The California Appellate Law Podcast

Maxine Waters’ SLAPP, 5pm Filing Deadline, “Snitch Rule” & More Recent Legal News

June 06, 2023 Tim Kowal & Jeff Lewis Season 1 Episode 89
The California Appellate Law Podcast
Maxine Waters’ SLAPP, 5pm Filing Deadline, “Snitch Rule” & More Recent Legal News
Show Notes Transcript

Our regular roundup of noteworthy appellate decisions and legal news includes these stories:

⚠Did a Covid-era jury cut short its deliberations (to just one hour) because it wanted to get out of the cramped jury room? Plaintiff thought so, but did not make a record of having raised a timely objection. Held: Objection forfeited.

⚠Did the failure to raise an affirmative defense in a joint pretrial order forfeit that defense? The 9th Circuit held it did, but Judge Bumatay thought it was raised indirectly and the lack of a more explicit assertion did not prejudice the plaintiff.

🤚Suit against Maxine Waters for falsely saying her opponent was “dishonorably discharged” may go forward: evidence that Waters was shown a military document refuting her charge, and Waters’ failure to conduct any other investigation, supported plaintiff’s showing of actual malice for purposes of defeating the anti-SLAPP motion.

📃Record defect resulted in California Court of Appeal resulted in affirmative via a rare “memorandum decision.”

✉60-day deadline to appeal is not triggered by file-stamped order unless it attaches a proof of service.

🗣New snitch rule would impose a mandatory duty to report violations of other lawyers.

👩‍⚖️Oral arguments at U.S. Supreme Court run long by average of 30 minutes.

💼Supreme Court makes it easier to preserve issues raised in summary judgment motions in Dupree v. Younger.

🛑Federal courts to wind down remote access as US COVID emergency ends.

🕔3d. Circuit to impose 5:00 p.m. filing deadline.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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

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 hosts we try to bring our listeners of trial and appellate attorneys some news and cases and insights they can use in their practice. As always, we appreciate it if you recommend the podcast to a colleague, if you find it useful that is,

Jeff Lewis  0:36 
and we want to thanks casetext our sponsor for the podcast. casetext is, a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. casetext right on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments. In March 2023. casetext launched co counsel, the world's first AI legal assistant to counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy listeners of our podcast enjoy a special discount on casetext basic research a That All right.

Tim Kowal  1:15  
Well, Jeff, let's catch up on some recent cases and news, shall we we've got few cases and news tidbits about changes to court procedures and practices coming 5pm filing deadline. We'll talk about that a little bit. And but first, let's talk about some cases involving some waiver and forfeiture issues. And Jeff, you've got an interesting slap case involving a high profile politician. But let's start off Jeff with your case you wanted to discuss Perry versus Kia Motors.

Jeff Lewis  1:44
Right this first case was handled by friends of and past guests of our show a jimmies at and and Corey Webster and a published decision from this month we're recording in May from the fourth Appellate District Division Three airy V Kia Motors. There's a new rule of forfeiture I had not come across before. That's why I flagged this opinion for discussion. I've heard a forfeiture due to failure to raise an issue and an opening brief. And I've heard a forfeiture due to citations to the record. But Tim, have you ever heard of forfeiture due to misrepresentations to the court?

Tim Kowal  2:16  
No, I can't say that I have it sounds almost like an issue sanction or a form of this entitlement.

Jeff Lewis  2:22 
Yeah, that's exactly right. And, by the way, it's never a good sign when a court of appeal is citing to the rules regarding on attorneys ethical duties of candor to the tribunal from the decision, it says so Perry's counsel not only misrepresented the record, but ironically conceal the comments that would have shown their claims to be false. An attorney is an officer of the court knows the court a duty of candor, Perry's counsel failed to fulfill that duty here. And as a result, we deem the jury instruction issue forfeited. Yeah, I found that interesting, you know, never a good idea to misrepresent things or conceal things a court of appeal. But in addition to tarnishing your personal reputation, it doesn't serve your client. Well,

Tim Kowal  3:00  
no, no, certainly not. The way I understand the basic procedural setup in this case is that there was an objection that this was a jury trial. And the plaintiff I believe, made an objection that after the jury was sent to deliberate that the the jury room was too small, and the plaintiff made an objection and I made the pitch to the trial judge that the jury should be allowed to use the entire courtroom for fear that the small room would cause the jurors to fear for COVID. And they might cut their deliberations short and give short shrift to their duties. But this issue was not properly raised on the record.

