The California Appellate Law Podcast

Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases

March 05, 2024 Tim Kowal & Jeff Lewis Season 1 Episode 123
Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases
The California Appellate Law Podcast
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The California Appellate Law Podcast
Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases
Mar 05, 2024 Season 1 Episode 123
Tim Kowal & Jeff Lewis

We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration:

  • $50k sanctions against appellant for blowing appellate procedure.
  • Motion for reconsideration was untimely, but righteous. Trial judge did not take the Court of Appeal’s hint, so writ issued. (But the trial judge was right to let the writ issue.)
  • Anti-SLAPPs don’t require a line-by-line list of allegations like regular strike motions. But there’s a split on this.
  • Do you need appellate specialization credits? Maybe not as many as you think if you use Lisa Perrochet’s tip.

We also discuss a case on the Racial Justice Act, a rare case reversed for lack of substantial evidence, and a Public Records Act case.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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

We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration:

  • $50k sanctions against appellant for blowing appellate procedure.
  • Motion for reconsideration was untimely, but righteous. Trial judge did not take the Court of Appeal’s hint, so writ issued. (But the trial judge was right to let the writ issue.)
  • Anti-SLAPPs don’t require a line-by-line list of allegations like regular strike motions. But there’s a split on this.
  • Do you need appellate specialization credits? Maybe not as many as you think if you use Lisa Perrochet’s tip.

We also discuss a case on the Racial Justice Act, a rare case reversed for lack of substantial evidence, and a Public Records Act case.

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,

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

Tim Kowal  0:19 
And I'm Tim Kowal. While 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 useful, please recommend it to a colleague. Yeah, if

Jeff Lewis  0:33 
you find it on useful send it to a childhood bully. Before we jump into this week's discussion, we want to thank casetext for sponsoring our podcast these days is a legal technology company that's developed AI back tools to help lawyers practice more efficiently since 2038, casetext has relied on by 10,000 firms nationwide from solo practitioners to amla 200 firms and in house legal departments. And in March 2023 casetext's 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 podcasts enjoy special discount on case Tech's basic research at That's A LP,

Tim Kowal  1:13 
Jeff, today we're going to be talking about some recent appellate cases. And in some news out of our court of appeal and Supreme Court cases we'll talk about involve motions for reconsideration, anti slap motions, and whether they're whether you have to do a line by line list of allegations, a case on the Racial Justice Act and a case about an appeal from a post judgment order and whether that reaches the merits of the underlying judgment. But first, we start off with a with a cautionary tale Mandir, Inc. Versus Tiwari. This case warns how important it is to know the appellate rules this case resulted in the appellants attorney being sanctioned $50,000. And disclaimer, yours truly was the respondents counsel in this case. But this case involved a failure to request a statement of decision misunderstanding what the what substantial evidence review means preparing an incomplete appellate record all of these mistakes. Jeff we talked about in in various cases, they wind up in getting issues waived and forfeited and your appeal on unsuccessful sometimes even dismissed but this case, Mandir versus Tiwari resulted in the appellants counsel getting sanction $50,000 for pursuing a frivolous appeal. So this case was after a bench trial and the court had issued a tentative decision, but the plaintiff did not request a statement of decision. That was mistake number one. On appeal. The plaintiff argued that the trial court failed to make required findings but absent a request for a statement of decision, the implied findings doctrine applied, and the appellate did not grapple with the implied findings. That was mistake number two. And you can tell Jeff, that some of these mistakes are a little bit esoteric. We talked about them on this podcast. But this podcast is kind of for the for the upper 90/98 percentile of attorneys who weighed in these nerdy waters, not for not for your typical litigator. Another mistake was that the plaintiff argued that, that at trial, it did offer substantial evidence to support its claims and the trial court. The trial court was mistaken by not accepting and not not being persuaded by all of the plaintiffs substantial evidence. But Jeff, as you and I know, that is not how substantial evidence works. substantial evidence means that there has to be no substantial evidence that supported the trial court's findings against you, not that you succeeded in in producing evidence or rising to substantial evidence. So that was the third mistake. And there were still more mistakes. The plaintiff identified trial exhibits to be included in the clerk's transcript. But the trial court clerk had returned custody of the trial exhibits over to plaintiff's attorney it became plaintiffs responsibility to send up those trial exhibits to the Court of Appeal after the briefing was complete the trial, the plaintiff's attorney never did that and so failed to secure an adequate record on appeal. That was the fourth mistake. And then finally, mistake number five, the plaintiff cited to fail to cite to evidence supporting the judgment. That's a violation of the rules when you're challenging a judgment for lack of substantial evidence put all these errors together, Jeff, and it resulted in a finding that the appeal was a frivolous appeal. The court concluded that all these mistakes made the degree of objective frivolousness very high. The plaintiff was made aware of these defects by the respondents brief which pointed out all of these errors and in the motion for sanctions and In the court while the court didn't dismiss the appeal for being frivolous, it did award sanctions in the in the total amount of respondents attorneys fees just under $50,000. One of the reasons the court awarded sanctions was, quote, to deter conduct of this nature in the future, noting that if counsel is not aware of those principles and rules, referring to the rules of appellate procedure, then attorneys should then these rules should be learned before an appeal is taken and quote, though, Jeff, the takeaway here is that while the number and severity of the appellate procedure missteps here are a bit uncommon, again, they're they're the kind of esoteric issues that we talked about on this podcast when we can find them. When there are one, two, or even several material defects like this on appeal. Those are common, but put them all together, and it can make your appeal frivolous and expose you to liability for appellate sanctions.

