The California Appellate Law Podcast

Judge Bress slags SLAPP appeals, and other recent cases

May 09, 2023 Tim Kowal & Jeff Lewis Season 1 Episode 85
Judge Bress slags SLAPP appeals, and other recent cases
The California Appellate Law Podcast
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The California Appellate Law Podcast
Judge Bress slags SLAPP appeals, and other recent cases
May 09, 2023 Season 1 Episode 85
Tim Kowal & Jeff Lewis

Anti-SLAPP denials are appealable in the 9th Circuit, but Judge Bress says they shouldn’t be. Jeff proposes two SLAPP reforms:

  1. Judges should issue more sanctions against frivolous SLAPP motions.
  2. The Legislature should amend the statute so that SLAPP denials are reviewable only by way of writs.

Jeff tries to stump Tim on a SLAPP appeal quandary—if the defendant won on prong one but lost on prong two, what happens if the defendant fails to re-argue prong one on appeal? (Answer: forfeiture.)

Next, we wonder why appellate courts insist on an oral record even for hearings where there is no testimony and nothing remotely interesting going on.

Discovery sanctions awards may be appealable, but for other discovery awards—even those made on the same basis as the sanctions award on appeal—don’t count on it. Courts hate them.

A litigant failed to timely request a statement of decision before the end of a short trial.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at

Other items discussed in the episode:

Show Notes Transcript

Anti-SLAPP denials are appealable in the 9th Circuit, but Judge Bress says they shouldn’t be. Jeff proposes two SLAPP reforms:

  1. Judges should issue more sanctions against frivolous SLAPP motions.
  2. The Legislature should amend the statute so that SLAPP denials are reviewable only by way of writs.

Jeff tries to stump Tim on a SLAPP appeal quandary—if the defendant won on prong one but lost on prong two, what happens if the defendant fails to re-argue prong one on appeal? (Answer: forfeiture.)

Next, we wonder why appellate courts insist on an oral record even for hearings where there is no testimony and nothing remotely interesting going on.

Discovery sanctions awards may be appealable, but for other discovery awards—even those made on the same basis as the sanctions award on appeal—don’t count on it. Courts hate them.

A litigant failed to timely request a statement of decision before the end of a short trial.

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.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at

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.

Jeff Lewis  0:18 
I'm Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists. But as uncertified podcast co hosts we try to bring our audience trial and appellate attorney some news and insights they can use in their practice. As always, if you find this podcast helpful, we would love it and appreciate it if you'd recommend it to a colleague.

Jeff Lewis  0:34 
And if you don't like it, it's a wonderful natural sleep remedy. Before we jump into this week's discussion, we want to thank again, Casetext for sponsoring our podcast. Casetext, a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. In case Texas relied on by 10,000 firms nationwide from solo practitioners to law 200 firms and in house legal departments in March 2023, Casetext launched co counsel, the world's first AI Legal Assistant, oh, counsel produces results lawyers can rely on for professional use while maintaining security and privacy listeners of our podcast enjoy a special discount on Casetext basic research by That's Yeah. And

Tim Kowal  1:17  
Jeff, I'll tell you a recent success story that I've used case text for in the AI product co counsel, you know, I've been using it just I just keep it up while I'm writing a brief and I just, if I have a cockamamie idea, and I want to see if it's cockamamie or there's something to it, I just plug it in, have it do a quick junior associate level quality of brief. And sometimes it'll spit out some cases that I hadn't hadn't found before. And that become very useful. So I'll get to the end of my brief and just think, Okay, well, let me just check these cases that CO counsel found for me, and I find the case cracker in there. And I just did that recently.

Jeff Lewis  1:46 
It's like having a tireless first year associate who never sleeps.

Tim Kowal  1:50 
Yeah. never complains ever talks back.

Jeff Lewis  1:53 
All right, Jeff, you get the same quality. That's right.

Tim Kowal  1:56 
We are continuing our tour through some recent April. And now we're into May 2023. cases. And our last episode, we covered several concerning appeal ability and timeliness issues today. We have some cases involving anti slap sanctions, settled statements, record defects, and more. So let's get right to it. The first case we're going to cover is salvus. In vs. Kessler, it's an anti slap denials. They are appealable in the Ninth Circuit, but says judge breasts they shouldn't be. So this case came out of the film production involving where Alec Baldwin had accidentally killed somebody using a prop gun. That was unbeknownst to him loaded. The cinematographer died in that case, but this is a spin off case a civil lawsuit salvus and versus Kessler out of the Ninth Circuit, and the Ninth Circuit holds that the civil case which involves the producers claims concerning his former lawyers, business and tax practices holds out no issues of public interest for purposes of the anti slap statute. So uninteresting are the claims in fact, and so devoid of protected conduct that Judge breasts separately concurred, asking why is this appeal even kicking around sucking up a year of everyone's time while the case languishes under a pointless appellate stay back at the District Court, Judge brass pointed out that the anti slap law and the immediate right to appeal from denials of anti slap motions are procedures specific to California law. But the Ninth Circuit has its own procedures. And under those procedures, there is no immediate right to appeal from anti slap denials. And in fact, Jeff, as we know, there is no federal anti slap law or procedure at all, yet, not yet. There should be if if circuits are embracing them, rather than tried to graft them on to existing, ill fitting procedural statutes, the United States Congress would just pass its own anti slap statute, Judge Bress writes, quote, this piecemeal appeal, which are precedents unjustifiably allow has resulted in a totally meritless anti slap motion delaying this litigation by nearly a year. This is neither sound as a matter of law nor sensible as a matter of litigation management, in quote.