Jeff Lewis  3:35
Actually, the earlier there's two there's two big issues in the case jury instructions and the deliberation room and the jury instruction issues where appellant counsel, not our friends, but the folks on the other side, had said one thing in the opening brief that was contradicted by the actual facts below. And that's where the jury instructional issue was deemed forfeited. And then later, there was an issue about whether or not counsel had lodged an objection to the deliberation room, whether the size of the room was big enough in light of COVID, etc. I guess the jurors only deliberated for an hour, and extrapolated from that one hour of deliberation that it must be because they were uncomfortable in the room. And apparently the requests never made it into the record on appeal. And that was fatal to the argument.

Tim Kowal  4:18
Yeah, I understand. There were contradictory declarations. There's a declaration submitted by plaintiff's counsel saying that this issue was raised and then a counter declaration by defense counsel saying no, that didn't happen. And apparently that that was not resolved. declarations are not a substitute for an oral record. You can have a reporter's transcript reflect what happened on the record, you could have a settled statement. So that's that would probably be the best play for the plaintiff. If that colloquy really did happen, perhaps it didn't at least that's what the Court of Appeal, presumed here is that if it's not in the record, it didn't happen. We have to indulge all inferences that would support the judgment are not going to go out of our way to presume that's something not reflected in the record that would pass Simply overturn the judgment did happen.

Jeff Lewis  5:02  
Yep. Yep. And congratulations to Jimmy and Cory for this great result. Cory is gonna be coming back on the program. I think in a future episode. I want to chat with him and see. I'm curious if we were embedded counsel during this trial, be curious to see what it was like to be embedded counsel during a COVID trial?

Tim Kowal  5:16  
That's right. All right. Well, Jeff, before we get to your interesting slap case involving Maxine Waters, here's another case involving a forfeiture issue. But this one appears to be a more innocent version of a forfeiture. And it's actually pretty hyper technical, which makes the result a little bit surprising, at least to me, Jeff, you tell me if you find the result, surprising. What happened at the end of this of the trial in IV versus AstraZeneca. Pharmaceuticals, there were two surprise post trial moves possibly driven by embedded appellate counsel, the plaintiff first lost her case, but then won it back. What happened here is the employee won her whistleblower claim after a jury trial. But then defendant AstraZeneca moved for judgment as a matter of law, and won that Motion for Judgment as a matter of law, the grounds for the JMO L is that the employee failed to prove a sufficient factual nexus to Oregon to establish a claim under the Oregon State's whistleblower statute. So that was the Tough break for the employee found that the judge had agreed that she didn't sufficiently establish as a factual matter her Oregon nexus to the whistleblower claim, but on appeal, the employee argued that AstraZeneca never raised this Oregon Nexus argument in the party's joint pre trial order. That's the order that the parties get together and stipulate and they lay out all of the claims are going to be tried all of the defenses that are going to be tried, and those are deemed to amend the pleadings. So if they're not in there, then they are deemed forfeited. So AstraZeneca forfeited that argument, and AstraZeneca argued that the district court which had granted their motion obviously did not believe that the defense had been forfeited. AstraZeneca argued that the district court had granted Motion for Judgment as a matter of law, and in doing so impliedly amended the pre trial order, and thus included the defense but the Ninth Circuit said no, that doesn't work, the district court, while it did have the discretion to amend the joint pre trial order, it would would have needed to do that explicitly and give the plaintiff an opportunity to respond to this belatedly asserted defense and that didn't happen here. But this was only a majority panel that agreed with the plaintiff against AstraZeneca, Judge Buma Tay filed a dissenting opinion, which noted that while AstraZeneca did not, you know true did not explicitly identify this Oregon Nexus defense AstraZeneca did assert a failure to state a claim defense and pleaded that the employee was not entitled to any relief under the Oregon whistleblower statute. So the district court concluded that the lack of explicit mention of that defense didn't prejudice the employee. That's that's what the judge bootay seized on is that, you know, I get that the majority have said that you have to give the plaintiff an opportunity to avoid prejudice. But there doesn't seem to be any prejudice on the record here. There wasn't any, for example, the plaintiff didn't indicate that oh, well, if there was, if I had known about this defense in the joint pre trial order, I would have offered this evidence and this witness that didn't happen here, sir, there was no prejudice, even if there was a waiver or forfeiture. So both judge boobity wonders, I'm not sure I understand why the El Hakim case, which contains a provision that a defense is preserved at the pre trial order makes any reference to it, which at least it did impliedly. Here, Judge bootay wonders why that case doesn't apply here. So Jeff, what do you think I thought this was a little bit surprising, because it seemed a bit hyper technical, the fact that the defense wasn't included explicitly, but it was included, at least tangentially in the joint pretrial order and then didn't seem to the record didn't seem to reflect a good claim of prejudice to the plaintiff by as a result of not having included the defense explicitly in that joint pretrial order. What do you think hyper technical or right result?

