The California Appellate Law Podcast

Appeal Your Arbitrator?

September 13, 2023 Tim Kowal & Jeff Lewis Season 1 Episode 100
The California Appellate Law Podcast
Appeal Your Arbitrator?
Show Notes Transcript

We discuss some interesting recent cases out of the California Court of Appeal:

  • Arbitration clauses may include an agreement to make the award reviewable on appeal. We discuss a recent case that shows how.
  • Can a judge just stay a money judgment?
  • What to do if the appellate court issues a tentative opinion.
  • When an amended order suspends the right to appeal from the original order.

Then we discuss the “Eisenberg rule,” and a survey that explains why lawyers still use legalese.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

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

Other items discussed in the episode:

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone.

Jeff Lewis  0:18 
I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialist and as uncertified podcast co hosts we try to bring our audience of trial attorneys and appellate attorneys some legal news and perspectives they can use in their practice. As always, we are greatly appreciative if you refer this podcast to a colleague if you find it useful.

Jeff Lewis  0:36 
And before we jump into this week's discussion, we always want to thank case Tex for sponsoring our podcast casetext, a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. Case Texas relied on by 10,000 firms nationwide from solo practitioners to am law 200 firms and in house legal departments. In March 2023. Casetext launched co counsel, the world's first AI legal assistant co 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's And before we started rolling this morning, we were talking about a new feature on case text co counsel that helps you write letters and emails. I haven't fully explored that. But I look forward to playing with that and reporting back on that new feature. Yeah, I

Tim Kowal  1:26 
like using all those tools. And we were also talking before we started rolling Jeff about some various other AI developments and legal tech that's available. And I know just a few months ago, Jeff, we had Ernie Svenson. On to talk about some of the most important, most effective legal tech that attorneys should at least be aware of and may be implementing to to gain some efficiencies in their practice. And even though we did that just a few months ago, I guess in AI and tech time, that's that's years and years. So maybe we should we should gather up some of the recent offerings and survey them for our audience. And another episode coming up soon. Absolutely. Yeah. All right. But for today, we wanted to cover some recent cases and legal news to Jeff, I had found a few cases that I thought would be of interest to our listeners. So let's jump right in and talk about appellate review and arbitration. And those two things that often are not found in the same sentence, because when you submit to arbitration, you get the arbitrators award, and that's about it, get your rights to review on appeal are extremely curtailed. But you know, that's that's just the trade off, you know, you have to put up with the risk of potentially getting a terrible ruling. That's against all good sense and the facts. And but that's just the trade off. Right, Jeff? That's That's what I always think. But

Jeff Lewis  2:42 

yeah, you rarely see arbitration and appeals mentioned in the same sentence, because your rights to appellate review of an arbitration award are typically limited to, you know, fraud or corruption or a failure to consider evidence in such a material way that was substantially prejudice to the losing party, those kinds of grounds but just somebody didn't follow the law or a witness wasn't believable, those types of issues are not reviewable from an arbitration award.

Tim Kowal  3:09 
Right? Yeah, even when they're very blatant. But I was reminded in a recent case, that there is authority in California based on a 2008, California Supreme Court case in cable connection versus direct TV, that parties agreeing to arbitration can also agree that the arbitration award be subject to appellate review. So I thought, well, that's great. And I don't know why I don't have that forefront in my mind other than the fact that we just don't see those in the wild very often. In my case, I don't think I've ever seen one in the wild. That just where someone calls up and says, By the way, I got an arbitration award, and it was really bad, nasty, terrible, and not even very good. And it has an appellate review clause. So I'd like to hire you to to appeal this no good, nasty arbitration award. Right. But there was one thing about the about the cable connection versus direct TV case, that was not clear. The California Supreme Court was not clear about the mechanism for how you get that appellate review after an arbitration award. Do you do you have to first seek review in the trial court or you could just go straight to the Court of Appeal. And that was the issue that came up in a recent case of housing authority of city of Calexico versus multi Housing Tax Credit partners 29 in Roman numerals LP, it's a mouthful and a case name. It was just last month, August 2023, out of the fourth district, and it raised that issue that the Supreme Court had not been clear about does the trial court have to first review the arbitration award on the merits and the trial court here? thought no, this is if there's appellate review, then that's the Court of Appeals business. I'm not going to mess with that. So the trial court agree that the parties had explicitly you know, even though the court It agreed that the parties had explicitly and unambiguously invoke the right to appellate review. And that's the standard. It cannot be. If you're going to invoke your right to appellate review in an arbitration clause, it has to be unmistakable, explicit and unambiguous. The trial court found that yeah, it's explicit, it's unambiguous, but I'm still not going to review it on the merits. That's for the Court of Appeal. Trial Court ruled that it was powerless to review the award on the merits, and it confined its review to the statutory grounds set forth in the normal arbitration review section 12 86.2 of the Code of Civil Procedure and ruled that the merits review would be for the appellate courts original jurisdiction. Court of Appeals said no, no, no, that's not the way review works. We are a Court of Review, we review the work that you do, we don't do it on on an original basis. So the Court pointed out that the California Constitution vests original jurisdiction in the superior courts, and that cannot be changed by stipulation even by an arbitration clause that reserves appellate review. If the courts were to allow the parties to determine the manner and procedure of appellate review, parties could stipulate, you can imagine that some parties might stipulate and courts would be bound to oblige review that would precede quote by flipping a coin or studying the entrails of dead fowl invoking a quote from Judge Kozinski, former judge Kozinski from the cable connection case that was quoting from lupine technology core. And so here's the the takeaway, Jeff, is that we should remember not to overlook the option of putting into your arbitration provisions, the right to appellate review, to make them subject to judicial review. And this is an option. Importantly, that's not an option available in federal courts under the Federal Arbitration Act, but it is available under the California Arbitration Act. So keep that in mind. And some parties will just decide no, we want the arbitrator to decide we don't want further litigation and appeals. But I think there there are a good number of litigants out there who might say, You know what, I would like to have the option to take it up on appeal. So that's something to consider.