Jeff Lewis  5:53  
Yeah. Yeah. And, and the opinion was sent to the State Bar, that doesn't, that that hurts as well.

Tim Kowal  6:00 
That's, that's all that always stings having to when the State Bar is apprised that you have filed a frivolous appeal. Okay, next case, we're going to talk about Jeff is Contreras versus Superior Court. The less the title of this case or the takeaway from this case is that denying an untimely but meritorious motion for reconsideration was reversible error. And the reason I that this this case caught my eye, Jeff, is that whenever there is an appeal that challenges a motion for reconsideration. I always find that interesting, especially in a case like this, where the motion for reconsideration was actually untimely. And we've talked before about a case where that suggested that that filing an untimely motion for reconsideration may be deemed a frivolous challenge, but but it wasn't it wasn't here. So what happened in Contreras is that after the trial court compelled arbitration in this card defect dispute, the plaintiff moved for reconsideration, but the trial court's ruling was was correct, and the motion the motion was untimely. So it was no surprise when the trial court denied the motion. So that's why it was surprising when the Court of Appeal in Contreras versus Superior Court issued a writ The Court of Appeal reason that the law had changed a couple months after the trial court's ruling, so the court should have exercised its jurisdiction to make its ruling consistent. The while the trial court had compelled at the time the trial court compelled arbitration. It reason that even though the defendant the car manufacturer of Fiat Chrysler was not a signatory to the plaintiff sale contract with the dealership the arbitration clause and the sale contract still applied on equitable estoppel grounds. So this is a an arbitration case. The defendant was not a signatory to the to the arbitration agreement, but believed that it was that it was entitled to enforce the arbitration clause anyway, on the basis of an equitable estoppel case. And in Fela silda versus FCA in other Fiat Chrysler clay case. So Chrysler was aware of this case, because it had gotten a a similar favorable result in the fell silda case. And but so that was the that was the case that the trial court ruled on when it compelled arbitration. But then a few weeks later, there was another court of appeal decision that came down for motor warranty cases in 2023. And get disagreed with fell silda and supported a contrary result. So the so the plaintiff came in on a motion for reconsideration and said, Hey, look at Ford Motor warranty cases, Your Honor, because it compels a different result. Well, that doesn't compel a different result, because there are now there's now a split of authority on this issue, but argue that the court should take another look at it at least, and consider the Ford Motor motor warranty cases. And the court the trial court said no, that case wasn't around at the time, and you're beyond your 10 days to file your motion for reconsideration under 1008. So I'm going to deny it. But the court did kind of gratuitously mentioned that if I had had Foad ford motor warranty cases in my hand at the time I made the initial ruling, I probably would have come out a different way. So the the Court of Appeal issued an alternative writ, and tentatively directed the trial court to to vacate its ruling that even though the plaintiffs motion was untimely, a parte motion is not the only way the trial court may reconsider. It always has inherent authority to reconsider its interlocutory rulings at any time before the entry of a judgment. So that so the Court of Appeal ordered the trial court either to vacate and reconsider the original order, or show cause why not? The trial court did not vacate or reconsider. So the parties brief the issue, and the Court of Appeal issued a writ sending it back for for reconsideration. And I thought that the trial court judge here. Jeff was one of your favorites judge Rupert Birdsong, I thought it was a pretty savvy move by Judge birdsong not to take action on the alternative writ, as we know, an alternative writ is is not actually an order. It doesn't require the trial judge to take the action suggested or directed in the alternative rip, it is kind of an easy way out for the Court of Appeal to say, look, this is kind of the way we're going. So why don't you just do it on your own volition trial judge? And but but if the trial judge does it, then it's still not it's not it's not love the case it can still be challenged later, just because the Court of Appeal gave you an idea that this is the way it's thinking. It's not that that alternative writ, it does not have preclusive effect. It's not law of the case. But by forcing the Court of Appeal to issue a writ of peremptory writ on it. Now that is love the case and it cannot be challenged. So judge Birdsong, it said okay, well, I see which way the winds are blowing, I'm gonna go ahead and and and reconsider it and deny the deny arbitration. Well, later on that issue can just come up again, Chrysler, Fiat could raise the issue in after a final judgment and say that no, this thing should never should should have been compelled arbitration in the first place. So I thought it was it was a wise move for Judge birdsong to get a law of the case ruling on this question, rather than just a challengeable? interlocutory ruling. Yeah. Yeah.