Jeff Lewis  9:05  
Right results? You know, the purpose of pleadings is to put parties on notice of what's going to be litigated. And the purpose of the pretrial order, is to put the lawyers on notice of you know, what the boundaries of the trial is going to be? And a an affirmative defense of you haven't stated a cause of action doesn't put you on notice of anything. It puts you on notice that the defendant doesn't think you can make all the elements of your claim which every defendant in every case argues. So I think it's the right right result here.

Tim Kowal  9:31  
One other thing I thought was a little bit strange about this is that this Oregon Nexus claim, know that that's an affirmative defense, that seemed to just be plaintiff, you have to if you're asserting this claim, you have to establish this part of the plaintiffs burden establishing it, Jeff, I don't know if this is true for you, but I always see in, in affirmative defenses, you know, you know, is failure to state a claim really a an affirmative defense. That seems like right, that's not a there's not a burden have proof on that that's just its claim is properly stated or it's not. I don't know that it's an affirmative defense or that you waive it by not including that as an affirmative defense in your answer. That's just another thing that popped up here. Yeah, I think this was a little hypothetical, in my view, but I just don't think it's I think it's probably a typical, but I understand the result. Yeah. Yeah. All right, Jeff, let's get on to your Maxine Waters case.

Jeff Lewis  10:24  
All right. Yeah. So this is a case, you know, I file a lot of anti slap motions. Some typically the moving party of this case we're about to talk about is probably going to be cited by a number of plaintiffs opposing an anti slap motion. So if you're my opposing counsel, go ahead and skip over this discussion for about four or five minutes. So here's let me do the setup for you this question this case answers the interesting question in a context of a political political campaign. Whether a defendants failure to investigate a factual assertion can in the context of an anti slap motion, demonstrate that defendants actual malice or dealing here with public figures, New York Times actual malice, and how at the anti slap stage without the benefit of discovery, a plaintiff can squeak by an anti slap motion with a showing that the defendant knew what they were saying was false or at least acted with indifference. So the statements were made by Congresswoman Maxine Waters about Collins, a person running against waters in the November 2020 election, and Maxine Waters said Collins was dishonorably discharged from the military, and Colin sued waters for defamation. And in the ensuing an anti slap motion by waters, the issue of actual malice arose because waters is a public figure. And Collins argued that he showed waters a document that if genuine would have shown up, pardon me, I misstated that actually, Collins was the public figure because he was the plaintiff and he was running for public office.

Tim Kowal  11:52  
They would both be they're both running for a high elected office. Right?

Jeff Lewis  11:56  
In Collin argued that he showed waters a document that if it was genuine, before the lawsuit was ever filed, he showed Colin waters this document, if it was genuine, it would have shown he was honorably discharged. And that waters by failing to do any follow up investigation or Pharaoh failing to declare in this anti slap motion, that she had done any follow up investigation shedding doubt on this document, that just showing waters this document showing is is is honorable discharge in the absence of any evidence of any investigation by Waters was enough to demonstrate actual malice because the anti slap stage, you have to believe all the plaintiff's evidence unless when you look at the defendants evidence establishes a defense as a matter of law like statue limitations or absolute privileges. So this case is a really helpful case for plaintiffs seeking to squeak by and establish actual malice at the anti slap stage. And I hope my opponents are not listening to this podcast.

Tim Kowal  12:53  
There are a couple of interesting things about this case. One was that, you know, you mentioned that Collins was was honorably discharged. I may be wrong about this. I read Professor Shawn Nelson's write up on this case. And he had mentioned that, you know, while Maxine Waters was incorrect, and stating that he was dishonorably discharged, he wasn't exactly honorably discharged, he did have a lot of marks against him. And having known about those marks against him while in the military, a person not in the know, might misstep and say that he was dishonorably discharged. He wasn't dishonorably discharged, you didn't exactly come out squeaky clean either. He felt somewhere in that middle ground. And so when Collins came out with that, whatever that document was saying, See, look, I came up with a with a relatively clean bill of health, I was not dishonorably discharged. For one thing, you know, he wasn't exactly squeaky clean. And or another thing that document was not necessarily publicly available. It's not available to the general public, he had to you know, have access or show that show his identification or have some sort of military clearance to have gotten that information. So how could Maxine Waters have gotten that information that showed that her statement was incorrect?

