The California Appellate Law Podcast

Two-Party Consent Privacy Laws Might Be Unconstitutional, and Other Recent Cases

July 25, 2023 Tim Kowal & Jeff Lewis Season 1 Episode 96
Two-Party Consent Privacy Laws Might Be Unconstitutional, and Other Recent Cases
The California Appellate Law Podcast
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The California Appellate Law Podcast
Two-Party Consent Privacy Laws Might Be Unconstitutional, and Other Recent Cases
Jul 25, 2023 Season 1 Episode 96
Tim Kowal & Jeff Lewis

One of the most biggest recent case is the split decision out of the 9th Circuit holding that a prohibition on secretly recording communications between two people violates the First Amendment. Project Veritas v. Schmidt, No. 22-35271 (9th Cir. July 3, 2023). The statute at issue here was an Oregon statute. But it suggests that two-party consent statutes, such as California’s likewise may be unconstitutional.

We also cover:

  • Does "sexually derogatory" or "misogynistic" music in the workplace create employer liability? Possibly, says the 9th Circuit. Sharp v. S&S Activewear (9th Cir. - June 7, 2023).
  • Justice Gorsuch’s statement that COVID emergency orders are among `greatest intrusions on civil liberties.' (Statement here.)
  • “Diversity” in the judiciary.
  • Briefing extensions tighten up in the 9th Circuit.
  • PJ Rubin on oral argument: "It's a very important thing to have lawyers feeling comfortable -- but not too comfortable -- in the courtroom. (Via Ben Shatz.)
  • The citation signal “semble” that ignited #appellatetwitter.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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

One of the most biggest recent case is the split decision out of the 9th Circuit holding that a prohibition on secretly recording communications between two people violates the First Amendment. Project Veritas v. Schmidt, No. 22-35271 (9th Cir. July 3, 2023). The statute at issue here was an Oregon statute. But it suggests that two-party consent statutes, such as California’s likewise may be unconstitutional.

We also cover:

  • Does "sexually derogatory" or "misogynistic" music in the workplace create employer liability? Possibly, says the 9th Circuit. Sharp v. S&S Activewear (9th Cir. - June 7, 2023).
  • Justice Gorsuch’s statement that COVID emergency orders are among `greatest intrusions on civil liberties.' (Statement here.)
  • “Diversity” in the judiciary.
  • Briefing extensions tighten up in the 9th Circuit.
  • PJ Rubin on oral argument: "It's a very important thing to have lawyers feeling comfortable -- but not too comfortable -- in the courtroom. (Via Ben Shatz.)
  • The citation signal “semble” that ignited #appellatetwitter.

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 Kowall. Both Jeff and I are certified appellate specialists and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, we greatly welcome referrals to the podcast. If you find this helpful, please refer it to a colleague.

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

Tim Kowal  1:14  
you know, Jeff, on the topic of legal technology we just talked about, I'm gonna I'm gonna get my big official announcement of my new law firm shortly here when I get my website up. But I can tell listeners and you that I'm you know, in transition here, and during this transition phase, I have just been using case text for my legal research. I don't have Westlaw or Lexus at the moment when not using one of the big guys just using case text. And then on the subject of another legal tech that I found indispensable, especially, you know, being my own practice now, and without a deep bench in terms of paralegal support, I had to do an appellate appendix or actually an excerpt of record for a Ninth Circuit appeal. And what do you do when you don't have a paralegal that they're ready to prepare your appellants appendix or excerpts of record? Well, there's legal tech available to do that, I'm going to see about maybe getting one of the folks from type law to come and talk about their product, because it's an amazing product they the primary product is it helps you put together your brief in, you know, rule compliant form with a certificate of compliance and a certificate of word count. And it automatically, seamlessly produces your table of contents and table of authority. So it's a nice product, preparing the brief, most of us appellant attorneys usually are pretty good at doing that. Anyway, what really blew me away is that you can build your appellants appendix and extra to record on the fly. And maybe this is getting too deep, deep in the weeds for our trial attorneys. But any appellate attorneys knows the agony of finding a document at the you know, at the end of the briefing, process that and then go into their paralegal and saying, Oh, by the way, can you slip in this additional document into the excerpts of record or appellants appendix? What do you mean, I have to tear the whole thing apart, redo the indexes, redo the Bates numbering and you're going to catch hell from your paralegal or legal assistant putting that together. But you can do that on the fly with type law. Well, we should talk set aside a maybe a legal tech indispensable legal tech tools episode to do in the near future here. Hey, I

Jeff Lewis  3:02  
haven't tried it. But could you use that program for you know, when you're in complex civil litigation, and you have a meaty evidence based motion for summary judgment with a thick compendium of evidence can use that program to put together your compendium of evidence?