Jeff Lewis  7:11 
Yeah, interesting. Yeah. Hey, I read this decision and footnote 13 pointed out well, we really want trial judges digging in rolling up their sleeves on the merits of reviewing arbitration awards, after all Courts of Appeal have a lot more resources and a smaller caseload than your typical LA Superior Orange County Superior Court Judge. Is it really fair to impose on a trial judge who's got a lot of other matters to review the merits of a dispute that an arbitrator has already resolved in the Court of Appeal in footnote 13 said, yeah, it's your job. That's what trial courts do give lots of examples. Were in administrative proceedings and other proceedings, trial courts roll up their sleeves and review the merits of other people's determinations. And it's just an interesting footnote. I wouldn't be surprised if somebody sought review of this decision of some Amicus parties echoed the arguments in footnote 13, that perhaps Trial Courts don't have the resources to engage in this type of review. Yeah,

Tim Kowal  8:10 
that is an interesting point. I had overlooked that that footnote. But you're right, that this, this opinion in this housing authority of Calexico will not be well received by a lot of trial judges who who liked the option of arbitration, they liked the fact that the parties have agreed to arbitration, the matter can be compelled off to arbitration, all I have to do is rubber stamp the the award, when it comes back to me and I wash my hands of the whole thing, and now they have to do a merits review. And that that could entail, you know, a full, you know, substantial evidence review reviewing all the transcripts from the arbitration award. If there's a challenge that findings are not supported by substantial evidence. That could be a serious undertaking. But then again, Jeff, how often are arbitrations? How often? Do they have court reporters there? Do you think there will be a lot of substantial evidence challenges after after an arbitration? You know,

Jeff Lewis  9:05 
I have to say in my experience for high dollar arbitrations where there's going to be substantial closing briefing where let's say the arbitration is more than a week, I do find that there is a court reporter present so that the transcripts can be cited to and attached to the closing briefs. My experience, court reporters or reporter transcripts are available for these kinds of cases.

Tim Kowal  9:25  
Yeah. Yeah. And because they are, obviously they're arbitrations. They're not jury trials, are they going to have as many substantial evidence issues? You think? I think they would, those they're going to those are going to be tough to raise after an arbitration. I could see more challenges being raised to look the the arbitrator, you know, ignored the law or misapplied the law. And one of the issues that you don't typically see in arbitrations are well, the arbitrator didn't allow my evidence because that is one of the statutory grounds for overturning an arbitration decision. So you're not going to see a whole lot of those evidentiary calls but legal issues cuz I think I think that would be a welcome opportunity to get review of questions of law. Yeah. to that to

Jeff Lewis  10:06 
that point, though, under existing law, you can't review an arbitration award. If an arbitrator lets too much evidence in, lets in evidence, at least I don't know it was privileged or hearsay or something. If you had one of these agreements that allowed for judicial review by the Superior Court of an arbitration award, I suppose, letting too much evidence in and that error was prejudicial, would be available as a way to attack an arbitration award. Yeah, I did see in your blog post, you wrote up on this case, you put four bullet points, summarizing all the steps necessary to write up an enforceable arbitration clause allowing for judicial reviews, hopefully, you'll include a link to that blog post in our show notes, so other people can take advantage of you calling out these points from that decision.