Jeff Lewis  14:02  
Yeah, well look at the time of trial on this matter. There are a number of factors weighing in Maxine Waters favor on this issue. Let me just say, there was a box checked on this form that said reason for separation, quote, misconduct paren, serious offense closed paren, close quote. So and there was a some case involving a lawsuit by Collins having nothing to do with waters were in the narrative a court had written in that Collins had been dishonorably discharged. So waters wasn't just making things up. On the other hand, perhaps her Maxine Waters lawyers did a disservice by leaving a vacuum in terms of what Maxine Waters did after being confronted with a scrap of paper to rely on and continuing to say that he was dishonorably discharged. That was really the turning point for the

Tim Kowal  14:53  
courts. You make that statement repeatedly.

Jeff Lewis  14:55  
Correct. Correct. Yeah, yeah.

Tim Kowal  14:59  
Yeah, though. they could make a difference than.

Jeff Lewis  15:01  
Yeah. So look, there's lots of case law out there that says, failing to investigate alone is normally not sufficient alone to establish actual malice. But there's enough wiggle room in those cases and with the addition of this new columns V waterscapes, to really help a plaintiff squeak by an anti slap motion where actual malice public figures and investigation is at issue.

Tim Kowal  15:29 
Interesting case, what that one is back in the Superior Court, we'll see what happens there. If it's going to go all the way to trial or right, we're going to reach a settlement. All right, let's get back to an issue concerning record defects. There was a recent case where the lack of record lead to an affirmance, which is not unsurprising, the surprising part was at the affirmance was by a memorandum decision. And which leads at the suggestion that we'll get to is that if you see a record defect, if you're the respondent in an appeal and a California appeal, and you see record defects committed by the appellant, think about asking the court of appeal to dispose of the case by a memorandum decision. So here's what that means. So most appellate opinions in California include a full summary of the facts and a full statement of the procedural history. This is consistent with a constitutional entitlement to a reasoned opinion. But sometimes the Court of Appeal can issue a mere memorandum opinion much, much more abbreviated statement of the disposition of the court. memorandum opinion can be appropriate when the result is compelled by authority on which there's no real question. So here's what happened in young versus Longstaff. Out of the sixth district court of appeal in California in May 2023. The court determined that the absence of an oral record supported and affirmance. Again, not surprising, but the affirmance was via memorandum opinion rather than the full legal essay, plaintiff Young had challenged the application of the statute of limitations but did not include an oral record of the trial, including for witnesses concerning Young's acknowledgement of the debt. This involves a repayment of a debt and the promise to pay it back. And that all bore all that important evidence bore on the issue of when did the statute of limitations begin to run? In such a case? No further examination would be fruitful, the Court held as people vs. Garcia recognize the individually prepared legal essay referring to the long, full, reasoned opinion issued by court of appeals. The individually prepared legal essay, the product of countless hours of precious judicial time is an impossible procedure for handling today's monstrous caseload. And in the majority of appeals, it serves no useful social purpose. So the takeaway from this case, Jeff, is that if you're the respondent, and you see that the appellant has failed to supply an adequate oral record, in addition to pointing it out and explaining why the court of appeals should just affirm on the basis of those record defects, you might also suggest that the Court affirmed by a memorandum opinion in sight to the California standards of judicial administration, title eight standard 8.1. And people versus Garcia 2002 case will cite those in the show notes.

Jeff Lewis  18:09  
So would that be like a motion by a respondent for summary disposition? Or would that be a like a separate section in your respondents brief when you're asking the court to resolve this by memorandum opinion?

