The California Appellate Law Podcast

Cert on Homeless Encampments and En Banc on SLAPPs

January 24, 2024 Tim Kowal & Jeff Lewis Season 1 Episode 117
Cert on Homeless Encampments and En Banc on SLAPPs
The California Appellate Law Podcast
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The California Appellate Law Podcast
Cert on Homeless Encampments and En Banc on SLAPPs
Jan 24, 2024 Season 1 Episode 117
Tim Kowal & Jeff Lewis

The Supreme Court has granted cert on whether prosecuting a homeless sidewalk-camper is cruel and unusual punishment. And the 9th Circuit has granted en banc review whether anti-SLAPP denials are appealable.

Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published opinion came down hard against the school that includes in the separate statement all narrative and background facts.

Tim and Jeff discuss.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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

The Supreme Court has granted cert on whether prosecuting a homeless sidewalk-camper is cruel and unusual punishment. And the 9th Circuit has granted en banc review whether anti-SLAPP denials are appealable.

Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published opinion came down hard against the school that includes in the separate statement all narrative and background facts.

Tim and Jeff discuss.

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

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

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

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

Other items discussed in the episode:

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

Jeff Lewis  0:17 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. All 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, if you find this podcast helpful, please recommend it to a colleague. Yeah, if

Jeff Lewis  0:35  
you find it unhelpful, recommend it to your opposing counsel. Before we jump into this week's discussion, 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 amla 200 firms and in house legal departments. In March 2023 keystrokes launch 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. Our listeners enjoy special discount on case Tech's basic research at That's and you know, we're always raving about the AI features of CO counsel. But let me just say this, the basic research of casetext's compared to Westlaw, the login process of 16 things to enter in the waiting for the security and all that case, Texas lightning fast for getting cases when you need them. So I'm a big fan of casetext, which I guess is part of Westlaw. Now. You

Tim Kowal  1:36 
are you're definitely right about that. In fact, I was just thinking the same thing the other day, Jeff, because I was using, I was trying out the Lexus AI feature out of the chat GPT feature that works a lot like CO counsel, and it's comparable. But I will say along the lines of what you just said it doesn't have anything that compares with parallel search the case text, it's more or less a basic search feature, you just put in the proposition of law that you want to find some support for and it just comes up. It's like magic. If I put in the same search term into another, you know, one of the big guys, it just comes up with a with a whole bunch of search results. And I see I can look for my key terms. And oh, that one looks like it's got a bunch of my key terms. But it says something completely different than the legal proposition that I put into the search line. And it's that's that's the big difference is that you get you get results with CO counsel through case text that aren't are what you're looking for. It somehow knows through AI what you're looking for. We're still still waiting on that from the other guys. Parallel search seems like the only game in town for that particular feature. All right, so let's do some some recent cases and news, Jeff. This one just came on my radar courtesy Michael Shipley at the 111. Hill Street blog. This is about summary judgment motions, who needs to worry about summary judgment motions, trial attorneys, also appellate attorneys, all kinds of attorneys need to know the proper procedure for summary judgments. And in particular, the separate statements, those are the magic documents that you have to file alongside your Memorandum of points and authorities and all of your declarations. And in fact, that's that's probably the document that the judges start with as a as a map to whether there are disputed issues. And the Beltran versus Hard Rock Hotel licensing case out of the Court of Appeal looks like the fourth third Court of Appeal is right on point there is There's long been a kind of two schools of thought Jeff about how do you format your separate statement, I got all these background facts that go along the support my narrative of the case, and I need to support them. And the rules say that I have to put all my supporting facts in the separate statements. So I'm just going to load up my separate statement with 100 paragraphs that support all of my narrative statements that go along with with the case. And then there's the other school that says no, no, only the facts that support the basic the and the the the ultimate facts in the case, not 100 paragraphs. You know,

Jeff Lewis  4:00 
I think I sometimes violate this rule in the sense that I was always taught to write a separate statement as though the judge doesn't read your MSJ brief, your appointing authorities just a separate statement, and it tells a coherent story. So I may be guilty. Yeah, I