Tim Kowal  3:16  
Hey, that'd be a great question to ask the people at type law I okay. I don't see why not. I think it's it's built for to comply with the rules for for an appendix or excerpts of record. But it's basically the same thing. It's just page numbering, keeping all your documents in the right order and building an index on the fly, which can be very simple even for a trial court Compendium.

Jeff Lewis  3:35  
Yeah, because second to finally an appellate brief headaches for my paralegals are producing a correct compendium of evidence and making on the on the fly changes in support of evidence for summary judgment.

Tim Kowal  3:48  
And then there's the agony of seeing after you have done everything and pushed it through the filing system. The agony of the next day seeing the email in your inbox saying filing rejected, and then having to read the clerk's notices about all the things you did wrong. Yeah, yeah. Okay. Well, Jeff, today, we have a cases and tidbits episode, and I think we're gonna be heavy on tidbits, we're gonna go briskly through a number of get about a dozen or so different cases and bits of legal news that we think maybe our audience would find interesting. We wanted to start with the Project Veritas versus Smith case, this was a Ninth Circuit decision this month, July 3 2023. The Ninth Circuit in a split decision in that case held that Oregon's prohibition on secretly recording communications between two people violates the First Amendment. So this is a pretty significant opinion, Jeff, it holds that the Oregon statute which is very much like the California statute that prohibits secretly recording communications unless you have both parties consent violates the First Amendment. Judge Ikuta authored the majority opinion judge Kristen dissented, although the plaintiff in the case wanted to secretly record communications involving public issues such as public Officials and BLM officers the holding seems to apply equally to secretly recording even routine conversations with neighbors, co workers etc. Similarly, while the narrow holding was that the law at issue was unconstitutional, because it allows some non consensual recordings, particularly body worn cameras by police officers, but not others, most state laws contain the same exception. So for states like California with two party consent statutes, if the opinion stands, it's arguable that the Project Veritas versus versus Smith holding casts doubt on whether they would survive constitutional scrutiny.

Jeff Lewis  5:38  
Wow. Interesting. Yeah. Be interesting. See if someone brings a challenge to California's laws. Interesting.

Tim Kowal  5:44  
Yeah, this is gonna be one to watch this analysis that I that I just read comes from Professor Sean Martin at the University of San Diego Law School. He keeps a blog on on big cases that come out of the Ninth Circuit and California courts. So hat tip to Professor Mark Martin for pointing to that Project Veritas decision. All right, next up out of also out of the ninth circuit. The Ninth Circuit reverses a trial court's dismissal and holds that it might well constitute sexual harassment for a business to play sexually derogatory or misogynistic work music in the workplace, the case is sharp vs. S and S activewear. It's a June 2023 decision. The opinion is by Judge McCune. And, you know, I think, Jeff that attorneys who represent employers need to take note because this decision could likely affect business owners. And they'll have to take careful note of what businesses what they play over the over the speaker during the break room or other public communal areas in the workplace. The Ninth Circuit reverses the trial court's dismissal and holds it might well constitute sexual harassment for businesses to play sexually derogatory or misogynistic music in the workplace.

Jeff Lewis  6:57  
Yeah, you know, actually, this is a decision I read. I remember when it came out. And I thought it was super interesting that this was the trial court or the district court dismissed this at the pleading stage as a 12 B six motion as opposed to like a motion for summary judgment. Yeah, be sure to see how this case actually turns out once the evidence is developed. And there's either a motion for summary judgment or trial.

Tim Kowal  7:15  
Yeah, I think it's gonna be it calls to mind I was gonna say, you know, just to just play it safe by playing old music, but who knows, you know, even remember that, you know, that iconic photograph after V day after World World War Two, that iconic photograph of a sailor, Sailor or soldier kissing a nurse, a civilian nurse? Yeah, yeah. And that's, that's, you know, that's arguably sexual harassment. We don't know if that was consensual, consensual, touching, it could have been an offensive, misogynistic touching, in that it says, so who knows there could be and what was that song, baby, it's cold outside. Now that's come under scrutiny as containing a lot of suggestions about using deception to try to keep the woman around and a need created so that she would be more susceptible to the man's exploits. I don't I guess I would be surprised to see the holding B be construed that far. But you can never tell these days. Okay, so so so keep an eye out for the sharp versus s&s activewear case. The next case I flagged to talk about was Lowry versus Rhapsody International. This is also out of the ninth circuit. This was a class action case. The issue here is when plaintiffs prevail or get a settlement in the class action case, they're going to have to anticipate a high level of scrutiny by by the court to determine whether the attorneys fee award is is reasonable in light of the recovery by the class members. So the beginning paragraph in Lowry versus Rhapsody is a doozy. It's it starts this case will likely make the average person shake her head in disbelief. The plaintiff's lawyers filed a class action lawsuit on behalf of copyright holders of musical compositions and ended up recovering a little over $50,000. But the class members, the lawyers then asked the court to award them $6 million in legal fees. And the court authorized after a substantial haircut 1.7 million in legal fees, which is still more than 30 times the amount that the class received. The attorneys ended up recovering a little over 50,000. It was, as we said, the Ninth Circuit reversed the the fee award of 1.7 million. This follows a trend in recent years, scrutinizing class action fee awards more closely. So the case was remanded to the district court to reconsider the award based on proportionality and the actual benefits standard articulated in the opinion. Yeah, you