Tim Kowal  18:21  
I would probably just put it as a separate section in my respondents brief. I haven't seen a motion for that it wouldn't be I guess you could separately file a motion to dismiss. And that basis, maybe this this memorandum opinion is kind of a middle ground between, it's not as strident as a dismissal as a frivolous appeal, the court might take the bait and say, Look, if we can get out of having to write up the full legal essay and just dispose of this memorandum decision, maybe they'll take that bait. All right. Next case, this is about the issue of when the 60 day deadline runs to file the notice of appeal. We talk about this every now and then, Jeff, because this issue comes up quite a bit. Everyone knows that the time to file an appeal is 60 days. But sometimes it's very tricky to know when that 60 days begins to run, or even whether the set shortened 60 day deadline applies, because otherwise the deadline is 180 days. Jeff, everyone knows also that to look out for a Notice of Entry because that's one of the types of documents that will trigger the 60 day deadline. But the other type of triggering document is a file stamped copy of the judgment or order showing the date that it was mailed, and that triggering document can be much more difficult to satisfy. So here's what happened in a construction industry force account Council versus city of Huntington Beach, a 2023. case it's an unpublished opinion. But the so what happened here is that the court ultimately agreed with the appellant that although a file endorsed copy of the judgment was served, and although a certificate of mailing was also are the two things were not in the same document. And so for that reason could not be combined to create the triggering document described under Rule 8.104. So the appeal in this case was timely, I've got a write up of this case. So if listeners are interested in it, I'm probably not going to belabor our discussion today with this technical rule. But this, I just wanted to lay this out there as an important issue to look for if you're when you're trying to figure out what the deadline is to file your notice of appeal. And it's based on the triggering document as a file stamped copy of the order. I have seen multiple cases of this Jeff, where the file stamp copy of the order does not show in the same document, that data was served. And so it doesn't satisfy that 60 day deadline. That's why it was a lot easier if you're the winning party just get out a Notice of Entry of Judgment that much more cleanly, and and unequivocally starts that 60 day period. Right,

Jeff Lewis  20:56
right. Okay. Next thing we want to talk about on today's show is a proposal which is very likely in the week a Tom Gerard his antics, a proposal to impose a mandatory duty on lawyers to report violations of the law committed by other lawyers, also known as the snitch rule. I guess this is a rule that is very common in other jurisdictions. But California has for a long time resisted implementing any kind of rule imposing a mandatory duty to report on other lawyers. It's a departure I guess, by California for the ABA rules. And the bottom line is this. Once this rule gets implemented, and I think it's sitting before the California Supreme Court right now, we're going to have an obligation if we observe an act of crime, fraud or misappropriation of funds. If that crime fraud or misappropriation raises an issue regarding an attorney's honesty, trustworthiness or fitness as an attorney, you got a duty to report it. I gotta tell you, in a vacuum seems like a great idea. Why wouldn't we want crimes reported to the state bar, but in practice, I see in the context of anti slap motions, a lot of misuse or misunderstanding of the term extortion in the context of settlement offers, and where the line is between legal and illegal conduct. And I could see a lot of lawyers getting overly reported to the state bar because opponents and litigation think they've crossed the line on extortion.

Tim Kowal  22:30  
Yeah, yeah, I agree with you, Jeff, about extortion always seems like such a hazy area, where it can be very easy to make an arguable case that someone is engaging in extortion. Another thing that is a little bit scary about, let me read just a couple of things from this link that you sent me about the proposed rule. California is the only state that has yet to adopt some version of the ABA model rule 8.3, which establishes a duty to report misconduct, that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. You know, you mentioned about, you know, snitching on potential criminal behavior or fraud and mismanagement of trust funds, those things seem, you know, pretty beyond the pale. We want other people looking out and making sure that that those things aren't happening. But then you get into that slightly broader area of any other thing that raises a substantial question as to lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. And I wonder how far that concentric circle expands? do social media posts bear on a, or opinions about, you know, controversial topics, bear on a lawyer's honesty, trustworthiness or fitness?

Jeff Lewis  23:44  
Yeah, yeah, I can absolutely see an overly broad construction of this mandatory duty, especially trial lawyers in the heat of

Tim Kowal  23:52  
battle. That's right. We'll see. And then maybe the I'm sure that there will be a lot of frivolous complaints filed. And maybe those themselves will be subject to complaints that they raise a substantial question about the lawyer's honesty for filing frivolous ethical complaints.

Jeff Lewis  24:08  
Yeah. By the way, I get asked a lot this question, some free advice here. Can you sue for malicious prosecution when someone files a State Bar complaint against you that's knowingly false? I don't know the answer to that. The answer's no. Unless the State Bar complaint results and actual charges being brought in, you win, then you could file malicious prosecution action.

Tim Kowal  24:29  
Okay. You have to beat it on the merits first,

Jeff Lewis  24:32
and you have to be charged. So there's no relief for somebody who's just got frivolous complaint never goes anywhere. If the State Bar agrees it's frivolous, you go nowhere. Got it. Okay, we're gonna jump into some tidbits, but before we do, Tim, I have to tell you, we're gonna for the first time ever issue a retraction on our podcast to avoid being sued for defamation. On a prior episode of our podcast, we had accused Fran Campbell, of being a font and Monster by using not century school book in our briefs by Garamond. And she has since clarified that she is a font monster. Not for using Garamond but for using Cochin, which I think is a made up name of a font but Cochin instead of century school book. So without retraction in mind, I think the record has been cleared.