Jeff Lewis  4:11 
Yeah, so, you know, judge, Judge brass is really complaining about a smack a strategic motion against credible claims, right? The kind of anti slap motion that's clearly frivolous, has no prayer of being granted, and yet it's filed and then when it's denied, it's appealed. And the litigation grinds to a halt. And I have this to say in response, first of all, a true slap a lawsuit that is clearly and demonstrably frivolous. There should be the right of immediate appeal always to weed out frivolous lawsuits like that. But this judge is complaining about a smacks anti slap laws used for a credible lawsuit where the anti slap motion should never have been filed. Here's my easy solution. Let's amend 42 Four to five point 16 to make it a little easier for the winner of an anti slap to win Need plaintiff to get sanctions a little easier to show that it's a frivolous anti slap motion and amend the statute to say when the judge at the trial level declares it to be a frivolous anti slap a smack, if you will deprive that litigant have the right of immediate appeal. You go up on a writ if you want to seek immediate review while the case proceeds to discovery. Yeah, that is the Jeff Lewis solution.

Tim Kowal  5:22 

Yeah, yeah, I'd cosign the Jeff Lewis solution to the anti slap law, Jeff D. So you have to there's two prongs of that solution matching the two prongs of the anti slap procedure, the second prong denying the right to appeal a denial of an anti slap that would require a legislative amendment. But the first part of your proposal, which is to make sanctions motions filed by the successful opposing plaintiff easier to win on, would that require a legislative amendment?

Jeff Lewis  5:50  
Maybe I'm mistaken, if judges started sanctioning defendants who file smacks more as a matter of practice, you wouldn't need a legislative amendment. And in terms of the appeals, you know, over the years, since the statute was enacted, and legislature has carved out a number of areas where there is no right of immediate appeal, I think if the commercial exemption applies, there's no right of immediate appeal. And I think in a slap back action, there's no right of immediate appeal. They gotta go by way of writ. So this would be an easy legislative amendment.

Tim Kowal  6:21  
Yeah, yeah. And I agree, if judges at this point, I think could look and say, Look, we now have a well developed mature body of case law interpreting the anti slap statute. So defendants, you know, by now, what is a meritorious anti slap motion and when you are being too clever by half, and so we're going to grade these plaintiffs successful plaintiffs motions for sanctions for filing a frivolous motion accordingly and get a little bit more, you know, the decks are going to be stacked a little little more favorably toward the plaintiff and granting those motions. Yeah, absolutely. All right. But But back in the Ninth Circuit, you know, allowing the Ninth Circuit rule that allows immediate appeals and appellate stays after denials of anti slap motions may be modified only by US Supreme Court decision or by the Ninth Circuit sitting on bonk. So a three judge panel as much as they might like to are powerless to change the rules,

Jeff Lewis  7:11
or an amendment to the state law, state anti slap law. I'm sure the Ninth Circuit wouldn't mind anything that reduced the number of appeals of smacks

Tim Kowal  7:19
but yeah, let's hope so. Yeah. All right. Next case is Kendrick vs. Wycoff. An oral record on appeal was required to review the validity of a trustee notice to beneficiaries. Reason I flagged this, Jeff is because we've talked sometimes about oftentimes about the court reporter shortage crisis, and how that wreaks havoc on litigation practice. If you can't find a court reporter or if you can't afford a court reporter if you are you have access to justice issues yet to scrutinize whether you really need to hire a court reporter. They're not cheap, they don't work for free. And if you're not certain you're going to you're going to need it on an appeal. You might decide, look, I better not have it. But there are a lot of cases that still will imagine that there are things going on at the hearings that require a verbatim record or at least or some form of oral record. So that's what happened in Kendrick versus Wycoff out of the first district. So probate departments recently have stopped providing court reporters in California needs, you know, some 2700 court reporters to fill the gap. And so, you know, the question is, do we really need to have court reporters and all the proceedings. In Wycoff trust beneficiary challenged the validity of a trust amendment. He claimed that the trustees notice to the beneficiaries under probate code 1606 1.7 was invalid. And that sort of thing is normally determined just by looking at the documents, you know, is it a valid notice or an invalid notice? Do you need testimony on that sort of thing? Probably not. You just look at the documents. But the Court of Appeal here said that it would not review the issue on appeal unless it had an oral record of the hearing, and no oral records. And the Court of Appeal meant that the order had to be affirmed, quote without a record of any evidence received at the hearing. We must presume the evidence supports the trial court's findings, and its resulting orders were appropriate Based on these findings and quote. So Jeff, my comment on this is that, you know, the requirement that an oral record be supplied already imposes difficult technical and administrative burdens on less well, heeled litigants, but especially so given the court reporter shortage if the respondent indicates, you know, in its brief that that, hey, yeah, there really was something that happened at the hearing, and the appellate failed to provide it. You know, here's the gist of what it is. This is the sort of thing that the trial court considered and it did. It is entitled to substantial evidence review, and therefore the appellant didn't make that burden and has to be affirmed. That's an argument I can get behind. But just imagining that maybe there was something that happened when the issue on its face didn't seem like it requires any testimony or subtleties that would have happened at the hearing that seems a little too Cavalier to to fault. the appellant for that.