Jeff Lewis  9:36  
know, when people make jokes like what do you call 1000 lawyers at the bottom of an ocean a good start, and people laugh. This is why this is why lawyers have a bad reputation. You know,

Tim Kowal  9:45  
I get calls. And when, from potential clients, one of the first things all US Attorneys asked is how much is in dispute. And if it's if it's for a small amount, like $50,000 You know, we're in a high deductible business litigation. You know, I always worry that I'm going to I'm going to say And more than that fairly early on in the case, and yeah, this I think this is just too paltry and amount to, especially in a in a class action where the the class has to all share that small amount. Yeah. All right. There's a couple recent legal decisions and comments concerning COVID related issues. The first one has to do with with masking with the masking issue, and whether workplaces can enforce or whether they're obliged to enforce masking rules. So take a look at Burke versus Lowe's home centers. The court in that case denied review. The California Supreme Court denied review in this case where the second district Third Division Court of Appeal issued an unpublished opinion upholding the dismissal by demur of a lawsuit by a pro per attorney. The attorney had alleged that a stores employees ignored his pleas for help when at the beginning of the COVID pandemic another customer who was unmasked in violation of the public health order spat in his face after plaintiff who wore a mask, I asked the shopper how he got into the store without wearing the mask and tracked the masculine man's location through the store while trying to call the police on his phone. That was the allegation in the complaint. And the appellate court held that, quote, nothing in the Express language of the masking order requires business proprietors to enforce it against their patrons or customers. It did, however, reverse the Superior Court simple position of almost $95,000 in sanctions against the plaintiff. So I guess the trial court had felt very strongly that the plaintiff had no reasonable grounds to file that lawsuit. And while the lawsuit was ultimately unsuccessful, the appellate court found that it wasn't quite so frivolous as the superior court judge had found. Wow. Interesting. Another case on the COVID front, this is a little bit old news now about justice Gorsuch, his comments calling COVID emergency orders among, quote The greatest intrusions on civil liberties in the peacetime history of this country. Justice scoresheets had gone on to say executive officials across the country issued emergency decrees on a breathtaking scale, referencing orders sometimes backed by criminal enforcement requiring home quarantine shuttering schools, businesses and churches while officials allowed casinos and other favored businesses to carry on justice Gorsuch had said had suggested to lessons in that recent opinion, I think it was back. I think this was back in early June, if I recall correctly, Justice Gorsuch had indicated one lesson might be this, that fear and the desire for safety are powerful forces, we do not need to confront a bayonet, we need only a nudge before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. And he goes on and interesting statements worth reading. I did note that there is some debate on whether, you know, these are intrusions on civil liberties, or whether they're, they're justified. And I think I think they could probably be both, you know, it's an intrusion. And it may have been justified. Another way of looking at it is the government sometimes needs to flex its muscle in peacetime. And outside of crisis. Hopefully, the government has no need or desire to flex its muscle. And sometimes there is occasion and justification for the government to flex its muscle and there is a tension between civil liberties and government orders.

Jeff Lewis  13:25  
So yeah, you know, but it's super important that the government flex its massive muscle in a even handed manner. You know, I'm COVID, cautious and pro Max, pro mass pro vaccine, and I was generally supportive of what Governor Newsom did in California. But let me say this, when you shut down gun ranges, and say you can't shoot, but leave open other activities and say you can't do those activities or shut down churches, but you can do other activities. It seems to suggest that the policymakers are making a judgment regarding what people are doing, as opposed to being even handed. That's where the huge danger is where I tend to agree with Gorsuch that people in times of emergency tend to just panic and not look at things in an even handed way.