Jeff Lewis  11:30  
Here's case a good reminder. There's a there's two deadlines in the statutory basis for motions for to reconsider. There's the 10 day deadline for changes in facts or law. And then there's the anytime the judge learns of new law deadline, which is not really a deadline other than Entry of Judgment at subdivision see, you know, the Court of Appeal didn't so much forgive the parties here for filing a late motion for reconsideration so much as they found well, that normal 10 day rule doesn't apply judge even without a motion sua sponte. There's a change in law anytime up to the entry of judgment can change its mind. Interesting read on this case,

Tim Kowal  12:09 
there was a case that we covered Jeff, a couple of years ago on this podcast. I didn't pull it up. I'll try to pull it up, maybe include it in the show notes, but but it was on this topic about filing an untimely motion for reconsideration. And on the one hand, you could say, well, it's not under the 10 days, you're too late. But on the other hand, the court the trial judge can always has the inherent authority to reconsider its own ruling. So what's what's the harm in filing an untimely motion for reconsideration? I remember you and I discussing a case that suggested that it was that it was improper or frivolous to file an untimely motion for reconsideration. And so take care. Don't be too flippant about just saying, Oh, well, the 10 days. That's that's not a real deadline, because the court always has inherent authority to reconsider. This case tends to the untimely motion for reconsider consideration wound up being successful. And the Court of Appeal even said that it was that it was error for the court not to exercise its discretion to reconsider on its own motion.

Jeff Lewis  13:11  
Well, yeah, 100 will be this Tim, you know, timely, valid motions for reconsideration and extend your time to appeal your normal 60 day period. So the question is, if it can a motion for reconsideration under subdivision see under the anytime category, and that basically extend your time to appeal anytime.

Tim Kowal  13:36  
If it's if it's not a party motion, but it's a it's a motion for reconsideration on the courts own motion? No,

Jeff Lewis  13:44  
it says the Senate says it may do so on its own motion. So what if a party brings a motion saying change in law? We didn't repeal this order 1010 months ago, we're gonna bring a motion for reconsideration. 10 months later, you're wrong on the law. The judge denies it may appeal. The question is can you as the Notice of Appeal time period from that prior order been extended by filing a motion for reconsideration that's outside the 10 day timeline, but within the anytime you want timeline?