Tim Kowal  4:14 
think we're all guilty from from time to time because the rules are not quite clear. But the Beltran versus Hard Rock Hotel case gives a good roadmap and comes down firmly in the in the camp of the second school of thought that says own that your separate statement should only focus on the ultimate issues in the case. So here Here are some some key quotes from the Beltran versus Hard Rock Hotel case. Each separate in this This involved a case for the defendants filed three separate motions, three separate statements of facts. And the court notes that each separate statement includes over 600 paragraphs of purportedly material facts and runs over 100 pages. And the court says we can only conclude that a document that was intended to be helpful to the court. They're talking about the set But statement that's required by the rules of court. The statement was intended to be helpful to the court and provide due process to the parties. But in fact, it is, in many cases no longer serving either purpose. And the court says we write on this issue to remind both litigants and trial courts about the appropriate scope of the separate statement. The court goes on to say that the separate statement should include only material facts, and not just any facts that are not pertinent to the disposition of the motion. What about this question about what we need to have some evidence in there that support the narrative, the case narrative? The court says, in this case, for example, hard rock hotels very first, quote, unquote, material fact, in its separate statement is this quote, the Hard Rock brand is known worldwide for its connection to music, fashion and entertainment and quote, the court says of this statement, under no interpretation of material does this qualified, it's merely background information that has no relevance to any cause of action or defense. The court goes on to say the paragraphs in a separate statement should be limited to facts that address the elements of a cause of action, or an affirmative defense defense. The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. Now, going on to the duty on the opposing side, the court has has some things to say about the opposing party's duty as well. Right. Hey,

Jeff Lewis  6:31 
Tim, how many times have you filed a motion for summary judgment, the separate statement of like 20 or 30 facts? And then you get an opposing separate statement? That includes I don't know 100. Additional purportedly material

Tim Kowal  6:42 
facts? Yeah. Yeah. And again, theoretically, that can be appropriate if the opposing party has affirmative defenses that they're raising. But that's that's not that's not that's that's the exception rather than the rule. Most of the time. It's just there are additional facts that support the opposing party's narrative of the case. So for the same reason that narrative facts are not appropriately included in a separate statement. For the moving party, their narrative facts are also not to be included in the opposing party's separate statement as additional undisputed material facts. The court also was displeased at the opposing parties indiscriminate disputes of the allegedly undisputed facts, for example, the plaintiff, one of the undisputed facts was that the plaintiff worked as a server in different parts of the hotel, and primarily in a place called the club and the plaintiff opposing party claim that this benign and unjust indisputable fact was nonetheless disputed, by saying that the plaintiff was already working at hard rock when defendant Shepard was hired and blah, blah, blah. And the court of that of this so called dispute of a material fact, said, this response did not in fact, dispute hard rock Coast Hotel statement, the response should have been undisputed. And if the hire date was a material fact, and we don't see why it was then the quote had been, the party can can add that fact in the elsewhere in the separate statement, I guess it was a court say about it, it should be listed under the opposing party's additional facts with supporting evidence. So here's here's a couple of money quotes from the from the end of this passage about the appropriate use of separate statements. Jeff, quote, trial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement. And an inappropriate separate statement includes an overly long document that includes multiple non material facts and violation of the rules of court. So you're the moving party, and you violate your duties under the separate statement to to make a helpful document that only includes the material facts necessary to decide the motion, then the Court of Appeal urges trial courts to go ahead and just deny the motion as non compliant. But here's the other quote that goes on to the other side, Jeff, and tell me what you think about this. Quote, courts should also not hesitate to disregard attempts to game the system by the opposing party, who claim that facts are disputed when the uncontroverted evidence clearly shows otherwise and quote, what do you think it is, Jeff? So the court is admonishing both sides of a summary judgment motion the movement who has the duty to provide a separate statement and the opposing party who has a duty to respond fairly and honestly to the proposed undisputed facts. And if they're truly undisputed, you really should just say disputed not to try to make a dispute out of everything. And but my question here, Jeff, is what is the trial court supposed to do if the opposing party just puts disputed, disputed, disputed as to every undisputed material fact? What's the trial court to do? Just say, Okay, I don't like that you disputed something that was really undisputed. So I'm going to what grant the motion as a penalty. What can The Trial Well,

Jeff Lewis  10:00 
as a practical matter, for the trial court to roll up its sleeves and dig in and figure out well, this really shouldn't have been disputed or it should be disputed. The trial court's already done the work. It's already, you know, wasted its time. So I mean, I guess it could kick the hearing over and give the opposing party another chance to draft a more compliant separate statement. I think that's about the only remedy for non compliant defendants. Excuse me opponents separate statement. Yeah. Well, I do wonder, you know, Ms. J's are subject to de novo review on appeal. I do wonder if a judge denied and MSJ solely on separate statement compliance rules that would be subjected to abuse of discretion rather than de novo? Yeah, hard