Tim Kowal  25:21  
record has been clear, we reserve our right to make further retractions. To the extent that coaching may prove to be a an actual font,

Jeff Lewis  25:32  
yeah, hopefully the makers of coaching are not listening to this, but if it exists,

Tim Kowal  25:37  
all right, let's get to some tidbits here at first up, I just want to mention, this comes up in a on a perennial basis. But here it comes up again, Senate Judiciary Committee Chairman Dick Durbin, and a pipe bipartisan group of senators has reintroduced legislation recently to allow a live television coverage of US supreme court proceedings. This we'll see what happens to that. Do we add as a podcast to have an opinion on television coverage of US supreme court proceedings?

Jeff Lewis  26:04  
Absolutely. We should absolutely have it. You know, I thought it was great during COVID When you could listen to it on the audio. And I know there's always the argument that if you have TV or audio that lawyers will grandstand and do things that they wouldn't otherwise do. But I think at that level with the caliber of lawyers who make it that far to the US Supreme Court, I think the risks of grandstanding are far outweighed by the informing the public about what happens during a supreme court proceeding with the body languages of the justices are during certain argument. Little sunlight never heard anything.

Tim Kowal  26:40  
All right, well, I'm gonna have to register a dissenting opinion to that one, I think that we are already too too far down the road toward Idiocracy. And that all of the clips that don't really die, step into clips of memes, and who knows what AI is going to allow people to do with with the footage of Supreme Court justices and the advocates there.

Jeff Lewis  27:00  
So what about audio? Are you against audio, too?

Tim Kowal  27:02  
We already have audio, don't we? Well,

Jeff Lewis  27:05  
it started during COVID at the loud audio and they haven't scaled it back. Would you be in favor of them rolling back to pre COVID times and not allowing releasing audio in terms of live they've had audio released after the fact but live audio?

Tim Kowal  27:17  
Yeah, that's right. I hadn't thought about that. But it's been out and around, you know, that no one asked me about it before they rolled it up. And now in there, I'll go with the status quo.

Jeff Lewis  27:27
Okay. All right.

Tim Kowal  27:29  
Okay, next tidbit 80%. Speaking of the US Supreme Court, oral arguments 80% of Supreme Court arguments went over their allotted time, this term for an average of nearly 30 additional minutes over the time, additional 30 minutes additional. That's like all the time we get here in California Court of Appeal. This is time they get in addition to

Jeff Lewis  27:54
I was surprised. Yeah. Yeah.

Tim Kowal  27:56
I mean, did they do that bad job on the briefs? Jeff.

Jeff Lewis  28:01  
Right. That's, that's right letters. Dan's equip about I mean, it's, you know, my request is always whether I'm the appellant or respondent always requests nine minutes. If you can't get it done in nine minutes. Your briefs are really bad.

Tim Kowal  28:11  
Nine minutes. That's the price is right tactic. All the people who have requested 10 minutes you get to go before them. Yeah,

Jeff Lewis  28:18  
that's right. All right. I got another tidbit. I want to share here, Tim, I wanted to imagine you're at a New York market. You're hungry, your kids are hungry, you're going down the aisle looking for something to eat and you spot on the side of the aisle a package of five cheese ravioli, the package says five cheese ravioli, no hyphen, and there's a picture and on the picture, there are five pieces of ravioli, and you get home and you open it up for you and your wife and your children. Turns out there's only four pieces of ravioli in there. And when you read the ingredients list, you could identify not five but only four distinct cheeses uses in the ingredients. Is your first response to file a lawsuit for false advertising.

Tim Kowal  29:07  
No, my No I abide by the maximum don't make a federal case out of it.

Jeff Lewis  29:12  
Well, I can say that in this case, no one made a federal case out of it, but they did make a state case out of it. Earlier this month, a fella by the name of Arnold Wachtell sued Otto Manelli brothers, which I guess is a famous brand in New York famous deli or something for false advertising. Because if only there had been a hyphen between the five and the cheese, perhaps he would have been on notice that there weren't actually five ravioli cheese. And if only he understood, and read the ingredients list a little more thoroughly there was a fifth cheese listed, but it totally destroyed his willpower when it came to selecting the right product to feed himself and he sued for $50,000 in damages as a result of a violation of the New York laws regarding labeling food products.