Tim Kowal  14:08  
Yeah, no, that's right. That's right, especially when there is public support for these muscular government interventions. I think the courts need to it's it's one of those interesting dichotomies. The the courts are supposed to be independent of public opinion. But I think sometimes the court does need to look and see, okay, the government is acting, acting in a muscular manner. And there's a lot of public support for government asking acting in that muscular manner. Now, we the court have to look who are those members of the public who are not in favor or who were under, you know, under the hammer of the these of these government orders, and how does the court what's the appropriate court response to step in and make sure that they're not that there's not a minority getting stamped on?

Jeff Lewis  14:49  
Right, right. Yeah, gun toting Bible thumping folks have just the same rights as people who don't like guns and don't go to church.

Tim Kowal  14:56  
Yeah, yeah. So agree or disagree with justice. Gorgeous, is state MIT, but I think that's an important public comment to come from the from the Supreme Court, you know, commenting on on certainly whether you agree or disagree that it was among the greatest intrusions on civil liberties as Justice Gorsuch says it was certainly a vigorous display of a government force. And that always needs to be scrutinized carefully. Okay, a couple more bits of news on the courts institutions themselves. The Brennan Center for Justice recently published an update to its examination of State Supreme Court diversity. And that Brennan Center report says that in 18, states, no justices identify as a person of color, including in 12 states where people of color make up at least 20% of the population. But looking to California specifically now five of the seven California Supreme Court justices are people of color. And while women also remain unrepresented on many or most state supreme courts, California's court is majority female, and is tied with Maryland for having the highest percentage of women justices of color. But then I wanted to juxtapose that report. Jeff, do you have any comments on that report? Nope. I wanted to juxtapose with with another case, this was where the California Supreme Court denied review in camper to camper on admission, or versus admission, a would this was a would be lawyers attempt to force the state bar to allow him to take the bar exam, James camper, the third was excluded from the bar exam because he didn't have his law degree. And his law school was was withholding his degree due to his failure to repay a loan issued by the school for tuition and fees. I just thought that was interesting. I don't know if you have an opinion on that, Jeff, that apparently, if that was the only reason he was being deprived of a law degree is because of financial reasons. He he had met all the qualification the academic criteria, but he just didn't he needed to pay his bill. And until then, he was denied his law degree. And without the the technical requirement of the law degree, he was not able to sit for the bar exam. And without sitting and passing, sending for him passing the bar exam, he could not get his law degree. So here, is this an access to justice issue, we're talking about, you know, in the context of more getting more diversity among the bench and the bar in the legal in our legal institutions. And here is a person who there was more reporting on this from the daily journals, Malcolm McLaughlin, who noted, did some digging and found that camper is the child of Nigerian immigrants who lacked family wealth. State Bar officials in California lawmakers have often spoken about the need to bring more people like him into the legal profession, which is far less diverse than the state as a whole.

Jeff Lewis  17:44  
Yeah, interesting. I wonder, does the fault lie with the tuition with the school who was held the degree as a business point, because it didn't get paid? Or is the fault with the California State Bar for not understanding and carving out an exception here? And I also wonder whether whether the withholding of the degree was temporary, or permanent? Yeah, it's an interesting situation.

Tim Kowal  18:07  
Yeah. Because we still, when we talk about diversity, I think I always wonder about the different elements of diversity. You know, there's, there's racial diversity, there's gender diversity, there's We also sometimes talk about viewpoint diversity, or socio economic diversity.

Jeff Lewis  18:23  
Well, yeah, look, with the Supreme Court's recent action on affirmative action, I can see financial means or economic status being used as a proxy, or is the next best way for schools to try to keep their student populations diverse?

Tim Kowal  18:41  
Yeah. Yeah. You know, in our, our California Supreme Court, you know, has two Yale Law, alums, a Harvard law alum, Stanford, Berkeley, and then there's a UC Davis, and University of San Francisco. So it's still mostly skewed. It's not that not quitely, you know, skewed as as far and in the Yale and Harvard direction as the US Supreme Court. But but those those lofty, elite law schools are still over represented on our on our Supreme Courts. And then rounding out this, this talk about, about diversity. The, you know, our legal profession, and judiciary are diverse in some ways, but not in others when it comes to law schools. Judge judicial picks still aren't diverse. Again, like we were talking about when it comes to law schools. President Biden's 30 nominees to the ninth circuit and California district courts 25 have attended one of SiC just just six different elite law schools. data in a recent study suggests that 10 law schools were responsible for approximately 33% of the federal clerk hires in the nation, the situation that concerns some legal experts.

Jeff Lewis  19:57  
Yeah, it was interesting stat. I wonder if they did a study in terms of the good ol boy effect about whether or not there's a matchup in terms of a Venn diagram of where a judge, federal judge went to law school and hiring from that same law school such you have a constant recycling of judges looking to the same law school they graduated from to hire clerks. I wonder if that were the federal judge went to law school plays any role in this?