Tim Kowal  14:16  
No, no, I'm pretty sure that's that may be the Branner case. That that it's it's an invalid motion for reconsideration if it's not timely. I think maybe the brand or case was the the motion for reconsideration was not supported by a declaration to valid it has to be supported by a declaration but also to be valid, it has to be filed within within that 10 day period. So no, I think it does not qualify. Maybe the that's why I thought maybe the more creative argument would be to say, well, yes, your honor. The party's motion was invalid but the court made the motion on its own made its own motion under and when the court exercises the inherent authority to make its own motion to reconsider Under Is that a motion under 1008? I tend to think not. But yeah, maybe that's a creative argument you could consider making if you're in a pinch, right? Alright, let's move. Let's move over to anti slap motions Jeff, you'll you'll like this one is our resident anti slap King, this is Misko it's versus county of PACER out of the Third District. This case split from from other slap precedent and held that you don't have to do a line by line list of allegations in your, in your Notice of Motion for your slap motion. Now, this this line by line allegation rule comes from the rules of court governing motions to strike and anti slap motion is a special motion to strike. So some authorities have held that this means that the California rule of port three point 1322 applies and three point 1322 requires that all the allegations that you plan to challenge in your motion must be quoted chapter and verse in your notice. And that's that's chop Wong Park versus nozari. But the third district disagreed and a published portion of its opinion in the Misko its case. There the Deputy District Attorney filed a whistleblower complaint argued that she had been demoted after making an ethics complaint about a text that the acting da received from a supervisor's wife and the plaintiff believed that the text contained an implied quid pro quo. And so she blew the whistle on at the county filed an anti slap motion contending that the demotion was actually part of an official proceeding. And so therefore protected conduct under the anti slap statute in the court, the trial court denied the county's anti slap motion. Why? Well, because the county had failed to quote verbatim the allegations that were to be subject to the motion, but the Court of Appeal disagreed. The Court of Appeal acknowledged that yes, rule three point 1322 applies to motions to strike, but an anti slap motion really applies only to claims not to stand alone allegations so so that that rule applying to strike motions, requiring that you list out all the specific allegations isn't really a good fit for the special motions to strike under the anti slap statute, which really only reaches claims not discreet allegations. And besides the time limits under Rule three point 1322 Obviously don't apply to anti slap motions because anti slaps the deadlines there are governed by their own statute. So the legislature seems to not have had three point 1322 in mind when it was drafting for 25 point 16. The anti slap statute. All right, Jeff. Yeah, we got to have your comments on this. I know you have thoughts.

Jeff Lewis  17:40 
I love this case. I love this decision. I hope it's not a DEA published it. It's the right rule, especially when you're dealing with a plaintiff that let's just say doesn't allege things clearly or in a coherent manner. It's hard to quote verbatim word salad. And, you know, there's this case. And there's another case that the legislature really could clean up ever going to amend the anti slap statute. There's this issue in terms of specifically exempting special motions to strike from this line by line requirements. There's also the issue of, you know, as a couple of cases that have held that anti slap motions cannot be heard are filed in limited jurisdiction cases. And it's this huge loophole. So if somebody wants to shut somebody up, instead of suing an unlimited court, you sue and limited jurisdiction, and you don't have to worry about anti slap motion. So

Tim Kowal  18:32 
that work, Jeff, absolutely. There's

Jeff Lewis  18:35  
a case Laurel owners homeowners association is the case and it says, Nope, you can't file an anti slap motion in limited jurisdiction cases.

Tim Kowal  18:44 
I was not aware of that loophole. That's yeah, have you here?

Jeff Lewis  18:48 
Yeah, it needs to be that that needs to be closed. And the rules need to be clarified regarding this line by line issue?

Tim Kowal  18:53 

Jeff Lewis  18:56 
let me just say that said, as a matter of practice, I think it's always a great idea in your Notice of Motion to provide a table, especially in a defamation action. If you've got 15 things that were said about your client, you can number them 12345 In the anti slap motion 15 things and then refer to them by number, it could be a helpful index for the court. So

Tim Kowal  19:14  
back to this. We'll be talking about the Misko Woods case, then and you don't technically have to, to list line by line all the allegations, you're challenging in your anti slap motion, but the part vs. Nazeri is still a published authority. So we have a split of authority on this question. What do you think, Jeff? Next time you're opposing an anti slap motion and in the notice doesn't list out line by line all of the verbatim allegations being challenged? Are you going to cite part versus nozari and say that the motion needs to be denied?

Jeff Lewis  19:46 
I suppose you I'm usually the moving party, but I suppose yeah, I could cite that case. And then footnote the other one, because of my duty of candor to the court.