Tim Kowal  10:41  
to say that it would be an abuse of discretion. But that that that's the standard of review is whether it's an abuse of discretion, I guess it would come down to whether the how egregious were the violations of the separate statement procedure. In this case, you know, we would look to the context, such as in the this Beltran versus Hard Rock Hotel case where there was 600, paragraphs, six of undisputed, undisputed facts totaling over 100 pages. And so that's that's kind of the watermark for for something that that may that may warrant simply disregarding the separate statement or or ruling that it is non compliant and denying the summary judgment motion on that basis. Yeah. All right, fine. All right. Well, let's let's move on. This was brought to my attention by our ninth circuit correspondent Corey Webster. Jeff, we've talked about anti slap appeals in the Ninth Circuit a few times it's it's come up a few times, and each time we discuss it in the context of how is a how is the denial of a anti slap motion appealable in the Ninth Circuit, they're appealable under California state law because California Civil Procedure Code says that they're appealable. But there's no such appealability statute in the in the federal rules making anti slap orders appealable. So they have been found to be appealable under Ninth Circuit, collateral order doctrine as being final and collateral to the the merits of the appeal but anti slap anti slept definitely go to the to the merits of the of the case. So and that's what that's what Judge McCune said in judge judges, Desai, and McCune wrote, In the recent case of zoom info, Martinez vs. Zoom info technologies, the Ninth Circuit vacated a panel decision in that case, and they're going to hear the case on BOC judges, Desai, and McCune had had affirmed the denial of the anti slap motion but concurred separately, Judge McCune concurred to her own panel decision saying that well, we're bound by by circuit precedent saying that denials of anti slap motions are appealable as collateral orders, but we don't think that they are. And we think that this Court should revisit a judge breasts has said the same thing and multiple opinions over the years and the apparently there are enough boats to take this matter up on bonk. And so appealability of antislip denials may not be long for this world in the ninth circuit. Now, Jeff as the anti slap King, this is your bailiwick. So what's your comment on this?

Jeff Lewis  13:19  
I have thoughts. I'm going to say something you probably won't agree with. If you take a look at the bundle of procedures that make up California's anti slap law, the state of discovery, the immediate appealability, the fee, shifting all those procedural mechanisms, and you bundle those together with the subset of all civil claims that this particular subset of defendants who are sued for protected activities get this bundle of procedural devices. I say that's a matter of substantive law at the California Legislature, as determined that this subset of defendants as a matter of policy, should cut the line and avoid hundreds of 1000s of dollars in attorneys fees. I see that substantive and so that the way the court should rule in terms of the Ninth Circuit is it's a matter of state substantive law, they shall apply California's anti slap law including the right of appeal, because it is not procedural. That's my thought. Yeah, I

Tim Kowal  14:15 
think I think there's a lot to commend that that argument that it's a substantive right. One of the one of the comments in in one of the concurring opinions pick up my I can't remember which one, but there was just a dismissive argument that and and tell me, Jeff, if this goes to the substantive versus procedural distinction, because what you're referring to, of course, is is under the Erie doctrine, federal courts will apply and incorporate state substantive law, but not purely state procedural law, because they were federal courts. We have our own Code of Civil Procedure. We can Federal Rules of Civil Procedure, we apply that, but if it's substantive law, then as the anti slap statute and protections have been deemed to be, then then we can apply those despite that they are found in the Code of Civil procedure. But tell me about what you think the the argument that anti slabs are akin to immunity from suit. And and the the federal courts have found that such as qualified immunity. So denials of a motion for summary judgment based on qualified immunity are immediately appealable. Because that's qualified immunity as an immunity from suit. It's a substantive protection, that if you denied the right of appeal ability, from an immunity from suit defense that would basically defeat the intent to give immunity from that suit. So is how does that play into the procedural versus substantive question?

Jeff Lewis  15:38  
I don't know. I don't buy it. I don't think it's it's even close to immunity argument. You know, when you go through the anti slap analysis, all you're saying is for a tiny subset of all civil claims, those defendants aren't immune, but those defendants are entitled to do a quick weighing of the evidence. They're entitled to cut the line and with resort to substantive principles of defamation or contract law, either the case proceeds or doesn't. I find the immunity analogy. Not helpful.