Tim Kowal  20:22  
Yeah, I think that would be interesting. We alluded to this briefly, when we, a year or two ago when we interviewed Jeff Caulkins, former research attorney at the at the Court of Appeal. We talked about John has anuses law review article, the myth of the rule of law where he said that look, our law books are so dense, they've got you know, cases that hold a and cases that hold not a so whatever conclusion you want, just you know, you dig deep enough and long enough, you'll find legal authorities to support it. What really contributes to the stability of our legal culture is that everyone goes to basically the same law schools, all our judges go to the same elite law schools are taught by the same people, we have kind of a legal culture that is self enforcing. And so that may be the result or the cause of the stability in our legal system more than what we call the rule of law. Yeah, I mentioned mentioned Berkeley is one of our elite law schools. There's here's a little tidbit the Berkeley library naming has been cancelled by Ireland's premier university Trinity College, a New York Times piece on the change noted that the library's namesake quote, owned slaves in colonial Rhode Island and wrote pamphlets supportive of slavery. And you know, this note that whenever there are offense archaeologists out there trying to find cause to tear down in anything. I think it's, it may be only a matter of time before there is a call to rename UC Berkeley, which is the jewel in our University of California system. On a similar note, the let's see, I didn't get the right text in here, but there was a recent court of appeal decision where it Presiding Justice Gilbert says that compliance with California Environmental Quality Act was not required to to get rid of the statute of father Sara, I think that was in a city that was in I think it was in Santa Monica, possibly, or anyway, somewhere in in Los Angeles for Ventura County. And so the Father, the Father, UniPro, Sara statute is going to come down and even though there was a challenge based on historical monuments act and environmental statutes there, the Court of Appeals held that the city's decision to remove that statue could stand would would go forward. Okay, next topic. Jeff. You're talking about a judicial ethics opinion, California Supreme Court's committee on judicial ethics now invites public comment on a new draft formal opinion addressing this issue is whether a judicial officer may attend a celebration hosted by a law firm in California, it's CJ EO draft formal opinion number 2023 Dash oh two for the committee generally advises judicial officers not to attend law firm celebrations, because doing so could violate several Canons in the code of judicial ethics, including the prohibitions against suggesting judicial bias or special influence over a judicial officer, the prohibition against lending prestige to advance someone's pecuniary or personal interest and the prohibition against accepting gifts, absent certain exceptions. What do you think about this, Jeff? Interesting.

Jeff Lewis  23:40  
So I opened a new office last year, we had a grand opening by the local Chamber of Commerce and invited a couple of retired inactive judges, and a few came and I never really gave it much thought that there could be a public perception and and none of these judges had an open cases in front of me, but I never gave it much thought that there could be a perception of bias or favoritism if a judge attended a celebration at a law firm.

Tim Kowal  24:04  
Yeah, well, you and I both feel a lot of phone calls from people who are aggrieved by, by decisions by judges, and most, most of them will, will have imagined some scenario where the judge is, is on the take somehow. So those those imaginations do tend to run wild. And I think that's what's at the bottom. These types of opinions. Let's remove any basis for anyone's imaginations to run wild and to concoct these narratives about how the judge is buddies with the attorney and that's why the judge decided the way it did.

Jeff Lewis  24:38  
Yeah, I suppose even if a judge didn't have an open case in front of you, but did two years down the line and someone did a deep dive on Instagram and saw a picture of that Judge holding up a champagne glass in a firm's lobby, I can see that.

Tim Kowal  24:50  
But on the other hand, imaginations are always going to run wild. I don't know that there's anything we can do. Short of making all Our judges live on a desert island somewhere and not talking to anybody ever except amongst themselves. And even then there's going to you can't get away from the hallway bias. Maybe we have to put every judge in an isolation chamber for the duration of their of the career.

Jeff Lewis  25:15  
Wow, look, you don't have to put them in an isolation chamber to have rules like, don't accept an empty seat on a flight to Alaska, or don't accept contributions to buy a house to have it turned into a museum. Yeah.

Tim Kowal  25:29  
Well, there was a, I listened to an interesting podcast by Akela Maher, where he was talking about those issues out of the the Supreme Court and the different different types of, you know, judges are people too, and they have friendships too. And you give and receive gifts. You accommodate people. And when you when you have friends who are who are on the wealthy side of the spectrum, when you take a trip with them, or when you exchanged gifts with them, they are going to be on the more lavish side.