Tim Kowal  19:55 
Yeah, there you go. Yeah, but as a reminder, whenever There is a split of authority under auto equity sales, Inc versus Superior Court, the trial court is free to choose, which published a court of appeal decision to follow. So it can follow either the misco its case and say that now, the allegations don't need to be set out line by line in the anti slap motion or it could choose to fall apart versus Nazeri, which says the contrary. All right. There was a case came up over the Racial Justice Act, Jeff, and this applies to criminal cases, which is not really our bailiwick, but I thought was interesting. Anyway, this is the Austin versus superior court case out of the second district. This was from January of 2024. In this case, the defendant Russell Linwood Austin had murdered his pregnant ex girlfriend in her apartment with her two year old present. Austin had slit her throat so violently that he had nearly decapitated her Austin and fled, leaving her bloody body and her dying fetus with the naked two year old child. The DA charged Austin with double homicide and sought the death penalty. But because Austin is a racial minority, he's entitled to protections of the Racial Justice Act. So he challenged the death sentence citing criminology statistics on race disparities in charging and sentencing. The trial court denied the motion, ruling that statistical analysis alone does not meet the threshold showing under the Racial Justice Act, and the majority in Austin versus superior court basically agreed, but remanded for an evidentiary hearing. So what the Racial Justice Act require provides, Jeff is that a child a defendant who challenges the charges or sentence sought against him, must satisfy a two prong test to challenge the charge or sentence against him based on racial disparities. The two prong test is one the defendant personally was being charged more harshly than similarly situated defendants of other races or ethnicities. And the second prong is that statistical evidence shows a historical pattern of racial inequality in the jurisdictions capital charging practice. So the problem here in the Austin case was that on the first prong, the legislature really had provided no guidance how a defendant was to go about showing that he or she was personally charged more harshly than similarly situated non minorities, that the defendant along with several law professors, Amicus in amicus briefs, including Erwin chemerinsky had argued that a defendant should be able to establish both prongs just by relying on statistical evidence. But the majority disagreed and said that all statistics merely show the charges and the sentence sought and the race but not the facts indicating the ruthlessness of the act in relation to other cases. So that's why the facts of this case were were putting high relief in this case, the violence or brutality of the acts here indicate that well, there could be other murderers involved, but this one was particularly ruthless, and that should be taken into account. And that might not be captured in mere statistical analysis. The court did declined to create a bright line rule, however, but the court did conclude that showing similar conduct likely requires some sort of review of the underlying facts of the other cases. And so that's why the court sent it back for an evidentiary hearing on that point. So the statistical analysis wasn't quite there, but the trial court had denied a evidentiary hearing on and the court thought, well, you are you're partly right to reject it on merely on the basis of statistical evidence that doesn't get you there. But you have to give the defendant a way to get there through an evidentiary hearing. And in some further research on this, Jeff, I noticed that I think I think this is in the daily journal journal, Brenda Starr Adams had noted that public defenders have shared anecdotally that raising violations of the Racial Justice Act is resulting in better plea Office offers from prosecutors, because it creates a it creates a burden on prosecutors, they have to turn over all the all they're charging statistics to the to defendants. So that that kind of creates that creates a bit of a burden for prosecutors. And so it is creating an incentive to offer more generous plea bargains. Interesting. Okay, now back to some nerdy stuff, Jeff, regular civil nerdy stuff. Rodriguez versus Rodriguez. This is where it stands for the proposition that you can appeal from a post judgment border, but it does not resurrect an ability to challenge the underlying judgment. This case involved a visitation order for great grandparents, and the court had ordered another order, modifying it and the mother appealed from the modification, but the court in Rodriguez held that, yes, the modification was appealable. But the issues that the mother was challenging were actually in the first order. The mother had not appealed from the first order. So. So you know, too bad. So sad. Your challenge fails, you needed to have appealed from the first order. We'll we'll link the other details and relevant cases here. In the show notes, we've we've covered this general topic before, Jeff. But the reason I highlighted this one is because there are cases that go back and forth a little bit, we covered at least one case, the if you recall, Peltor versus 100, get thin. And, and I was I was vexed by this case, Jeff was just vexed because in that case, the complete opposite happened, where there was an appeal from a cost order, and in the appellate tried to challenge the underlying judgment, just by having appealed from a later cost order. And I thought, well, of course, it's going to get dismissed, that doesn't challenge that there isn't a proper way to challenge the underlying judgment. But the court let it go anyway, even though the judgment had been filed a whole 10 months prior well outside the outer deadline to appeal. So Well, in this case, the Rodriguez case, the the mother's appeal did violate appellate procedure. It's hard for me to conclude that it wasn't worth a shot.

Jeff Lewis  26:25  
Yeah, yeah, for sure. For sure.