Tim Kowal  16:08 
Okay. I'm not sure how they come down on the immunity, but it seemed like a closer call than you're willing to give it credit for. And then one other question or whatever other rebuttal. To your position, Jeff. If the if the rules are, are substantive, and this is a substantive rule, then why not just why not? Why don't the federal court Why isn't the Ninth Circuit just apply CCP for 25 point 16. Why does that have to grafted on to rule 12? B six and rule as a motion to dismiss or rule 56 as a motion for summary judgment, if these are substantive rules, and just apply the substantive statute?

Jeff Lewis  16:45 
Tim, are you sitting down? I'm gonna shock you here. I think the Ninth Circuit should apply the anti slap law in total shouldn't pick pieces here and there should apply all of the provisions together as a bundle of procedures that together make up a substantive right, including the right of immediate appeal.

Tim Kowal  17:03 
Yeah, well, that would certainly be cleaner, that would certainly be cleaner. And maybe they don't do it that way. Because it just feels too much like we are just California state courts.

Jeff Lewis  17:15 
Yeah, well, that. Yeah, let me argue against myself there. It would certainly set a precedent for the California Legislature to expand the appellate jurisdiction of the Ninth Circuit in other areas, not just anti slap to decide when appeals can be immediately taken. And if it's happens to be in federal court, the state rules of procedure would trump the Federal Rules of Civil Procedure? Yeah. Well, that's

Tim Kowal  17:41 
that raises another question is, is it hasn't been immediately appealable. We're talking about denials of anti slap motions, as the Ninth Circuit ruled that they are immediately appealable because they are substantive rights. And just because we deem that substantive rights are immediately appealable, or is it there, it's a substantive right. So therefore, we are going to apply the California appealability rule as to the substantive right.

Jeff Lewis  18:04 
I don't think it's I think the Ninth Circuit completely disagrees with me. And they just under the collateral order doctrine, rely on that doctrine to infuse the court with jurisdiction. Okay.

Tim Kowal  18:14 
Well, these are all questions, these theories of substantive rights versus procedural rights Erie doctrine. And in the the immunity from suit argument, I'm sure that these are all going to be thrashed out in in the on in the forthcoming on bonk, decision in in the Martinez versus zoom info technologies case. So look out for that. Okay. Here's a bit of quick news, bad news for for us appellate practitioners. And I think for a lot of other people besides Jeff, SB six, six to the the Senate bill that would have expanded electronic recording of court proceedings has failed. It was backed by the Judicial Council, but it was opposed by labor groups representing court reporters. And so like many proposals that have come before it, SB 662 has failed. So another one bites the dust. So we're back to the same rules. Same advice is before get a court reporter. And if you don't have a court reporter, try a settled statement. They're better than nothing. Yeah, call

Jeff Lewis  19:24 
Fran Campbell if you need help. Yeah, she's, yeah, she's

Tim Kowal  19:27 
our resident settled statement expert. I got I got bucked up quite a bit having a I was I think I was in dire straits on an appeal and, or, or there was a lack of a court reporter. I called up Fran and she said, Hey, buck up. There's, you know, you can do you can do a settled statement. They're not that hard. In fact, I I did recently do a settled statement, Jeff, it was it was one of those issues in a case we talked about where there was a hearing on it. It was an anti slap case, and there was not a court reporter there. But it's de novo review. So should be should, should be fine. shouldn't need a court reporter couldn't shouldn't need an oral record. But sometimes, sometimes you do need an oral record. You never know when the Court of Appeal might say, we don't know what happened at that record, it might have been something that would warrant affirmance. So I decided, you know, why not just try a separate statement, you just check the box on your designation of record, you file out a couple of Judicial Council forms outlining what issues were raised and what evidence what was raised at the record on those issues. And I just said, there was nothing raised on the issues that are relevant to this appeal, other than what's in the minute or the court signed it. So I've got a document signed by the court. It's separate statements saying that there's nothing on the record that's relevant to this appeal. Yeah. Remind me not to

Jeff Lewis  20:44 
oppose you. Anybody else?

Tim Kowal  20:46 
All right. All right.