Jeff Lewis  25:57  
Yeah, well, let me let me say this, I once served as a planning commissioner for a local city and received a gift of an iPad, I'd wanted a drawing from a vendor that did business with the city. And the city attorney advised me that it was best that I surrender that iPad to the city and not accept it, lest there be some sort of ethics complaint filed against me. And so I did. And so I view that compared to, you know, people taking flights and going on fishing trips, and that kind of thing. And I think when you accept the robe, or except an official position, you do give up some things you do give up the right to take gifts and lavish vacations. So I don't know, I kind of lean against judges on this one.

Tim Kowal  26:43  
Well, here's here's one other. Well, also note that you're just sore because you're out an iPad, Jeff. Yeah. Here's one other bias that you and I have is that we're city folks. You know, we're in big metropolitan areas, we see a judge and you know, maybe we'll be back in front of that Judge again, but there's so many judges, we're always in front of different judges, we're always opposite, different opposing counsel, if we were, you know, small, you know, country attorneys, we come up against the same attorneys time and time again and in appear in front of the same judge time and time again, and you've run across the judges in coffee shops and restaurants and at the county fair, and I think maybe that affects our our tolerance for connections that whenever we bump up against another judge more than once, suddenly that suggests that we are we have a relationship, where you know, if you were in a in a small community, where everyone already knows each other, and I think everyone has a tolerance for it. Yeah. Okay, well, everyone knows each other. So there's got to be more than just, you know, having been at the same within in the same room together to create a justification for accusing someone of bias.

Jeff Lewis  27:51  
There's a mile of difference between bumping into somebody at the diner and taking a trip to Alaska to go fishing.

Tim Kowal  27:59  
Well, here we're talking about the attending someone's office. And you start off by saying, it didn't occur to you that just having a judge, you know, celebrate your office warming, you know, didn't even enter your mind as a potential for a cause for bias.

Jeff Lewis  28:12  
Let me say this as a businessman of law firm owner, inviting judges, I probably would do it over again, if I had to do over again. But from a judge's perspective, if I were wearing the robe, I might think twice about accepting such invitation.

Tim Kowal  28:24  
Well, yeah, yeah. Fair enough. Okay. Here's a kind of kind of on the same trajectory here, Clyde men versus court of appeal. The Court of Appeals in the docket here. You don't see a decision like this every day where the respondent is the Second District Court of Appeal itself. The complaint alleged that division P which a lot of a lot of attorneys see that you know, Second District division people will think is division P is it is a probate is what it's called. What it stands for is the pre docket division. So division P the complaint alleges that division p of the Court of Appeal for the second district is a group within the second district, which manages and controls appeals filed from Los Angeles County before they're assigned to one of the eight divisions in the district. Division P consists of a single judge, the administrative Presiding Judge justice, ex officio or a designee and around three or so clerks of the second district. The opinion here issued by the fourth district Division One concludes that as a matter of law that the administrative Presiding Justice of the second district division P acting alone did have authority to dismiss Clyde mins first appeal in a prior action as untimely. And also the court held that the second district and the administrative presiding justice are entitled to judicial immunity. And finally that Kleinman the claimants complaint failed to state a claim against the Judicial Council. So this is just a kind of a curiosity because you don't see a lot of lawsuits against the Court of Appeals. So,

Jeff Lewis  30:00  
now it is unusual, but I started reading the opinion I stopped when I saw that the plaintiff and appellant was improper.

Tim Kowal  30:07  
That's not so unusual that you would see these these curiosities originate from an improper litigant. But at least now we know what division P means. Yep. All right. Here's a couple of moving on to just a few remaining tidbits from the lighter side. This is from a daily journal profile of presiding justice Rubin, who has a few who had a few comments about oral arguments and courtroom demeanor in the Court of Appeal. Here are a couple of quotes from Presiding Justice Rubin quote, it's a very important thing to have lawyers feeling comfortable, but not too comfortable in the courtroom. The best arguments I've had are the ones in which we're having a serious conversation. Power is on one side, but I think it's hard for lawyers to have conversations in that sense, unless they're basically uncomfortable. And then his other quote, without belaboring the point, he said, You guys is not the correct way of referring to us. I tend to agree. Yeah, I noticed that down when I first saw it, this was, this is a little bit old news, this profile came down in April 2023. But it kept, you know, banging around in my head every now and then when I thought about, you're preparing for an argument preparing for an appearance. And I always feel a little bit uncomfortable. And I thought back to Justice Reubens comment there that you're supposed to be uncomfortable because there is a power differential, you know, you're you're speaking to power when you're in any court. And you need to have a level of respect. But on the other hand, we always talked about the importance of oral argument how it's important to be somewhat informal and to get our point across in a way that that transcends the somewhat the intrinsic stuffiness of written advocacy. So we have to be a little bit of formal, somewhat comfortable but still basically uncomfortable. Yeah, we do oral argument. All right. So that's a justice Reubens take on oral argument here is justice beds worth. In last month's I think this is May, the May. Orange County Lawyer magazine is regular column on citing unpublished cases. My favorite topic, Jeff, this is justice beds worth on citing unpublished federal authority, which is sizable, but he says whether it will do you a lot of good is another matter. And here's the the takeaway quote from Justice beds where it's fine to cite the great philosophers like justice Gilbert and I do, but you have to be a lot more careful with your case citations. Older case citations are always greeted with suspicion. Another thing you want to be careful with is unpublished federal decisions. This is a pit you may not have realized was even available for you to fall into. It's a fluke. Unpublished federal authority is sizable, whether it will do you a lot of good as another matter. So yeah, you can cite an unpublished federal decision. And if it's more eloquent than you are, it might, it might do you some good. Otherwise, consider Hera cleitus, or Patty loveless.