Jeff Lewis  9:52 
Yeah, look, a classic example is attorneys fees when you're arguing over the amount of attorneys fees on an appeal for somebody shouldn't be appealing that because That's a big hill to climb trying to disturb the trial court's discretion on the amount of attorneys fees. Well, let's say you're appealing that if you don't have a record of the oil proceedings, that Court of Appeal can say you forfeited the issue because there's no record. And there's no settled statement. I don't know what the Court of Appeal does with the reporter's transcript, attorneys fee motion, do they really need to see what the trial court's comments were in a non evidentiary hearing regarding the papers that are already before the Court of Appeal? I don't get I don't understand the value in that context.

Tim Kowal  10:33 
No, I don't get that either. Again, it may depend on the issues and arguments being raised if the appellant is arguing that oh, look, the judge didn't consider my argument about the over billing or the block billing. And well, maybe there was some discussion on the record about that that's indicates that the judge did consider those issues. But otherwise, yeah, you're right. I mean, unless there are witnesses sworn in, I'm not sure what the point is, and having a verbatim record or an oral record of the proceedings, and not sure what is turning the tide in these other cases. All right, the next case, also on the subject of oral records of proceedings is rock mobile, Inc, versus Brandon out of the second district. Use a settled statement to fill gaps in your record, but don't try to rewrite the record. So here's here's an example of an appellate who knows that they needed an oral record of the proceedings didn't have a verbatim court reporters transcript, but the CEO decided to use a settled statement. But here's a good example of what a settled statement is not to be used for. So on appeal from the denial of his motion to set aside the judgment, in this case, rock mobile, the defendant brand and came up with this clever application of the settled statement process. So remember that a settled statement is a summary description. It has to be a fair and balanced summary description of the documents or oral proceedings in the trial court, Brandon put together a proposed settled statement and said that he never got notice of the October default. And this Brandon hoped would be good grounds to get the Default Judgment vacated. But the settled statement contradicted the declaration of rocks counsel in the written record, rocks counsel declared under penalty of perjury that he mailed Brandon the default the day the court clerk entered it. So the court concluded, we reject this use of the settled statement, and besides the court went on non receipt of the notice of default, shall not invalidate or constitute ground for setting aside any judgment, citing Code of Civil Procedure 587 and case law. So that the comment on this, Jeff is that you should still consider the appellants example and use a settle statement to fill any gaps in your appellate record, just don't try to use a settle statement to rewrite the record to contradict facts that are in there or to supply facts that were never actually offered into the record. But if there are documents or there's an oral transcript that are not available to show what happened, you should consider using a settled statement. It's not that difficult of a procedure. It's just so many of the ones that do come up are fumbled or attempted abuses of the procedure. Yeah,

Jeff Lewis  13:03 
or in this case, the trial court wrote, according to this court appeal opinion, the trial court wrote in response to the proposed settle statement, I've got no idea what happened. I don't remember there was no court reporter there. And so settled statement was of little use in this particular case. And I don't know how trial judges go through the process and try to recreate something that happened six or nine months ago. It's crazy.