Jeff Lewis  20:47 
Here's let's talk about the Grants Pass case. Full disclosure here in 2019, my firm filed an amicus brief in the Martin versus Boise case. And we again filed an amicus brief in this Grants Pass case, but I want to talk about it briefly, the Supreme Court granted review on an issue that impacts just about everybody in California in terms of the issue with the unhoused, you know, the unhoused, there's it's a huge public policy emergency, and cities have had their hands kind of tied by the Martin decision. And now this Grants Pass decision in terms of what can cities do to help the unhoused find their way into shelter beds. And the specific issue the Supreme Court agreed to hear was, does the enforcement of camping laws that apply to everybody, not just the unhoused? Does the enforcement of those laws constitute cruel and unusual punishment in violation of the Eighth Amendment? So that's that's the question the Supreme Court granted cert on. But there's lots of subsidiary policy issues that are going to be tackled by the court here because, for example, one of the the teachings of Martin is if a city doesn't have enough beds for the homeless, you can't impose criminal penalties. And on surface, that seems to make sense, right? You shouldn't criminalize somebody for something they have no power to, to fix. But when you get into details, like what do you do if on any given night, the city of LA has enough beds for the number of unhoused? Who would want beds for that particular night? Even if they don't have enough beds for the entire population on house? Is that enough compliance with the shelter urine housed issue that the city has its hands on tied and can then enforce criminal laws? That's one issue. And the second issue is, what do you do about the unhoused? Are some of them who turn away services? They don't want a bed? Should you count those folks in determining has the city provided enough beds for all their unhoused to warrant application of criminal laws? And then the third and I think, bigger question is for a little town like grants Palace pass, I think it's 40,000 people that their population, should there be a one size fit all solution that applies to a city like Los Angeles with millions of people in their population, as Grants Pass? Or do we need a more nuanced approach? I'm of the opinion, personally, that the solution to these issues is to vests the prosecutor the local prosecutors with their discretion or recognize their discretion that they're gonna only file criminal cases in appropriate cases and withhold charges in other cases. That's the Jeff Lewis solution. It'll be interesting to see what the Supreme Court comes up with.

Tim Kowal  23:25  
Yeah, I was a little confused by by what was happening in the way of enforcement here. I understand that the laws here, let's let's talk about this. In the recent recent case, that happened, I think, just just after the Supreme Court granted cert in the in the Grants Pass case, and in the Martin case, and it's it's a it's the case in Coalition on Homelessness versus City of San Francisco. So you talked about, you know, the big city of Los Angeles, here's another big metropolitan city and area, San Francisco, that was also trying to do we're trying to respond to this problem and do it in a way consistent with the Grants Pass. And in Martin decisions by by not doing full citywide all all time all place violations on camping, it was only during certain hours. You can't camp in the middle of the sidewalk during the daytime hours, say and but apparently what was happening is that the record wasn't clear whether the enforcement was happening consistent with those Time and Place specifications. And so the that was one of the bases for the ninth circuit panel remanding this back to the trial court for further further determination. On, on on whether whether these time and time, place and manner restrictions are made, made the made the code compliant with the circuit precedent. I also and going back to your point, Jeff about about, well, this is an eighth amendment issue. It's it still seems like an odd fit to me as as an eighth amendment question. A due process question is probably the one I would have gone. But I wasn't sure if if it's punishment just to tell someone to move along. Is that an eighth amendments cruel and unusual punishment to say you can't camp here? Well,

Jeff Lewis  25:10 
if you don't have a place to move along to? Yeah, it might be I don't know if it's cruel and unusual, but it might be inappropriate for the government to do that.

