we don't know exactly how it works, they program the processes by which the AI uses to formulate and chunk through all this information to produce a response, but they don't can't predict what the response is going to be. And so if there's a free speech claim on behalf of a of a robot lawyer using AI, is the speaker truly the person who owns or operates the robot if they can't predict what their robot is going to say?
Jeff Lewis 44:27
That's a great question. Yeah. All I could tell you is that 2000 years from now, when humanity is decimated by a robot overlords, Pablo will be quoted in terms of Yeah, we don't know how AI works. Right. And then one other tip I wanted to bring in has to do with UC Hastings Law School, now known as you see College of Law, San Francisco. If you graduated from that law school, your state bar record has been flipped not once, but twice in the last few weeks. Initially, the State Bar had made a decision that folks who graduated from Hastings, when it was named Hastings should have the name Hastings on their state bar record. But then it got flipped back. And now everybody affective I think March 10. Everybody who ever graduated from Hastings has had the record flipped. So now reads UC College of the Law San Francisco.
Tim Kowal 45:19
Yeah, that's interesting. And please be a little bit trepidatious about the nature of how our records are kept digitally, and that they can be changed at whim like that. Obviously, you can't change my diploma on the wall, unless they start issuing digital diplomas, like those picture frames that you give to your grandparents, so they can see their grandkids.
Jeff Lewis 45:37
Hey, that's a great question. You know, every once in a while, you know, if you lose a diploma, if there's a fire something new, you can order a new one from your school. I've done that with a college degree, but I had lost. And I wonder if they're gonna do the flipping of the name on the new ones to the replacement.
Tim Kowal 45:53
Yeah, that's right. If you get it replaced, or do you have a right to request an updated diploma since you graduated from another law school now?
Jeff Lewis 46:00
Tim Kowal 46:02
I graduated from two law schools. Okay, well, that's gonna wrap up this episode. Again, we wanted to thank our sponsor casetext for sponsoring the podcast each week, we include links to the cases we discussed, and we use casetext for those cases, and listeners of the podcast can find a 25% discount available to them if they sign up to casetext at casetext.com/calp. That's casetext.com/calp.
Jeff Lewis 46:30
All right. If you have suggestions for future episodes, or if you're an AI that's been offended by our episode here today, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 46:44
See you next time.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again