Jeff Lewis  32:59  
I feel like I know less about beds preference regarding NS unpublished federal decisions after reading that and before.

Tim Kowal  33:09  
Fail, he just says use use caution. If it's a really, really good one, then go for it. But if it's just citing law that you could, you could probably find an unpublished decision making do without it.

Jeff Lewis  33:20  
Okay. All right. Hey, I had three tidbits I wanted to cover here. You know, you and I, Tim, we practice primarily in state court. And in state court, you and I, in the Court of Appeal have the luxury of virtually unlimited extension requests. Anybody with a pulse can get 60 days without batting an eye. And even after that you can get extension after extension. There's no real sense of urgency in filing State Court of Appeal briefs in California compare and contrast to something happening in the Ninth Circuit. I saw this from Corey Webster on his LinkedIn account, the next are conditioner advisory that they're going to be tightening up how they treat extensions, basically, you get your streamlined emergency 30 day extension. And the presumption is going to be That's enough written motions to further extend time are not going to be routinely granted anymore. So in the Ninth Circuit, get ready to write your briefs on time.

Tim Kowal  34:15  
Yeah, yeah, I think that's that was already an important practical rule is that you should count on the 30 day extension as being your one and only two because here's here's a situation I've come across a couple of times, I've gotten the 30 day extension request intending at the time that it was going to be my only but then later on, you know about get to like a week or two out from the deadline. And you realize I still need more time I'm going to submit an application for extension. You're not going to get the ruling on that motion before the deadline for your brief. And that puts you in a in a tight spot. Do you wait around for it? Now the the I think the practice at the court is that even if the courts going to deny your motion, it's not going to jam you up and say A Oh, and you didn't file your briefs. So your appeal is dismissed, they will still typically give you my understanding. I haven't had to put this to the test. But my what I have heard is that the court will still give you a very short grace period if they deny your request.

Jeff Lewis  35:15  
Yeah, yeah. Just reminds me, you know, the different pace between trial work and Court of Appeal work in the effect of deadlines. How many times have you had a trial lawyer call you? They didn't get you involved in working on the appeal. They've got a deadline of tomorrow to file their brief. They've already gotten extensions. And you're the one who tells them about the magical 15 Day default. automatic extension in state court. I feel like a hero every time I share that stuff.

Tim Kowal  35:43  
Oh, yeah. Yeah, you get to be the magician.

Jeff Lewis  35:46  
What? It's not due tomorrow.

Tim Kowal  35:49  
Yeah, yeah. It's fun to be Santa Claus.

Jeff Lewis  35:52  
All right. The second of the third, three stories I wanted to share has to do with the affirmative action decision that was issued by the Supreme Court earlier this month, that decision sent Twitter or appellate Twitter into a frenzy over the use of a new introductory signal that hadn't been used in the Supreme Court since 1815.

Tim Kowal  36:14  
And just just a backup for non nerds, the signal is the is that word before the citation. So it's like C, or E. G.

Jeff Lewis  36:23  
Right? Yeah. Generally, you know, these signals in general general sense say that the case that's to follow the signal either supports or doesn't support the sentence that came right before the signal. It's a way of kind of flavoring or spinning the citation for the reader so the reader knows the purpose for the citation. And I saw this tweet based on I saw this issue came up based on a tweet by Jack Metzler just presiding. Supreme Court Justice Chief Justice, excuse me, Justice Roberts, use the word symbol S E M, B, L E, which I guess his short answer, or shorthand for it seems to be or beware this baby dicta or I'm putting the toe in the water for this holding might be support for my preceding sentence.