Tim Kowal  13:26 
Well, that's right. That's my part of the procedure. If you're going to do it, you need to do it almost contemporaneous like day by day. And don't try to do too much it doesn't replace a verbatim record. So don't try to get the court to sign off on specific verbatim statements that were made, because then the court will say, I don't, I can't, I can neither confirm nor deny that this is precisely what was said. So you just have to do a fair narrative. If your case is going to turn on a particular way, a witness said something, then forget about it. If you don't have a verbatim record, then you're not going to be able to replicate that with the settled statement. But some good possible applications of a settled statement could include, you know, showing what happened during a sidebar. That happens even when you do have a court reporter there, the sidebar is out of the hearing of the court reporter. But you can use the settle statement to describe a demonstrative exhibit. That happens a lot. I see that a lot in the record. When I'm reading an oral transcript of the trial and I keep seeing references to a demonstrative exhibit. I don't have a copy of it. It's not described anywhere in the oral record, it'd be nice to have a settled statement that some record of what that demonstrative exhibit was you can use a settled statement for that. You can describe what happened at a law and motion hearing, as you were talking about Jeff, like the quintessential example of attorney fee motion. If you think that that the respondent is going to try to club you over the head on appeal because you don't have a verbatim record, then maybe just a quick settled statement containing a brief narrative of what happened. You can capture your request for an evidentiary hearing or a request for a statement of decision that was made at an oral hearing capture that in a settled statement, and you could capture your objections to jury instructions though As often happened in camera and seldom do trial attorneys drag along a court reporter into the judge's chambers. Yeah. Yeah. Okay, next case is Steel's is one of those situations during that period right in between kind of in that Twilight period after trial, but before the appeal, this is where a jury was released from duty court held that jury could not be reconvened. Later on when it was learned that the jury needed to make an additional finding. This is People vs. Jones out of the first district in April 2023. The lesson here is do not forget to have the jury make all of the required findings because once the jury is discharged, as happened in people versus Jones, the court loses control of the jury, and so the jury cannot be reconvened. So that's the standard of this case is the court has to have control of the jury at all times once it loses control cannot be reconvened. So what happened in Jones is that the prosecutor had charged in enhancement as a criminal case, but I think the same standard would probably apply in civil proceedings. Jeff, the prosecutor had charged in enhancement based on a prior serious felony. The jury returned a guilty verdict, but did not make a finding that the defendant had committed the prior serious felony before the trial judge thanked the jury for their service and released them from their duties. By the time the jurors were brought back in some four hours had passed, at least a record could not account for exactly where they were or if they had left the building. A jury that has been released maybe reconvened. But only if the jury has remained in the court's control. The court did note that the jurors had not left the courthouse I misspoke. The record, at least according to the record made by the judge reflected that they were still somewhere about in the courthouse. But the record was silent whether the jurors had abided by the previous admonitions, especially given the fact that the judge had released them from their duties. And court said that, quote, given such a paucity of evidence, we cannot conclude that the jury remained within the court's control.

Jeff Lewis  17:03 
Right and key there was the judge's instructions on discharge saying, hey, every day I've told you you don't have you're not allowed to talk about this case. But today, I'm discharging you, and you're now free to talk about the case. Let's say one thing that that struck me when I read this case was it wasn't clear to me when defense counsel pointed out to the judge that hey, there's one more charge we got to deal with, that the defense counsel objected. When the jury was brought back in, it wasn't clear to me. And I wonder if there's an issue of waiver or invited, err, wasn't briefed, wasn't discussed in the opinion. But I'm just curious if the defense attorney had objected?

Tim Kowal  17:37
Yeah, that's a good point. I don't think it was clear in this case, whether this was a structural error, and I don't recall there being a discussion about prejudice one way or the other. I think this may be a structural error issue. Once the judge loses control of the jury. I think that jury is just there's no way to know whether the release of control is going to affect the jury's decision on a later finding that it's asked to make. Yeah. Okay. The next case deals with Discovery sanctions. This is Dec vs developers investment company out of the fourth district division three from March of 2023 $37,000. In discovery sanctions was held to be appealable, but not the related issue sanctions. So there are two different discovery orders here. One was sanctions. One was money sanctions, one was issue sanctions. The The first was appealable, but not the second, Discovery orders can be devastating. But they're not always appealable under the appealability statute of CCP, nine oh 4.1. Sanctions orders greater than $5,000 are appealable. And so that gave the defendants in the deck vs. Developers investment company case and idea the defendants got hit with issue sanctions for quote, blatant disregard of discovery and discovery orders. And although the issue sanctions were potentially case dispositive, as the Court observed, they were not appealable. But the court had also imposed some $37,000 in money sanctions. And because that's greater than $5,000. That's an appealable order. And they weren't related Jeff to the same conduct. So won't The Court of Appeal just resolve all the issues at once? God seems efficient, seems more efficient, but it didn't work here. The court noted that there is a limited exception that would permit review of a discovery order as part of an appeal from an order directing payment of money sanctions greater than 5000. But the issues underlying the orders have to be based on the same conduct, and they have to be, quote, inextricably intertwined. And here the money sanctions and issue sanctions were based on the same conduct but they were not inextricably intertwined. When I read this case, Jeff, I couldn't quite follow that it starts to get very subtle when they're, they're related on the same conduct but not inextricably intertwined. That seems to be one of those inextricably intertwined themes, one of those non lawyer LEED standards that, you know, you can just take a vote on a roomful of lawyers and get, you know, different majorities on different days. But here's how the court concluded the appeal from the order imposing monetary sanctions, therefore can be examined and resolved independently of the order imposing issue sanctions put another way we can and do resolve the issue of the propriety of monetary sanctions without also resolving the propriety of the issue of sanctions and quote, I don't know, there was a lot of words. I don't know if I understood any better after reading them, though.