Tim Kowal  25:19 
i Yeah, although that. But the objection is not that the punishment is that the manner of punishment is cruel and unusual. It is. The argument is that any punishment whatsoever would be cruel and unusual, which seems a different, different thing from what traditionally is understood as cruel and unusual punishment. And Judge bootay has a good dissenting opinion about history and tradition of the cruel and unusual punishment clause amendment. But But the interesting thing here for us appellate and trial attorneys, would isn't judge Buma taste to sat down and in the majority opinion about the issue of waiver and forfeiture, because the city on appeal, tried to argue, change their arguments a little bit about whether their argument about the time, place and manner and the panel had held that, that these arguments were weighed because they the city had changed their arguments when they went up on appeal. And Judge Booma. Tay thought this was not right judgment, a thought that the city did not waive its arguments, because there's an important distinction. That waiver applies to claims, not arguments. So judge Matej writes, the majority is wrong about waiver, as the Supreme Court has made clear, it is claims that are deed that can be deemed waived or forfeited, not arguments, and the city can make any argument in support of its claims on appeal. It's not limited to the precise arguments made below. That's I thought was an interesting point. Jeff, we talked about waiver a lot. And maybe the rules a little bit different in the California State court than it is in the Ninth Circuit, because it's about Judge booties, citations to authority here, we're pretty clear. And then judge bootay goes on to talk about, like I said, the history and tradition, arguments or support for eighth amendment, and then again, talks more about the conclusion on waiver and judge Boone Matej as dissenting opinions like to do sometimes, they'll use their arguments to try to make the majority's holding perhaps as narrow as possible. So judge boobity writes, that because the Ninth Circuit's majority opinion here was based solely on its conclusion on waiver, quote, that means that the district courts legal rulings are not the law of our court, and they should be disregarded by other judges in the circuit and quote, and he agrees that the majority with the majority that the district here, District Court needs to reconsider its ruling entirely based on San Francisco's arguments. And given that opportunity, Judge bootay suggest the district court should also take the hint and reconsider its radical rulings on remand those rulings being to to enjoin enforcement of San Francisco's time place and manner laws on camping on the sidewalk. Yeah,

Jeff Lewis  28:00 
I think that trial court will have the opportunity to reconsider its ruling in light of what's going to come down and grant Grants Pass. I think, you know, my prediction is all those nuanced discussions or questions that I raised earlier in our conversation are going to be bypassed and the Supreme Court on either a 5463 basis, it's just gonna hold that cruel and unusual punishment doesn't apply here. That's my prediction.

Tim Kowal  28:22  
Yeah. Yeah. I agree with your with your prediction on that, Jeff.

Jeff Lewis  28:26 
Hey, let's talk about another Supreme Court case. We don't really do politics here on this podcast. But I'm super fascinated by these Trump election cases in terms of is he qualified to be on the ballot, the Supreme Court granted a rocket docket cert petition for the Colorado case, Colorado said Trump couldn't appear on the ballot. And the Supreme Court's given the parties basically less than a month to do all the briefing that's usually done across a year. And he's gonna have oral argument on February 8, and I imagine issue a ruling in mid to late February, so that some of the primaries can benefit from the wisdom of the Supreme Court. And I just bring up this case, because, you know, trust in the Supreme Court's at an all time low because of the dobs decisions and other things. And no matter what the outcome is of this Trump case, I think the Supreme Court is going to lose trust, it's a kind of a lose lose proposition by them accepting this case, because on the one hand, if they let Mr. Trump stay on the ballot, people are gonna say, Oh, you're just payback for those justices who are appointed by Trump. You know, this is this is not the application of law. This is a quid pro quo. And if he stripped off the ballot, opponents or critics will say off the Supreme Court is interfering in the will of the people and preventing, disenfranchising voters from voting for the candidate of their choice. Either way, Justice Roberts, who, you know, really wants to improve the public image of the court. He's going to lose that battle in terms of this decision.

Tim Kowal  29:58 
Well, I think you'll want to A Of course he wants to find a unanimous opinion if he can, and even even liberal law professors like, like Larry Lessig, as written that he hopes the Supreme Court will unanimously reject the Colorado challenge to keep Trump off the ballot. He says, quote, this is a principle about limiting the scope of judicial power, not about limiting the reach of the Constitution. I'm reading that from, from CNN covering covering Larry Lessig. Article on that subject. Okay.

Jeff Lewis  30:33  
I predict a bitterly divided court 5476 by 463 on this issue, and yeah, and lots of concurring and dissenting opinions.

Tim Kowal  30:43  
But democracy, Jeff, this is supposed to be democracy. Yeah.

Jeff Lewis  30:47  
You know, on the flip coin of that people would say, you know, if if Jeff's teenage son decided he wanted to be on the ballot, the Secretary of State said, Nope, you can't be on the ballot. That's not impacting democracy that's enforcing the Constitution. That

Tim Kowal  30:59 

there yeah, there are there are very difficult challenges in in who, you know, who decides it every every state is going to decide its own interpretation of these. The Congress in the impeachment trial has already rejected the the insurrection claim, but every individual state might have. What about the risk of inconsistent rulings?