Tim Kowal  29:59  
Okay, A did did a play into his his argument that there that ravioli was not plural on the package.

Jeff Lewis  30:08  
Yeah. Nobody's asked him that. I'm sure it'll come up in depositions.

Tim Kowal  30:14  
Maybe he felt ravioli in Italian, is it? I think they still use the plural s, don't they? Or is that

Jeff Lewis  30:22
obviously the these kinds of lawsuits they can serve a public good, you know, someone has a nut allergy, you know, and disclosing whether or not there's nuts in a product or sugar issues, you know, disclosing whether something has sugar or not. But this is just ridiculous. And dare I say cheesy. This in the one. There's one down in Florida that was filed a few months ago. But over the time to prepare microwave macaroni and cheese, the package said it's like three and a half minute, the macaroni and cheese. Someone sued because it's true that the cooking time was three and a half minutes. But there's more time to kind of open the package and the spoon it onto a plate. Some lawyer thought it'd be a good idea to file that list lawsuit. And this is why lawyers have a bad name in our country.

Tim Kowal  31:01  
Yeah. Cooking time versus total preparation time. Yeah, yeah, we all got to come down. Put our feet on the ground sometimes. Yeah. Alright, a couple other quick stats here. Federal stats, Federal Court stats are out the median time for civil appeals in the ninth circuit is now 12.6 months. Not too bad. That's pretty good. That's pretty good. Another quick stat, California bar exam pass rate down to 32.5%. Yeah. And on a

Jeff Lewis  31:35  
related note, did you see there was a story about California Bar entertaining, I don't think it's yet formalized. But they're entertaining thoughts about loosening up the reciprocity arrangements with other states so that if you pass a bar in another state, you could wave into California.

Tim Kowal  31:49  
I am here to talk about that. There's the the UB II, that I believe that the California has not, has not joined on to that the universal bar exam,

Jeff Lewis  31:57  
right? Yeah. Now this is just be straight reciprocity. Cynics think that state bars look into, I don't know, raise some funds. And by allowing admissions to increase to the State Bar, they can raise more money.

Tim Kowal  32:09  
I like the reciprocity rules. I know that we have we talked about some of the trouble we have with the quality of some of the practitioners in our state. But I don't know that that making the bar exam harder or easier is made a lot of a difference on that.

Jeff Lewis  32:25  
Yeah, no, I'm cool with as long as they have an asterisk next to their name like Well, I'm pleadings and stuff. Sounds they have an asterisk. I'm cool.

Tim Kowal  32:31  
Right? Okay. Here's another. This one I found shocking. Federal courts are now reported to be planning to wind down remote access as the US COVID Emergency ends. This is reported from Reuters, the remote access, the country's federal district courts of shift did shift to allow phone and sometimes video access to hearings after the pandemic had shuttered courthouses in March 2020. Remote Access to criminal proceedings that were authorized under COVID area legislation, and it had ended already earlier this month in May. And it will end for other cases as well start on September 21 2023. What do you think about that, Jeff, we talked about on the podcast about, you know, how much good for efficiency these remote proceedings have done, but now they're going to they're going to end it in the federal courts.

Jeff Lewis  33:22  
Yeah, you know, in some cases, remote is the norm. Now I had a case recently where I drove from lovely Palos Verdes to Van Nuys to make an appearance. And it was on a slot matter. So I thought it was super important. And I show up as the only lawyer in the audience. Everybody else was on remote. The judge never took the bench and the courts, audio equipment wasn't working great. So the court couldn't hear me very well, as I made my appearance. You know, I think for non evidentiary hearings and state courts, I think remote proceedings should last as long as they could. It's a real access to justice issue, and I think federal courts should follow suit.