Tim Kowal  10:49 
Yeah, I'll do that. The opinion did helpfully include the language that the parties used in their arbitration provision that that did successfully, explicitly and unambiguously invoke the right to appellate review of the arbitration arbitrator award. So in the show notes, you know, look for a link to that. And it has, as that language that you can mostly copy and paste into your arbitration agreement if you're interested in making your next arbitration clause subject to appellate review. And I will note on the post, when I put this up on LinkedIn, when I wrote this up, Jeff and put it on LinkedIn, there was a, there was a feisty conversation or debate between some folks who, who looked at this and said, if it's subject to appellate review, it's it's not really arbitration. It's defeating the purpose of arbitration. You know, this opinion is really unfortunate, and and other people who think the court didn't go far enough, you know, arbitration should just be abolished altogether. It's an affront to do due process and the rule of law. Well, yeah,

Jeff Lewis  11:45 
well, the first group had it right in the sense that, you know, one of the reasons we do arbitrations is finality. And this defeats that issue of finality. But in these days, where the courts are still dealing with COVID, nineteen's backlog of cases, I just had a case set for trial in February 2026, my client is miffed arbitration, let you cut the line and get your cases dismissed. Early, I mean, resolved earlier than you can in that traditional judicial system with all the backlogs and delays yet still preserve the rights to appellate review. As an as a certified appellate specialist, I'm okay with parties using arbitration agreements that retain appellate review.

Tim Kowal  12:27 
Yeah, yeah. As am I, I have the same bias was huge. Yes. All right. Let's move on to the next case. This one, we can we can do it quickly. I'm not sure if how much other attorneys are interested in judgment enforcement and stays of enforcement. But the issue that comes up with me and in calls to my office all the time, and the the issue here that the question posed here is can a judge stay on money judgment?

Jeff Lewis  12:56  
Not an anti slap fee award? Right? We're not talking about and I and I slap fiords? Correct.

Tim Kowal  13:00 
We'll have to leave that that debate for another day. Joe? You're always looking to ruffle feathers on that one.

Jeff Lewis  13:06 
I think a judge can generally stay a trial court can stay enforcement of a money judgment.

Tim Kowal  13:14 
Am I wrong? Even when there's there's the benign 17.1 section of Code of Civil Procedure that provides if you want to stay have a money judgment, you got to post a bond? What do we make of that that legislative requirement? If the judge can just say, No, it just stayed. And then there's also consider the temporary state statute of 918, that the judge, the legislature had specifically provided that the judge may stay a money judgment, but only temporarily, only until the time to file the notice of appeal would have expired plus 10 days after that to give a little bit of a cushion, but not more. Yeah,

Jeff Lewis  13:50 
I guess in the cases that I've actively litigated in terms of appeals, where there is a stay whether or not the trial court had the authority to issue it or not. parties had the ability to pay, and the winning party knew that the money judgment would incur 10% interest on appeal, and was willing to ride it out and was comfortable, there'd be an ability to recover at the end. So I guess I wonder it may be smaller dollar cases or cases where collecting is in question. I guess the parties would really litigate this, this issue of a trial court just on a whim stay. execution of a money judgment.

Tim Kowal  14:24 
Yeah. Well, that's a good point what you mentioned small dollar amounts. So with that little little bit of banter about the the issue generally of stays of money, judgments. Let's talk about the recent case of marriage of bush out of the fourth district Third Division Court of Appeal. This is a non published opinion. But again, I thought the issue was surprising. So So I wanted to talk about it. Now, as I mentioned, stays of judgment enforcement in California are governed by statute and generally there's only two ways to stay. You either post a bond in the amount of 150% of the face amount of the judgment or order or you ask the trial court for a temporary stay, but It's only temporary it doesn't last throughout the entire appeal only until the date your notice of appeal is due plus 10. But the family judge in marriage of Bush issued an indefinite stay the money judgment here. So the money judgment was a sanctions order against the wife in favor of the husband. The sanctions amount was a little over $3,600. But there were still some property issues that were left to be decided. And the court figured that until we decide those property issues, we don't really know how the the ultimate, the net award is going to come out. So the court figured that it's still possible that the ultimate judgment could wind up with the husband knowing the wife even though there's currently a sanctions order requiring the wife to pay $3,600 to the husband. So the judge went ahead and just stayed husbands enforcement of that $3,600 sanctions order. So my question, Jeff, is, can the judge do this just taken immediately enforceable order for the payment of money and stay it?