Jeff Lewis  20:30  
I think let me summarize from your blog post on this case, Courts of Appeal, don't want to do anything to encourage peals of discovery disputes are to make them easier to appeal. And so that's what drove the results here.

Tim Kowal  20:42  
Yeah, yeah, no, that's a good razor that helps understand exactly anything that's going to make discovery orders more appealable assume that the Court of Appeal is not going to be inclined. So the upshot here is interlocutory appellate review of a discovery order usually is going to require a writ. But those are tough in any case, and especially in a case like this, where the court appointed discovery referee commented that in his almost 20 years of service as a neutral, he had never seen, quote, such blatant disregard of discovery and discovery orders, though, Jeff, in addition to just a blanket distaste for discovery appeals, this particular appellate kind of stood out as a particularly bad abuser of the discovery process. So I think the court was not inclined to deviate from its normal rule. Okay, next case, you have got a comment.

Jeff Lewis  21:32 

I thought we were going to skip right to the stump. Tim, you want to talk about the reversal on appeal here?

Tim Kowal  21:36 
Yeah, let's go. You stumped me, Jeff. All right.

Jeff Lewis  21:39 
I want to stump you. And by the way, if any of our listeners have an opinion on this, I couldn't find a case. And I would love to get an email from you, on your opinion about this. Everybody except Fran who I returned from. Alright, so yep. So here we go. Imagine you're in an in in an anti slap manner, and you represent the plane. And you have survived an anti slap motion. And the way you survived an anti slap motion as the plaintiff is the trial judge ruled against you on prop one found that it was protected activity. But rule for you on prong two down there was minimal merit, denied the motion the defendant appeals. And in their opening brief, the defendant completely skips over prong one, and rushes right to prong two and argues now there's no minimal merit. And my question for you terms of stumped Tim is in light of the de novo review, is the defendant appellant required to brief prong one as part of their de novo review or presentation of the correctness of the order. And if they don't receive prong one, is there an argument that you've somehow waived or forced the decision?

Tim Kowal  22:45 
Yeah, forfeit the whole appeal. So from the eyes of the appellant, the appellate one on prong one, we I established the defendants successfully established that this complaint arose from protected activity, it chilled my free speech rights. And it can only proceed if the plaintiff shows minimal merit, but the plaintiff did show minimal merit. And I want to attack that ruling. And I'm not going to waste time on prong one, because I already went on that and just refer back to the judges, you know, eloquent brilliant dissertation on my prong one victory and just reverse a Mont where he missed up on prong two. But then the question is, are these two different orders? You know, is there it's a prong one analysis and a prong two analysis, but it's not a different ruling on prong one and prong two, it's all part of one order asking for relief on the anti slap statute. So and as we know, one of the fundamental appellate rules is that all intendment and presumptions are applied to affirm the ruling and the ruling here. Again, it's not a it's not a half and half, it's just the ultimate result is, you know, denied victory for the plaintiff.

Jeff Lewis  23:46 
And while your gears are spinning in your head, let me throw two other points out there. Number one, orders are presumed correct. The appellants burden on that, and number two courts of appeal review results, not reasons. Yeah. So at the end of the day, what the trial court thinks about prong one or prong two, might not be entirely relevant to the disposition of a de novo appeal.

Tim Kowal  24:10
That's right. That's right. Yeah. So you start from the conclusion, the conclusion is anti slap motion denied. And then you just work backwards to see if it's all supported. That's why I don't know sometimes when I see these things, you know, why would a trial court make any statements favorable on any part of the losing party's arguments and say, Oh, the losing party is right about x and y, but it's wrong about z, because then this sort of thing is going to happen and then appellant is gonna go up to the Court of Appeal and say, See, I got X and Y, right. And at least if it's a de novo review, you have to re argue and when on x and y all over again.

Jeff Lewis  24:45  
I'm biased because I'm on the other side of this issue, but I'm just gonna say this. Not only does the appellant have to brief both Bronwyn and Bronk to I'm going to say it is malpractice it falls below the standard of care if you are briefing an antiserum Porter on appeal. And you don't address both Paul wrongs unless there's a stipulation on record, or some sort of something binding like that.

Tim Kowal  25:08 

Yeah, I think so I'm not sure if you do these a lot more than I do. If you've not seen this before, this seems like a trap that a lot of people might fall into.

Jeff Lewis  25:17 
I've never seen, I've never encountered a brief either way, on either side of this issue where somebody skipped over

Tim Kowal  25:22 
a prop. They just skipped over it entirely. Not even humming a few bars.