Jeff Lewis  31:26 
Well, that's, you know, maybe that's what motivated Justice Roberts to the others to take this case, because that's why we have a Supreme Court right or wrong, whether they come up with the right or wrong decision, they provide finality so that the 50 States know which rules to apply and who to put on the ballot, even if they get it wrong. So maybe that was the thought process because right now, you know, you've got main taking them off. You've got Colorado taking them off. You've got other states leaving them on, I think California is leaving them on. It's just a mishmash of holdings out there.

Tim Kowal  31:53 
Yeah. Well, I think, Chief Justice Roberts, tenure has been about like you said, rebuilding trust in the court after after Bush v. Gore. And so maybe, maybe he'll just say, okay, the Supreme Court has already put one Republican in office, now we're gonna put one Democrat in office. So we're even now we're out of the election business.

Jeff Lewis  32:14 
Think about this, by the way, this controversy is not just about who appears on the ballot, but imagine a scenario 12 months down the line, where lunch in January, the Congress is called on to certify election and imagine either because of a third party candidate, or because some votes of some states are disputed and not counted, not certified. One of the none of the President's none of the candidates get the magic number needed to qualify as president is thrown to the house to decide who's the president. And in that moment, that house will need guidance from the Supreme Court, thumbs up or thumbs down as to whether or not Trump is qualified to be appointed basically by the house. So it's not just a question of today and what this should the Secretary of State's print on the ballots in terms of names? This very well could be a year from now. A thorny constitutional question. Yeah,

Tim Kowal  33:11 
yeah. Yeah, very likely may come up one way or the other. All right. Well, let's end with ONE ONE. lighter side case. Justice Baker is not a fan of Costco from this is from the guilty vs. Costco Wholesale Corp case out of the second district Division five, where the Costco had charged a shopper with theft for putting $100 worth of razor blades, Gillette razors in in his shopping cart, but it was underneath a big bag of dog food. And so even though he tendered the whole shopping cart to the cashier, who checked the cart and missed the razors and then tendered the cart and the receipt to the to the checker at you know at the door, who also didn't didn't catch the razors. He was detained by by a loss prevention specialist at Costco and held until the police arrived the DEA apparently decided to to press charges against the shopper and then the judge dismissed the case there's gotta

Jeff Lewis  34:13 
be a story there by the way there's got to be a story by Matt da charging this case but go ahead

Tim Kowal  34:19 
what one one hit to the to the story is that this was a deputy sheriff Yeah, the shopper was a deputy sheriff the Costco brought a the the shopper brought a bottle brought a complaint against the against Costco. Costco brought an anti slap based on making a police report and the court granted the anti slap saying that the police report is protected conduct justice Baker thinks that that even if it's a protected conduct, which no one disputed that the shopper has easily made the requisite minimal merit showing a malicious prosecution for favorable termination lack of probable cause and malice to proceed with the lawsuit and he thinks that awarding Costco anti slap fees on top Of all the legal harassment that the shopper had endured is, is already is just too much to bear. And it runs opposite the purpose of the statute, which is to prevent litigants from using courts to chill speech. And here's justice Baker's concluding quote, This is not a case where we should be worried about chilling Costcos ability to report shoppers to the police. To the contrary, Costco needs some chilling. Well,

Jeff Lewis  35:25 
you know, the legislature, in my opinion wisely didn't make intent to chill or the absence of the intent to chill a factor in the application of anti slap laws, nor did they differentiate between the moving party and the opposing party in terms of who can bring an anti slap law. So big media companies, huge corporations can bring anti slabs and target the little guy just as much as the little guy can bring an anti slap against a big corporation. I think that was a wise choice by the legislature. Otherwise we get into the business of who are the good guys who are the bad guys and who's entitled to protection? Yep. No, I

Tim Kowal  35:59 
agree. It's, it's equal opportunity. It's not just a statute for the little guy. It's equally applied. And it can be. It protects the rich, it protects the poor and protects everyone in between. So just to make sure your arguments are the best and hire, hire an anti slap specialist like Jeff Lewis. There's your there's your plug for the day. All right, Jeff. That's that's all I got for today.

Jeff Lewis  36:23 
All right. Well, that wraps up this episode we again we want to thank casetext for sponsoring the podcast 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 the podcast enjoy a special discount at casetext Speight on Eastex. Basic research at That's

Tim Kowal  36:44 
And if you have suggestions for future episodes, are you on Jeff, Jeff or I to sound off on our baseless opinions about predictions for ninth circuit on bonk review and Supreme Court the Supreme Court is going to do with the 2024 election, please email us at info at Cal In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  37:04 
See you next time.

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