Tim Kowal  26:29 
Okay, and then one one more case, Jeff, that I wanted to highlight. This is just because it was a this case resulted in a reversal on substantial evidence review. So our savvy listeners will know that among the various standards of review, the most difficult appeal to win is where you are challenging on substantial evidence, but it worked here. The case is Guzman versus you Nan. The plaintiffs claim here was based on Labor Code section 3706. The case involved a the plaintiff was a food truck worker who was cleaning up after a shift and and walk walked outside the food truck and got hit by a car and was was was injured. The court didn't the opinion didn't really discuss the nature of the damages. But the the issue was, who is the employer who is liable for liable for the plaintiffs harms? Was it the food truck owner? Or was it order? Or is it the owner of the commissary where the food trucks all kind of reconvene and get fueled up and prepared for their next shifts? And there was a there was a question on that a lot of evidence at trial back and forth. But really the only evidence that supported the the the jury's verdict that it was the commissary apparently the commissary had the deeper pockets here, because that was that was what the plaintiff was going after was liability against the commissary. But the only evidence that the commissary was the employer rather than the food truck is that the the plaintiff employee thought that he was employed by the commissary and in the Court of Appeal said, Now what what you think isn't really evidence unless there is some some other independent evidence that supports that belief, but just the plaintiffs own mere speculation about who his employer was, didn't rise to the level of substantial evidence. And, and even though that that seemed logical to me, it's it's still felt like a close call. Not only because it's still substantial evidence review is so deferential, but it's also very difficult to raise properly. As you know, Jeff, we're as appellate attorneys, one of the reasons that we don't like raising it not because it's not only because it's a long shot, because it's it's really easy as the appellate attorney to screw something up, you might miss right, you know, one page of reporters transcript and the record, you might leave out one, one of the trial exhibits. That was that was key to supporting the judgment and any, any missteps, you might, you might include everything in the record, but then fail to cite it all in your statement of facts in the appeal. So lots of ways to screw up a substantial evidence appeal. In this case, one of one of the podcasts, one of our podcasts, alumni, John Dodd was the appellate specialist representing the appellant. So that was a good move, hiring an inexperienced appellate specialist to raise this turned out to be a successful substantial evidence challenge. In the Guzman case. Yeah,

Jeff Lewis  29:26 
congratulate John Dodd for winning a substantial evidence victory, very hard to think about doing one of those one, one of those microwear. All right, Jeff, now you got a couple of cases. Yeah. So this first case, it's unpublished, and it's a criminal case, but it has potential anti slap implications. I do a lot of malicious prosecution actions in the context of anti slaps because typically when someone files a malicious prosecution action, the defendants file an anti slap motion. This case involves a civil case for malicious prosecution bought brought by a Former criminal defendant for malicious prosecution against the complaining witness in a criminal proceeding, the person who filed the police report and press charges. And the defendant got out on summary judgment in the malicious prosecution case under an obscure doctrine known as the interim, excuse me the adverse interim adverse judgment rule, which says, Well, you've been sued for malicious prosecution. But you can prove in the prior case, there was a dispositive motion like a motion for summary judgment, and or a motion for directed verdict. And you squeaked by meaning you got to the jury, because at some point, a judge looked at the evidence said, yeah, there's enough here. That's an automatic shortcut or proxy for probable cause. And therefore, you should be able to get out of a much prosecution case and oftentimes in the context of an anti slap motion. So this case, Jackson V. Laura presents a twist on that doctrine in that it applied the interim adverse judgment for the first time this rule to a criminal proceeding, the criminal defendant now plaintiff had filed a motion for acquittal. And that was denied. So the prosecution, you could say, squeaked by got to go to a jury, ultimately, the jury ruled in favor of the defendant. But because they squeaked by, because there was no extrinsic fraud involved. Surviving that dispositive motion was held to bar any leader civil action for malicious prosecution. And I raised this case for a couple of reasons. First, your criminal defense lawyer, and your client says, Hey, this case is over. Want to sue the DA, I want to sue the judge, I want to sue everybody for malicious prosecution. First of all, tell him that's ridiculous. But second, you have to disclose to that client that look, I might bring a motion, let's say a motion for acquittal or some other dispositive motion. And if I lose that, if we go to a jury after that motion, you might be forever foreclosed from suing for malicious prosecution. That was one issue, then the second reason I brought this case up is like me, I can't I can't understand why this was decided at the summary judgment stage rather than the anti slap stage. I don't get it. But maybe someone who's smarter than me or Fran or one of our other audience members will email me why why a slap wouldn't have been brought here.

Tim Kowal  32:16  
Yeah, that's that's interesting. I wonder in how many criminal cases or is the is the defendant bringing a what was it a motion for acquittal? Yeah, exactly. Yeah. And I wonder if that's going to, to depress the appetite to bring such motions because if you lose that motion, it means that your that your your your hopes of a malicious prosecution case, if you wind up winning, in successfully defending the prosecution, your hopes for a malicious prosecution case are kaput? Yeah, well,

Jeff Lewis  32:46  
most criminal defendants are really just concerned with getting out of this one case, and, and most of them don't have the means I'm gonna guess to file a separate action from the prosecution where you have to self fund that lawsuit. But I bet in the context of white collar crimes, financial crimes, those a bit malicious prosecution actions are frequently threatened. And if you're a white collar criminal defense lawyer, your client has said, this is just the first lawsuit. The second one's coming. You've got some disclosure obligations. Yeah.