Jeff Lewis  25:25 
There was a sentence where they said, well, the trial court found in our favor and prong one correct. And that was correct. But there was no argument and enough that was in the introduction or summary of argument wasn't in. There's no separate argument about prong one.

Tim Kowal  25:37 
It is a burden. It's an affirmative burden on the prong one, and so you have to make it again, on appeal.

Jeff Lewis  25:43
Yeah, well, I'll let you know how the court rules. But I was surprised I couldn't find a single case on this. And audience. If you've heard of a case on this point, please email me.

Tim Kowal  25:51 
Yeah. Jeff, would it be different in a different context in a different than anti slap context, which is reviewed for de novo? Would it be different where the review? If it was a factual finding, instead of a legal finding? Would it be different with the factual findings still hold up, even if the factual finding is in favor of the losing party? Yeah, that's

Jeff Lewis  26:11  
interesting. You've stumped Jeff,

Tim Kowal  26:12  
I think you can make an argument either way. But I have seen cases that say that we're not going to we infer all reasons, you know, make all reasonable inferences from the record, but we're not going to affirm or infer things that are directly contrary to the record. But again, this is a de novo review on prong one. Yeah, it does. It goes away. It's a no court

Jeff Lewis  26:32 
of appeal is basically doing the same thing that the trial court does. It's kind of like Ms. JS and an MS. J. If you're trying to knock out five elements of a claim. You don't just prove three of the five. But I mean, you go for all five guys, I don't understand it.

Tim Kowal  26:45 
Yeah, yeah. Let's see. I had a case here I wanted to talk about concerning statements of decision. This is a perennial favorite issue I'd like to discuss on the podcast because it comes up so often in my conversations with trial attorneys. This is Atlantic Richfield company versus California Regional Water Quality Control Board out of the Third District. This is back in December. So a few months old, when do you have to request a statement of decision? So when I tell trial attorneys my top appellate advice such as don't forget to get a court reporter the most common responses already knew that. But when I give my second most important appellate advice, which is don't forget to request the statement of decision. The most common response I get from trial attorneys is what for the court already gave me a tentative decision so I can request the statement of decision then. But not always, as arco learned in Atlantic Richfield, the court there held a hearing that lasted all of 79 minutes. arco did not request the statement of decision before submitting, and instead arco assumed it could wait until the trial court issued its written order a tentative decision, which would give it then a 10 day period to request the statement of decision and that 10 day period is also extended by the CCP 1013 rules for service but that was not the case arco had miscalculated because the trial court the trial court wound up denying the request is untimely because under California Rules of Court three point 1590 That's a key rule of court that governs statements of decision and tentative decisions three point 1590 under subdivision and quote when a trial is completed within one day or in less than eight hours over more than one day. A request for a statement of decision must be made before the matter is submitted for decision. arco then so it was untimely because they submitted and at that point, it's all over. It was only a 79 minute hearing less than eight hours less than a full day article then tried an argument turned out to be more too clever by half though it was they did have some case law to some to support it. Here's what arco argued, they said that although the proceedings only lasted 79 minutes, the judge must have then gone back into chambers and spent a lot of time reviewing the voluminous record maybe took it down to the courthouse cafeteria and maybe took it home and work from his home office. That all that work. laborious work, reviewing the record after the 79 Minute hearing and coming up with its eloquent decision must have taken more than eight hours. And so it's more than eight hours. Therefore under three point 1590. The court had to issue a tentative decision. The court rejected it and said that the court followed in re marriage of gray saying that included this quote explaining, you know the pretty common sense way of how to calculate the eight hours that said we cannot realistically expect trial judges to keep stopwatches to record the time spent off the bench rather than eight hour rule in CCP section 632 governing statements of decision requires a simple and obvious mode of timekeeping that everyone, including attorneys can keep track of even even US attorneys who can think of all sorts of strange ways that obvious things that are no longer obvious. So the time of trial means the time that the court is in session in open court and also includes ordinary morning and afternoon reads So this is when the parties remain at the courthouse, it doesn't include lunches. But otherwise we discount the time that you're in open court and the basic recesses. So don't forget to request the statement of decision. If you're in a short trial, you know, have a script ready to go. Do not say I submit your honor until you have requested your statement of decision or better yet, file it in writing beforehand.

Jeff Lewis  30:22 
Yeah. Because part of your opening statement or as part of your trial brief, why not request the statement of decision at the beginning of trying to game the system or predict if you're going to win or lose? Absolutely.