Tim Kowal  37:09  
So symbol means symbol symbol means this case kind of sort of supports the proposition. Yeah,

Jeff Lewis  37:15  
it's like I think you indicate to me earlier in a conversation, it's a squishy See also. Yeah, yeah. I found that interesting. You know, the the case itself, and the use of that term is not interesting. But if you want to go down a rabbit hole, search Twitter for the word symbol, and you'll see some interesting reading. Oh, yeah.

Tim Kowal  37:34  
Yeah, I wouldn't have imagined that there are people with opinions on this.

Jeff Lewis  37:39  
Exactly. I think that's probably why why why would Roberts have for the first time since 1850, decided to use a signal, what was he signaling by using that signal?

Tim Kowal  37:50  
Well, and here's a public service announcement on on the speaking of signals, the seed signal, I commonly see this misused as as intended that the people who use C intend intended to mean the following case is directly supports the proposition when in reality, in the blue book, Reality C means sort of supports, the strongest signal is no signal at all, you just follow the proposition by the by the case, it's either it means either, you know, the case contains the quote that you just quoted, or it directly supports that proposition. But if you put C it means, you know, this, this proposition is kind of supported by this case. And if you put symbol it's, you have to read between the lines pretty hard to find the support for this proposition.

Jeff Lewis  38:37  
Yeah. Yeah. All right. The last story I want to share is has to do with comedian Sarah Silverman. She filed a lawsuit against open AI regarding chat GBT. Now, you know, you can use chat GPT to do summaries of things. You can upload documents or videos, and they'll do summaries and Gousha. Actually, some will have it summarized books. And apparently, if you were to type in to chat, GBT, give me a summary of Sarah Silverman's book. Bedwetting, it'll give you a summary. And she filed a lawsuit based on copyright laws suggesting that open aI had either used her book to train the AI or was otherwise violating her copyright by enabling this computer software to spit out a summary of her book. That's a very creative, interesting lawsuit, another unintended consequence of this amazing technology.

Tim Kowal  39:30  
That is interesting. I wonder why the the bad act that she's complaining of is whoever gave Chet GPT the book in the first place? I mean, isn't it just the same as anyone else doing a book report on the internet?

Jeff Lewis  39:43  
So I think when you do a book report you don't you know, do all the spoilers of everything that happened in Sunrise, every chapter, write up book review or book report kind of gives the highlights and you transform the work in the sense that you offer your own opinions. It was a good book, it was a bad book, but all What this does is it just saves you time it saves you the dollars of having to pay for it. Yeah. Well,

Tim Kowal  40:06  
I don't know that something about it doesn't make sense to me. It's kind of like if if you were to if you just attended Sarah Silverman stand up routine and then you report back to me. And you tell me the jokes in Jeff Lewis style. Have I really gotten a sense of what Sarah Silverman standup routine is like, isn't it all about her delivery and timing?

Jeff Lewis  40:25  
Wow, that's a tricky Yeah, that's a trickier one. If you know style, as opposed to substance, I don't know. But let How about this? What if you and I had a subscription only podcast that people could only listen to our podcasts with the pain of subscription with Chad GBT could give you a summary of every episode of the podcast. Couldn't we sue for someone bypassing the subscription model? Well,

Tim Kowal  40:46  
I don't know. How does it work with Cliff Notes? This cliff notes have to has to get a release from the original author before I can publish a cliff notes of the work. I suspect they

Jeff Lewis  40:58  
do expect a well established business would obtain a release although in this day and age, you're dating yourself, Tim, because I know in this day and age of Google and YouTube, I don't even know if Cliff Notes is still in business.

Tim Kowal  41:10  
I also see sparks notes that nothing anyway, but yeah, I don't know. Well, yeah, that's an interesting, it's going to test the limits of fair use, I think, right? Isn't that still the doctrine? Yeah,

Jeff Lewis  41:21  
yeah. And, you know, whether or not the chat GBT spit out or summary is a transformative in its use.

Tim Kowal  41:30  
Yeah. Well, that'll be an interesting one to watch. Yeah. Okay. That's all that's all I had, Tim. All right. Well, that's gonna wrap us up for today. So once again, we want to thank our sponsor casetext for sponsoring the podcast. Each week when we include links to cases we discuss we use casetext daily updated database of case law, statutes, regulations, codes, and more listeners of the podcast will enjoy a special discount on casetext basic research when they subscribe at That's A LP. Yeah, and if

Jeff Lewis  42:02  
you have suggestions for future episodes, you're interested in being a guest or you can tell us whether or not Cliff Notes still exist, please email us at info at Cal And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  42:16  
Yeah, and if you have great legal tech that you couldn't live without, please send us a note we want to compile a list of legal tech we can cover on a future episode. Thanks. And we'll see you next time.

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You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases in 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