Tim Kowal  33:15 
But as you said, this is a this is a non published case. So. So the so the interim adverse judgment rule is still officially unknown whether it applies to criminal cases. Yeah, yeah.

Jeff Lewis  33:30 
Although I gotta say, I'm contemplating putting in a request for publication just as a member of the bar, it's it's interesting issue and curtails malicious prosecution actions and gives DBAs and criminal action witnesses, a little more breathing room in terms of their willingness to come get police reports, etc, and not worry about a subsequent malicious prosecution action.

Tim Kowal  33:51  
Yeah. Yeah, that would be that'd be a good deed for the day, Jeff. Yeah. Then that request for publication? Yeah.

Jeff Lewis  33:57  
And then the second case, I want to talk about it's not so much an appellate decision so much as it's the California Supreme Court agreeing to grant review, in a case called city of Gilroy versus Superior Court, it evolves the Public Records Act statute, and whether or not there's implied in the Public Records Act, a duty to preserve certain records that are responsive, yet exempt for three year period, which is the statute of limitations for pra actions or while litigation is pending at cetera, or whether there's no obligation on behalf of the public agency to preserve or retain records. At the Court of Appeal level. The Court of Appeal held yeah, there's no duty this is not a retention statute. There's no duty to retain or preserve. The California Supreme Court took it up on that question on whether or not there is a duty to preserve records, at least while the organization records were. The request for those records was pending. And they were litigating over this question of the exemption Okay,

Tim Kowal  35:00 
so the exemption has not been decided yet. Right. All right. So, so until it's it's determined that it's exempt, and the agency can't just exercise its own prerogative to say, well, we deem that they're exempt, so therefore, we're going to destroy them.

Jeff Lewis  35:16  
Well, let me I mean, if I were the public agency, I probably would frame it a little differently, like, hey, we the public agency have normal retention policies, and we're not gonna make an exception to that regs exception to that retention policy, based on the fact that we're litigating this exemption? Yeah.

Tim Kowal  35:31 
And do they have to? Do they have to continue to retain the records even when there is not a public records act pending or litigation on the issue pending? Is that part of the issue to be decided and Supreme Court review?

Jeff Lewis  35:45 
I'm not sure. Yeah. I don't know if it covers that issue as well. I don't know. Let's, I'm gonna watch this case. Yeah.

Tim Kowal  35:51  
Yeah. Yeah. These Public Records Act requests cases are always interesting to follow. Okay, by the way,

Jeff Lewis  35:57 
as a reminder to our audience, if you lose one of these cases, you are you're helping with an appeal. Statutory petition for writ. You don't file a notice of appeal. you file a petition for a writ? Yep.

Tim Kowal  36:10 
Yeah, that's right. Don't don't wait the 60 days. You remember the the statutory period for the for the writ, Jeff? I don't, but it's short. Yeah, it's short. It's,

Jeff Lewis  36:20 
it's shorter. The 60 days? I

Tim Kowal  36:22 
know that. Yeah. I want to say it's want to say it's the 20 days. But um, but this is not legal advice. standard disclaimer. Okay. A few tidbits. First, I got this, this helpful tip for all of you, specialists, appellate law specialists or, or a specialist in other classifications, least the appellate specialist, Lisa Parrish, che on the on the LA CBA. listserv offered this, Jeff and I wasn't aware of but this is, this may be helpful. If if, if you're trying to find those specialists MCL e credits and are in are having trouble coming up with them. If you do have general MC elite credits, and they are geared toward your area of specialization, you can self certify as as having as those being counted toward your Legal Specialization. And Lisa had had sent an email to the Legal Specialization unit who confirmed quote, If the class is specifically geared toward the specialty area, it can be counted toward Legal Specialization. Unquote. So thank you to Lisa parish Shay for for contributing that useful nugget to anyone who is aided by that. I know the the the deadline for reporting is already passed, but for your next reporting period that may come in handy. Yeah. Yeah. That's good to get out. Okay, what one one little tidbit? Jeff, I wasn't aware of this. Maybe I should have. I know that. Ben Schatz noted on his on the SoCal appellate blog that Justice Rafeal of the fourth district is, is looking to be apparently going to be transferred to the second district. But he has to be vetted again. Oh, by the genii commission. And I wasn't aware of that, that once you're already a justice on the on on the Court of Appeal, you have to be you have to go through the whole process over again, if you get transferred to another district. But apparently, that's that's the same goes for for federal judges as well. If you get transferred. If you get nominated from one circuit to another, you have to be confirmed by the Senate again. Is that your understanding? Jeff? Yeah.