Tim Kowal  30:33 
I've been meeting for a while Jeff to write up a guide, you know, a checklist on statements of decision because I wind up having these conversations with attorneys so often about how to do it when they're preparing for a hearing or explaining to a why they have failed something up after the fact. If I write something up, I could just send them a PDF of it. Okay, and here's here's one more that I thought we'd share it I thought this was kind of fun. Ordinarily, it would be newsworthy that a United States District Court allowed a brief that was filed 15 minutes late, but Judge David proctor not only refused to strike the late filed brief, he ruled that striking a brief just because it was filed 15 minutes late would be absurd. So in the district court ruling in Whitworth vs. Medrano this was Southern District of Alabama back in January of 2023. hat tip to above the law judge proctor noted that quote, There are no doubt many other instances when 15 minutes could make a world of difference such as 50 minutes extra time presenting oral argument or running a marathon or making a departing flight. But Judge proctor goes on the electronic filing of an opposition brief in this court on a late Thursday afternoon is not one of them. Judge Proctor's sketched out a parody chambers scene in a quote parallel universe in which idle court clerks expectantly stand the wires in the waning minutes approaching 5pm breathlessly awaiting a litigants brief whereupon they commit and resolve to devote their entire evening to reading no consuming and cherishing every syllable of this expected filing. And Judge proctored concludes only in such a distant parallel universe with striking that late filed brief make any sense? I thought, Jeff, that maybe you keep the maybe bookmark this decision, and next time you need to file a late brief, you know, consider referencing judge Proctor's observation that, hey, you know, a brief file just a few minutes late could only be faulted in a distant parallel universe. It would be absurd to strike a brief just filed, like one minute late like the notice of appeal that we ordered on last episode.

Jeff Lewis  32:36 
Yeah, yeah. No, it is a good case to bookmark. And by the way, Proctor's a great name for a judge to relax. A rule on regard regarding the timing issue.

Tim Kowal  32:45 
Yeah. Yeah. All right. We got a few legal news and tidbits you want to cover those?

Jeff Lewis  32:50 
Yeah, let's do a cup. Let's do three, three, okay.

Tim Kowal  32:52  
Want to kick us off? Or let me picture

Jeff Lewis  32:55 
I'm gonna kick one off. It's not in your notes. It's not truly news. It's more of a tidbit. I demoed clear brief this past week, and within a couple of days, signed it up for everybody at my firm. What an amazing product. This is, I gotta tell you, I had heard about clear brief and some of its marketing materials, and I thought, it's just a fancy way of hyperlinking your briefs, when you click on a brief case, you pull up your Westlaw case and it's there, you click on the record, record site, and the record comes up. And you know, I've got an amazing paralegal who could do that for me. So I thought the product is a waste of time. Oh, my God, this AI powered product does a couple of things. First of all, it's got this magic table authorities feature. Tim, have you ever gone through a brief and had to manually Mark authorities coded them so a proper table of authorities can be created?

Tim Kowal  33:44  
Oh, yeah. Yeah, of course. Yeah. Yeah. Tedious, tedious, time consuming.

Jeff Lewis  33:49 
Yeah, I usually have my paralegals do this. Collaborative has this magical button, you press the table of authorities and boom, within about two minutes, even in a lengthy brief, it is formatted perfectly to California citation standards. You can have it omit pass on and do all the other things, all your little nuances that you want in a table of authorities. No coding whatsoever, you press a button, it's magic. That's one thing. The second thing it does. Suppose you upload your record in PDF form to the cloud in a secure setting. And you're looking for a citation of the email where bad guy call somebody, you could type into a search field, it will give you 15 suggested sites of where that appears in the record using AI, not a Boolean search, but more of a fuzzy logical search. And when you get to the one that you like, and if it's correct, you press a button, and it automatically inserts in your Microsoft Word brief the citation to that evidence, and then when the brief is done, you click a button creates a late fully hyperlinked. eautiful brief that you can email to the clerk or your opponent or client with clickable links for every case and every citation to evidence. I can't endorse this product enough. It's game changing.

Tim Kowal  35:05 
Yeah, I was impressed. I demoed it last year. And one thing, one limitation, I think this was a limitation, that if you're looking for a piece of evidence, you're looking for a statement or proposition looking support for it, and you type it in, and you wind up getting a whole bunch of results that are from my own complaint, or from my clients own deposition testimony or trial testimony and things that are Yeah, that's directly on point. That's why we set it to trial and in our pleadings, I want to find where the other side's evidence supports it. That's a little bit more difficult for maybe AI to figure out. Yeah, the source, the foundation of the information is as important as a textual match for the proposition.

Jeff Lewis  35:42 

Yeah, let me say this, though. One other feature, you upload the bad guys brief. There you go. And it hyperlinks it. And if you've got the record, and if the bad guys did a pretty good job of citation in a uniform way, it will hyperlink the bad guys cases and record citations. So you could click each one and say, does the record really saying what they say? It says?

Tim Kowal  36:03  
Yeah, no, that's That's very true. By the time you get the bad guys brief, it's been some months before you looked at yours, you can't quite remember your arguments how strong they were, and then you're reading theirs. And that's that's a good point. And then they Oh, they got a citation for it. So it must be true. Yeah, you could instantly see what they're citing to you can see where their weak spots are.