Jeff Lewis  15:58 
Well, this isn't family law court? Correct?

Tim Kowal  16:00 
It is. Go ahead. Okay. Go ahead. But the law theoretically still applies there, Jeff. But But the court and the court of appeal answered, Yes. The trial court was authorized to stay enforcement of that judgment. The court didn't really explain why. But the court stated that, quote, effectively, the court stayed the sanction until it determined how the party's assets should be characterized and divided. And I thought that was a little unsatisfying, because I want to know, the answer to those questions. Jeff, aren't the aren't the legislative provisions about staying judgements? plenary? Doesn't that constitute the the full menu of options for staying a judgment, but the court went ahead and just stated here, but back to your point about the the amount of the judgment? Jeff, I wonder if things would have been different if this sanctions award was over? $5,000? Because remember, the the sanctions award was only $3,635 Not enough to be independently appealable. But if it if it was, if it had been independently appealable, then I wonder if the other provisions would have kicked in. And the court would have had to say, look, this is now an appealable order, if you want to stay it you have to appeal from it and post a bond like the statute say,

Jeff Lewis  17:17 
interesting. Yeah, I suppose that that amount could change the outcome there other than family law. There's so many small issues to constantly be resolved, and then revisited and reconsideration and yada, yada. I'm not surprised by this result in family law court, you know, reserving issues until until the end, and the never is an end to family law litigation.

Tim Kowal  17:38 
Yeah, yeah. And I guess what the way the trial judge did it here was to stay the sanction order so that it wasn't enforceable. It wasn't it wasn't payable yet. It was just kind of, you know, a almost like a, like an advisory order. This is what I'm fixing to do when we get all the other issues done. Yeah. So anyway, I thought that was interesting. But here's another one. This is on the subject of tentative opinions, tentative appellate opinions. We talk about this pretty frequently. And, you know, Jeff, we always talk about tentative opinions are an unalloyed good you know, they can they can never, no one is ever going to no attorney is ever going to turn down a tentative opinion. They're all upside right. There's no possible downside. Well, here's the careful because here's this case represents one possible downside of tentative opinions. The case is navellier versus Putnam. It's out of the First District Court of Appeal Division five from August of 2023. It's an unpublished opinion, but there was there was a rehearing. I guess it was denied rehearing. But here's what the case is about the plaintiffs case was dismissed for failing to timely serve the defendants. And on appeal, the plaintiffs argued that service was impossible or impractical. Court of Appeal rejected the arguments and affirmed and rejected the contention that that they couldn't serve by noting that they could have they could have used the mail serve procedures. But the appellant said, Wait, wait, wait, wait, that issue was never raised on appeal. And so they so they raised they are they filed a petition for rehearing? Because, Jeff, as we know, one of the grounds for a petition for rehearing is that the opinion was based on an argument that was never briefed by the parties. And you have to give the parties an opportunity to brief the issue. So you have to grant rehearing because we didn't raise that issue. We didn't have an opportunity. This is an unresolved issue. And the Court of Appeal kind of conceded and said, Well, that wasn't expressly raised, but the issue was, quote, fairly encompassed in the other related issues that were raised on appeal. And citing that standard of the fairly encompassed standard is in people versus Alice, and petitions for rehearing are, are almost always denied. And it was here, even though it was a little bit more of a close call. But so far, it's not very surprising. But here's the zinger. Here's what what made my eyebrows go up even if this was truly a new issue, the court noted, the plaintiffs never requested leave to file a supplemental brief pursuant to rule of court 8.2 100 a four and why should the plaintiffs had known to file to request leave for a supplemental brief? Well, the plaintiffs learned that the court was poised to decide the appeal on that issue about personal about the mail service when the Court issued its tentative opinion, several weeks before oral argument. So in other words, if the Court of Appeal issues a tentative opinion, deciding your case on an unbreached issue, that better trigger something in your brain that I need to request leave to file a supplemental brief so I can address that issue, because you're not unless you do that you're not going to have a chance to argue it in a petition for rehearing that it's going to that's going to fall on deaf ears.

Jeff Lewis  20:53  
Yeah, you know, that's interesting. I would think, you know, this decision you're just quoting from navellier is unpublished. It just strikes me as counterintuitive that a petition for rehearing? The purpose of that is to raise irregular irregularities not necessarily related to the merits. This seems like the kind of issue that you could raise for the first time in a petition for rehearing and suggesting that you had a request leave to file a supplemental brief before a petition for rehearing. But sometime after the tentative ruling came out, but before oral argument, counterintuitive to me, I'm against it.