Tim Kowal  33:56  
I do too. I exactly cosign with that, you know, evidentiary proceedings, and you're in trials, I need to be in person. But everything else, I favor that remote access. I think that that's going to be unfortunate in September when when that ends in federal courts. Here's a bit of procedural news update from the US Supreme Court recently, the unanimous decision in Dupree versus younger decided that legal issues that were rejected at the summary judgment stage do not need to be reasserted after trial, there was a question whether under FRCP 50, that those legal issues needed to be raised again, in a post trial Motion for Judgment as a matter of law, a Court of Appeal said no for pure issues of law, we do not need to burden the record and the resources of the district court by raising these legal issues again, and just another me to emotion just for the sake of some, which would have been a pointlessly hypothetical procedural rule. Okay. And then the other bit of news that we're going to talk about this more when we have been chats on the podcast In a couple of weeks, but just as a preview, the Third Circuit Court of Appeals has changed its filing rules so that we've all become accustomed to being able to file our our motions and other filings by 11:59pm. On the due date of the filing, Third Circuit says no more, we're gonna go back to the 5pm rule. So your electronic filings need to be filed by 5pm. If you're in the Third Circuit, the the rationale behind the rule is quality of life. They don't want people having to work late into the evenings to finish pleadings, and filings, just get them done by 5pm. And then go home and spend time with your family. So there's a nice benevolent rationale behind the rule. But we're all anxious to see how that pans out. Maybe we're just gonna have to pull all nighters the day before the filing?

Jeff Lewis  35:50  
Yeah, that's ridiculous. You know, I'm with the camp that, you know, judges and clerks are not sitting at their desks at 501. waiting, hoping, praying that my brief arrives on time. We're all professionals. We're all adults, which we will file it whenever we want up until midnight, if we want to stay up late and our staff stay up late should be entitled to do that. All right,

Tim Kowal  36:12  
let's do I've got one other tidbit here. Jeff, I don't know about you. But a book in the talk. We started with talking about televising US Supreme Court arguments. Here's another tidbit about the state of Civility by at least some of our fellow practitioners law. 360 reports that an attorney who called judges scumbags and other slurs will face sanctions after the attorney filed a motion asking a Florida State appellate panel, if those judges and the trial judge weren't the dumbest twits. He didn't say twits was another word to adorn a bench or just dumb scumbags. A panel on Wednesday asked the attorney to explain why he shouldn't be sanctioned for violating court rules. Jeff, I don't know. I mean, are people just after the headlines? Are they just after the release that you get when you put an insult to somebody like you do on social media is oral argument, especially when it's in front of a huge audience. Going to be just another way for people to vent?

Jeff Lewis  37:12  
I'm just guessing this is an isolated case where lawyer maybe wasn't fully on his meds or perhaps was overcome with emotion. And that's to do with TV, audio or an audience. It's more about that individual attorneys. emotional state of mind.

Tim Kowal  37:29  
Yeah, this one's a little over the top. But then the story goes on or another last law 360 story goes on talking about the use of hot mess by by practitioners, even judges. Let's see this was an attorney was excoriated on Twitter for calling us Solicitor General Prelude guards work a hot mess in a brief filed in the US Supreme Court, but law 360 Notice that the language and tone in the brief do have precedent and that the specific phrase hot mess has shown up in multiple times in federal courts and even used by judges themselves. Yeah, no myth, you know as a as a supreme expletive type of insult. But what is a little bit colloquial and childish? Well, yeah,

Jeff Lewis  38:11  
look, it's not a phrase I would ever use in briefing or an oral argument, but I've seen it I've got a case right now against a J six defendant a civil case by name is Gina Bisignani. And she was a witness in a criminal prosecution back east and judge Amy Berman Jackson referred to basic Nanos testimony as are referred to visit nano as being a hot mess on the stand and said she was one of the worst witnesses you've ever seen in her career as a judge. And it's a descriptive term and you know, kind of like your views on cleaned up. Maybe judges have a little more license to use that phrase than lawyers do.

Tim Kowal  38:45  
Yeah. Okay. If you use cleaned up, then you're you're more likely to use hot mess. Is that what you're suggesting?

Jeff Lewis  38:51  
The Venn diagram? No, I'm just saying judges. Judges, I think you can get away with using colloquialisms a little more than lawyers do.

Tim Kowal  38:59  
It's true. All right, Jeff. That's it for me. You got any more? That's it. I'm out. All right, well, then let's wrap up this episode. Let's thank our sponsor once more casetext for sponsoring the podcast each week, especially on episodes like this, Jeff and we talk about cases news. We include links to the cases that we discuss using casetext daily updated database of case law statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on case text basic research at case That's A L P. All right.

Jeff Lewis  39:35
If you have suggestions for future episodes, please email us at info at Cal Or if you have a five cheese ravioli you'd like us to sample go ahead and ship that off to us.

Tim Kowal  39:44  
Or if you want to tell us that our podcast is a hot mess.

Jeff Lewis  39:48 
In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  39:53  
All right, see you next time.

Announcer  39:54  
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest pieces of 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 That's c a l Thanks to Jonathan Cara for our intro music. Thank you for listening. And please join us again