Jeff Lewis  36:21 
Yeah, so my final word on this product is, it's a Microsoft Word plug in or add in that anybody could just add it in without paying for it. It's effectively a free trial. And then after a few days, I think the folks that clearly call you and ask you to set up an account. But if you want to play around with it, you go to Microsoft words, add in store and download it and I highly endorse this product. It's gonna save a lot of time on pre preparation. Yeah.

Tim Kowal  36:45 
All right. Here's another legal tidbit. But a legal news. We've mentioned a couple times about California Supreme Court granting review of cases involving COVID insurance cases. The Supreme Court recently denied review and SBA p three Poway crossings LLC versus fitness International. That's a case where the Fourth District Court of Appeal had published an opinion holding that a fitness facility was not excused from paying rent when government orders shut it down for several months because of the COVID pandemic. So there have been a lot of people watching to see if insurance coverage was going to apply to COVID related shutdowns, COVID related claims, and there hasn't been a lot of published authority. I don't know that there's any published authority. I think maybe there was one recently just a couple of months ago, but we're gonna it looks like in this SVP, Poway crossings case sometime maybe later this year, the Supreme Court will come out with a published decision about COVID coverage and insurance policies. Interesting. There was another case or another bit of news out of from Why judge Charlotte Sweeney is adding pro se summaries to her rulings. I thought this was interesting. Here's judge Sweeney's comment about the importance of giving some summaries that can be digested easily by non lawyers to introduce the holdings of cases that come out. The quote is the idea that we could simplify this in a brief introductory paragraph and help that person understand the bottom line of a decision is really appealing to me. Judge Sweeney is a district judge from the United States District Court of Colorado. I thought that's an interesting case. I think, you know, anything to make the cases we get a lot of cases coming out of our appellate courts. And some of them do provide, you know, helpful synopsis of what they state I think our California Court of Appeals do a good job of doing that. So I endorsed that practice.

Jeff Lewis  38:35 
Yeah, no, it's fantastic practice justice Rubin of the second district justice beds worth of the fourth Appellate District, both two amazing jobs in the writings and summarizing nicely the case before getting into the weeds. And in particular, if either of you are listening to this podcast, I'd love to have you on as a guest.

Tim Kowal  38:53 
Absolutely. All right. One other I thought it was interesting. That is the case we could do a summary on but judgment creditor could was unable to seize an Academy Award Oscar, this case involved versions of a post judgment order. The court ruled that by virtue of a contract between the Academy of Motion Picture Arts and Sciences and the award winner David Ward, who won the 1974 for best script in the state for the sting. Yeah, but the Academy had the right contractual buyback right first right of refusal at $10. So the judgment creditor could not seize the Oscar until the academy was first given first right of refusal to buy back the Oscar for $10. So that limited the value of the Oscar to $10. And the Academy had a first right of refusal thought it was an interesting case. You ever want to ensure that an asset a valuable asset cannot be seized by a judgment creditors make it subject to a first right of refusal?

Jeff Lewis  39:48 
Yeah, although the academy award contracts might be given a lot more deference than let's say, a sham contract to avoid collection.

Tim Kowal  39:59 
Okay, It would. You said only three Jeff. And I'm going to I'm going to cheat and do one more in here. This was an interesting one about the CCP 998 offers. Oh, yeah, Jeff, this is just such a quagmire these 998 offers, you know, you just when you think you understand that there's a case that throws you upside down. So in this recent case, and holds that the 998 offer applies, even where a case settles. So you know that if you make an offer and you don't beat it in the judgement, then you're going to be liable for costs and expert fees. That rule applies even if the case doesn't go forward to a judgment and you settle for less than the offer. But this was a split decision. Acting Presiding Justice Ronald Roby dissented, arguing that the cost shifting provisions of 998 should apply only where a plaintiff suffers a defeat at trial, or gives up the fight, not where there's a settlement.

Jeff Lewis  40:48 
Yeah, this is an interesting one. I you know, without dissent, maybe it'll go up to the California Supreme Court. I'm struggling to figure out why there was a settlement that didn't deal with all the issues, attorneys fees and costs, why they left costs open, but okay.

Tim Kowal  41:00 
Yeah, yeah, that seems like it may have been an oversight. Yeah.

Jeff Lewis  41:05 
All right. With that, let's close this episode out. We want to get thank casetext for sponsoring the podcast each week, we include links to our cases, we discuss from with casetext daily updated database of case law statutes, regulations, codes, and more. And remember, listeners of our podcast, join a special discount on casetext. casetext basic research at That's

Tim Kowal  41:30 

And if you have suggestions for topics that we should discuss in future episodes, or guests that we should invite on the show or if you would like to be a guest and you have a great story or topic to discuss on the episode we'd love to discuss having you on, please contact us at either one of our email addresses if you can find them there on the State Bar website or you can email us at info at cow And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  41:58  
See you next time.

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