Tim Kowal  21:26 
Yeah, I think I'm with you, Jeff. I thought this was a little, a little harsh. And I think the court probably could have left it and maybe should have left it well enough alone with the fairly encompassed analysis that the court had mentioned that Well, you did acknowledge you didn't make a mention of male service. It just wasn't fully articulated. But but but plaintiffs you were kind of clued in that this was related, it was fairly encompassed in the issues to be briefed. And so we're not going to be we're not going to be excited by your argument that you didn't have a chance to brief it. You just chose not to brief it. This was you know, it was basically a natural corollary to the other issues. You were briefing. You should have raised it. So I didn't I think it might do on. I think it causes some some heartburn about tentative opinions. And the court didn't need to do that. But but now that it's out there, I think we've got to take notice that next time I see one of those tentative opinions, I'm going to say is everything in this tentative opinion, something that was argued in your briefs, is there anything else you want to say now are fairly encompassed? Yeah, that's right. Okay. So that was navellier versus Putnam. That'll be in the show notes. Okay, Jeff, how many? How many do we have time for? Do you think I've got two more here? We want to get we want to get that some tidbits as well. But let's talk about the next

Jeff Lewis  22:37 
one that just entitlements slash original appeal. Yeah. Yeah.

Tim Kowal  22:42  
Okay. So this is this next one we'll talk about is Sweeney versus Regional Water Quality Control Board. It's another one out of the First District Court of Appeal from August of 2023. The The takeaway here is that an amended order suspends the right to appeal from the original order. And this one is a little bit complicated, Jeff, so we got to put on our thinking caps. Okay. So the setup is think about when a judge enters an order, okay. So you have you have the original order, but then the judge later modifies that order, okay. And if you're gonna, if you want to appeal if you're agreed by something, you should probably appeal from that modified order. Okay, so that's normally the right course here, but now add this wrinkle. Now, the court later voids the modified order. Okay, so So you have the original order, the modified order, a court later, later orders that the modified order is void. So now you have the you're back to the original order. Okay, so that's the order to appeal from but now the time to appeal from that original order is expired. So what do you do now? So that's the question that was confronted in the Sweeney case. And the Sweeney court concluded that actually the time to appeal from that earlier order, the original order was suspended upon the entry of the modified order suspended meeting. In other words, a modified order supersedes the prior order, including the right to appeal from that order. So here's what happened in Sweeney, the plaintiff had gotten hit with a $2.8 million abatement order relating to a wakeboarding club and then that he later turned into a duck hunting club, which had operated out of compliance with the Clean Water Act and the water code, and the board sought to enforce payment of that abatement order and asked for an order in joining Sweeney, the plaintiff to assign various assets various of his assets or his Club's assets to the board. The board's proposed judgment failed to include Sweeney's homestead exemption. So there was a facial defect in the proposed order and the board and the court everyone acknowledged that there was this error because Sweeney was entitled to a homestead exemption so the court granted the board's motion but also made clear on the record that the order was going to preserve the preserves Sweeney's homestead exemption, but then out of an oversight, apparently the court a week or two later or mistakenly went ahead and just signed the board's original proposed order, which had abrogated the homestead exemption. So by the time Sweeney appealed from both orders, he was beyond the deadline to appeal from the original order that the original order the correct order that preserved his homestead exemption. So again, like I said, Everyone agreed that that second order was an error. And so the the court later withdrew that second air that second erroneous order while the appeal was pending. So on appeal, the board played a gotcha. Go ahead, Jeff.

Jeff Lewis  25:34 
But I'm just gonna say to the trial court have the power to do that. Undo that second array Iranian erroneous order during the pendency of the appeal. I know that wasn't discussed in the case. But that's what came to my mind.

Tim Kowal  25:46  
Yeah, that that popped into my mind to Jeff, and and you're right. I don't think that was mentioned in the opinion. Yeah, I think that that suggests there was another way that that the Court of Appeal could have resolved this question by saying, No, trial court you didn't have you didn't have jurisdiction to vacate the second order. We reverse the second order and vacate it to issue a new order, and then that new order would would become the appeal of order. But instead of going that roundabout way, the court just ignored the fact that that the trial court, potentially lacked jurisdiction to vacate its erroneous Second Order in the court. The court went about the the analysis this way and said that the second order substantially modified the earlier order. And when the trial court substantially modifies the judgment, the modified judgment becomes the appealable judgment. We know that we've talked about that, that rule that usually an amended order, if it's just ministerial, like, like it includes costs, or it includes attorneys fees, that doesn't substantially modify the judgment. So the original judgment is still the the appealable. One, but the court concluded here that by by addressing this homestead exemption issue that did substantially modify the judgment so that that second judgment did become the appealable. One. So what about the fact that the modified order was later withdrawn? At that point, the court noted there could have been no operative appeal from the original order, because under the modified order rule that we just talked about, the earlier order was not even an appealable order anymore. Once the modified order was withdrawn, then and only then did the earlier order become appealable. Again, but Sweeney did not file a notice of appeal. But that didn't matter because relying on another case from 1988 marriage of Myka Lazio, the Court explained that a modified judgment even avoid one superseded the first judgment and remained in effect as the operative judgment, suspending the time to appeal from the first judgment. So the the appellant in the Mikkel EasiYo case had no right to appeal from an original judgment, while the amended judgment was in place. And when that judgment was reinstated, it became the new judgment for purposes of appeal. And the court concluded the time for filing a notice of appeal from that judgment began from the date the second judgment was declared void in the trial court. So, you know, I

Jeff Lewis  28:07 
noticed that the complicated but yeah, very common, the decision, you know, a few places and in your description, and a few places use the word suspended, as though you know, you've got a chess clock on 60 days, and you pause it, and then you and then you started again. But am I correct that the real practical effect of this is the party got an extra additional 60 days to appeal? Once that's once the order vacating the earlier order was entered? They got a full 60 days, as opposed to the remaining time on the 60 day clock?

Tim Kowal  28:40
Is there like a statute of limitations polling analysis, or is it just the brand new? Yeah, does it become a brand new period? I would guess it's the latter. But the word suspended, makes it sound more like a tolling type of analysis. So I don't know. I wouldn't I wouldn't. When the stakes are jurisdictional, I would I would file it as soon as humanly possible. Right, right. Yeah. Okay. There was also a dis entitlement issue here. Jeff Sweeney. You know, we've been talking about here that the board was trying to enforce this great big abatement order two point million dollars. And so the technical issues of appealability and timeliness were not the only problems that Sweeney was facing, he had also refused to pay the abatement order. He refused to show up for judgment debtor examinations, he refused to comply with subpoenas. And meanwhile, he gifted what money he had to pay for attorneys fees, and the even sold a boat to his father in law, misled the trial court to impose monetary sanctions and find him in contempt on more than one occasion and issue several bench warrants for his arrest. And the majority decided, well, this. We're none too pleased with this, but we're gonna go ahead it seems like maybe he is started to sort of comply recently. So we're just going to go ahead and reach the merit We won't dismiss on this entitlement grounds. Yeah,

Jeff Lewis  30:02 

that was the interesting part of the disentanglement analysis that yeah, maybe if we had decided this case six months ago or six months from now, we would have come to it differently. But given There's been recent activity to comply, at this point in time, we're not going to apply it.

Tim Kowal  30:16  
Yeah. What do you do as soon as this entitlement motion is filed? You just put it put up your hands and say, I'll be good. I'll be good. Right? Right. The majority was satisfied enough with that, but justice Rodriguez wrote in a concurring opinion, he said he joins everything else the majority said but he would have dismissed on this entitlement he says quote, nevertheless, seemingly unbowed and undeterred, Sweeney's refusal to comply with court orders, apparently continues. So either not by the I'll be good. I'll be good act from Sweeney is last minute turnabout in to confess compliance with the court orders.

Jeff Lewis  30:54 
You know, it wasn't clear to me from the opinion whether or not the disentanglement doctrine was raised by way of a motion to dismiss or by way of like an argument in the respondents brief. If it was the latter, I could get the Court of Appeal to say, you know, at the end of the case when they've already ruled on the merits, kind of punting on that issue. But if someone had filed a motion to dismiss early in the case before the briefing was completed. I think I'm with the with the dissent here.

Tim Kowal  31:18 

Yeah. Yeah, I thought so too. Here's just another quote or two from Justice Rodriguez. Again, he was not impressed with the majorities. What you know what he was not impressed with with Sweeney's plea that he's going to be good, you know, which had satisfied the majority. Justice Rodriguez said, even if he could, he's talking about Sweeney. Even if he could demonstrate some compliance, I would apply the doctrine of dis entitlement and dismiss, I do not believe seeing the light at the 11th hour or halting and occasional compliance at a time of parties choosing precludes appellate disentanglement. And then justice roguery Rodriguez concludes, this is the hopefully rare case where a party's persistent and willful disobedience and obstructive conduct warrants appellate dis entitlement. And so we always like to look at these this entitlement doctrine cases, Jeff, and sometimes it seems like the courts will will be a little bit more forgiving, sometimes less forgiving. I think this really does. Your mileage really does vary based on who's on the panel. Yeah.

Jeff Lewis  32:20 
And yeah, and when the issue is floated, right.

Tim Kowal  32:23 
One other issue, just just circling back to the head scratching issue about these earlier orders being suspended after an original order. You know, this the modified judgment rule that we talked about that suspends the appeal to appeal ability of an earlier judgment, it does have an exception. And and that's for Jan OVS, and new trial motions. Now, this was something that came into my mind when I was reading this, Jeff, because it's when there's a judgment on a jury verdict that the judge later abrogates, or I don't know what the word for it is vacated by a judgment, notwithstanding the verdict or a motion for new trial, and then the aggrieved party appeals from the J. And ov are the order granting new trial that that original judgment on the verdict doesn't go away. It is still hanging back there. It but don't think that you can just wait for the appeal to shake out before you appeal from it. If you were aggrieved. If you're the party who successfully got J and OB or successfully got a new trial granted, and the other side appeals from that order, you need to cross appeal from the original order that made you so unhappy in the first place, you have to cross appeal within the 15 days after the notice of appeal is filed, or else you forever waive it, you don't get to use this modified judgment rule when it comes to a jury verdict that's abrogated by a J and O. V or new trial grant. Yeah, yeah. Okay. The only the last case Jeff just said we won't talk about it. But it just another one of those that we put in the in the category of potential traps and using the Judicial Council form notice of appeal. This is a case where someone checked the wrong box. After a Motion for Judgment on the pleadings was granted, and the successful defendant moved to dismiss on appeal saying, uh huh. The Notice of Appeal says that you're appealing from the order granting the Motion for Judgment in the pleading. But that's not the appealable order. It's the judgment and the court said, Yeah, you're definitely right. But but it looks like here the judgment was actually entered on the same day. So luckily, luckily for the appellant, the doctrine of liberality applied, but if it had been entered on a different day, that could have resulted in a dismissal of the appeal for an errant box checking exercise on the Judicial Council form. Right, right. I was, you know, again, Jeff, I took your advice, or after you told me that sometimes you don't use the Judicial Council form and I stopped using it. I don't want to give more information than I need to give all you have to do when you file a notice of appeal is identify the order or identify the date of the order and the court that issued it. Yeah,

Jeff Lewis  34:52 
absolutely. You only use my office when we use the form for anti slap appeals. It's not there's not much that can be messed up there. But for all other appeals we we do the more traditional notice of appeal and pleading paper.

Tim Kowal  35:05 
Yep. All right, Jeff, let's, let's cover a few recent news and tidbits coming out of the courts. You want to you want to lead us off here. Sure. Early

Jeff Lewis  35:15  
on in our podcast first started recording these we talked about a huge backlog of cases up north, where cases were not being administered in the Court of Appeal in a timely fashion that resulted in some extraordinary filings by prominent appellate attorneys. And ultimately, that backlog resulted in some cases being transferred to other districts and certain justices retired. And the issue seems to have been fixed. But perhaps related to that, or perhaps not. The Judicial Council recently adopted a new rule 10 Boy point 10, one four of the California Rules of Court that became effective this month, December 1, to promote the efficient, effective and proper administration of the courts of appeal by increasing the accountability of administrative presiding justices and presiding justices. And the rule basically, opens a hotline via email for anyone who's got a complaint about the administration of the courts business. And so hopefully, a situation will never happen again with this big buildup of cases.

Tim Kowal  36:21
Yeah, and if there if there is public the information where you can direct your complaints if you do have a complaint about improper administration of the appellate dockets put that in the show notes. Okay. We covered this before Jeff, but since it's on topic about our discussion on tentative opinions, the San Diego County Bar Association and in the practice section there has proposed an amendment to rule of court 8.256 to expressly allow Courts of Appeal to issue tentative opinions before oral argument or focus letters. And it would adopt a language used by the First District local rule 15. So again, I think we still remain fans of tentative opinions, but just be careful if the tentative opinion addresses any on brief issues.

Jeff Lewis  37:08 
Have you sent in a letter to the Judicial Council supporting the San Diego bars approach?

Tim Kowal  37:14 
Oh, don't call me out. Jeff. Have you? No, no, we should do that. Yeah, let's Yeah, let's submit a joint letter.

Jeff Lewis  37:22 
Okay. On the other podcast letterhead or public

Tim Kowal  37:25 

service? Yeah. Okay. Here's here's a recent study caught my eye. Jeff, I think it was shared by our friend Ben Schatz if I'm not, oh, no, it was Mark Alexander at the California Attorney fees blog. This was a study summarized by The Economist that should suggest that lawyers actually prefer simplified language and not legalese. So the question is, why does legalese still exist? And the study analyzed a few different hypotheses the curse of knowledge hypothesis that we lawyers are just so, so smart. And this study concluded no researchers found that lawyers just like regular people struggled with legalese, because it's just harder to understand. What about the it's just the way business is done? Hypothesis? No, the study concluded lawyers agree that lay people are more likely to sign simple contracts that don't have legal ease. What about it's in group signaling, we want to show that we're part of the club. Now the study concluded lawyers would sooner employ lawyers who write with simple language rather than legalese. So that leaves one explanation left. It's the copy and paste hypothesis that lawyers just repeat what's been done before? Yes, yeah. creatures of habit, Jeff, we can't break out of it.

Jeff Lewis  38:41 
Yeah. How often? Have you seen a pleading that starts with two all hereby presents by through their counsel, yada, yada? That's from a cut, cut and paste from a form book from 40 years ago?

Tim Kowal  38:52  
Yeah, I do still find in some of my some of my forms, like, you know, if I ever have, you know, some old pleading templates or discovery, you know, there is still like there too. And, yeah, sometimes I don't notice it, but I was kill it when I find them.

Jeff Lewis  39:08 
All right. Let's add some last tidbit. I'll mention the court reporter issue. Then we will wrap up. I got an email or press release on September 5 from the LA County Superior Court announcing that that court reporter shortage is still here. And they're increasing these these big and financial incentives that we had covered a couple of months back on the podcast. So for example, they're going to offer a signing bonus for newly hired court reporters $50,000 signing bonus, which is up from the $20,000 signing bonus that we covered a couple months back and a finder's fee for court employees who refer official court reporters to the court that $25,000 finder's fee increased from $15,000. So the LA spirit court is really getting serious about trying to incentivize folks to get trained and hired as official court reporters.

Tim Kowal  39:59 
Well that you know, do So when you share that news with me, that reminded me, you know, I'm still trying to finish up an article about the court reporter shortage and I told you that I'm trying to find an angle to this that's more than just the doom and gloom that we already know that we are, you know, find ourselves in a downward spiral of court reporters here and we're getting fewer and fewer and more and more are dropping out of the pool and fewer and fewer signing up and what do we do about it and and I thought maybe maybe I crowdsource this to the to our podcast listenership anyone have a good idea for for whether there's a First Amendment free speech angle to this now that we have all of these all the courts wired up with, with remote technology, cameras and microphones, judges, let's let's presume that a judge finds there's no good reason not to allow someone to record other than the fact that they're prevented by the Government Code, which let's face it is was put there out of protectionist desires. And, you know, protectionism does satisfy a rational basis under the Constitution, but it might not satisfy strict scrutiny. And I wonder if there is a First Amendment challenge, because as we we talked about a couple of months back, Jeff, out of the Ninth Circuit, there was that case, that said the two party consent statutes for recording phone calls might not be constitutional. So if if parties can record their conversations with other people, you know, without their consent, and that's protected by the Constitution, why not recording otherwise open and public court proceedings?

Jeff Lewis  41:27 
Yeah, interesting. I don't know. I know there's a constitutional right to a public trial that belongs to more than just a criminal defendant, but to the public in general. And they have the right to access a courtroom. And I don't know as long as a court is opening its doors and letting folks come on in. I'm not sure there's a First Amendment argument to be made in terms of the right to record or to challenge a rule prohibiting recording of courtroom proceedings. I don't know I favor the federal approach of having recordings in lieu of court reporters, but I don't know if there's a First Amendment path to get there.

Tim Kowal  42:01 
Okay, well, if any of our listeners disagree with Jeff and have a good legal basis for doing so, I'd love to hear your approach, because I gotta get that article finished, Jeff.

Jeff Lewis  42:10 
Absolutely. Absolutely. All right. I think that wraps up this episode. We want to thank casetext for sponsoring our podcast and each week we include links to the cases we discussed from casetext daily updated database of case law, statutes, regulations, codes, and more listeners of our podcasts enjoy a special discount on casetext basic research at That's A LP, and if you

Tim Kowal  42:33 

have suggestions for topics or guests that we should bring on for future episodes, please email us at info at cow And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal and preparing for trial. See you next time.

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