Jeff Lewis  38:29 
Or like, for example, if you want to be promoted from Associate Justice of the Supreme Court to Chief Justice of the Supreme Court, I think you go through the same process of correct

Tim Kowal  38:38 
Yeah, I was in law school. When? When when that happened when chief when? Well, that, you know, when, when I was Chief Justice Roberts, you didn't get to you get elevated, he went straight to the Chief Justice ship, but

Jeff Lewis  38:51 
yeah, yeah, that's showing my age. Yeah. The

Tim Kowal  38:55 
fourth district Division One has a new voluntary civil mediation program. So look for that. If you are, if you're in appeal in San Diego, there's an option for voluntary mediation program news on Judge Newman's suspension. We've reported on that a couple of times. That suspension has been upheld the national panel that reviews judicial misconduct cases recently affirmed that Federal Circuit Judge Polly Newman suspension for refusing to undergo medical tests as part of a probe into her medical fitness, saying that she hadn't shown good cause for not complying. Yeah. Yeah. And one thing I noticed is just because we've reported a little bit here and there on speedy trial in the age of COVID, in the aftermath of COVID, the Supreme Court of California denied review of a first district Division Three unpublished opinion in People vs. Marmon where the Court of Appeal had rejected a claim that a defendant speedy trial rights had been violated by an 11 month delay during the pandemic court The court said that the delay was presumptively prejudicial. But the but the court had joined other courts in concluding that the delays in 2020 and 21 were due to the pandemic and eight months of the delay had stemmed directly from the COVID-19 shut down and proceeded to trial courts reopening a separately concurring justice wrote that she remains concerned about the pace at which the San Francisco, San Francisco Superior Court acted to clear the backlog of criminal cases after it returned to pre pandemic levels of service at the end of June 2021. So the upshot here is that the right to a speedy trial still has not done a whole lot as an impediment to court shutdowns and slow downs. But the but the courts and Supreme Court still remains concerned about trying to get the courts up to speed and clearing their backlogs. Now, yeah, Jeff, you had pointed out, brought to my attention this new ABA rule? Yeah, it's a

Jeff Lewis  41:02 
it's a resolution that was passed by the ABA saying its schools can lose its accreditation if they don't have a policy in place that does two contradictory things. One, isn't everyone's right to free speech. But to protect everybody from disorderly speech or hate speech. i Good luck with the schools figuring out the balance there. You could pass a policy but how it meets that two prong test? I don't know. I don't get it. Yeah,

Tim Kowal  41:29 
I noticed that. Yeah, they said the ABA is House of Delegates. And they, you know, they said that the law schools must develop and publish policies that encourage and support free expression of ideas. And on the other hand, they must also forbid disruptive activities that hinder free speech. So this question about is offensive speech harmful? Is it still still up for grabs? We don't know. You don't know the limits there? Yeah. So is this just his? Is this just a enacted to look like they are responding to the problem without actually advancing the problem solving problem? I suppose it's good

Jeff Lewis  42:05 
for a school to have an official policy to avoid, you know, arbitrary actions by a dean, you know, for example, excluding someone from campus for making a speech that it's written, but boy, I wouldn't want to be the one drafting or enforcing this policy. Right.

Tim Kowal  42:19  
All right. And last tip, last tidbit is that the Ninth Circuit has created a panel to study artificial intelligence, the AI committee was convened by the courts Chief Judge, Mary McGrew, Mirga, and is set to be chaired by Judge Eric D. Miller, the AI committee will identify issues that could arise from the use of AI in court and make suggestions as to practices that should be encouraged or banned. Yeah.

Jeff Lewis  42:46 
Okay. Good luck with that AI is moving so fast. By the time a report comes out from this committee, AI is gonna be doing 10 to 10 new different things. Yeah,

Tim Kowal  42:58 

yeah, very true. It's, it's moving faster than the speed of regulation.

Jeff Lewis  43:03 
But yeah, by the way, they're not a sponsor of the podcast. But you and I are both big fans of superhuman, great email program. Yeah. I just noticed today, they have this new AI product that will auto prompt three possible responses to an email. So you get an email, you hit reply, and it populates three possible responses for you to get if you just can't get your fingers. Moving then to draft a response yourself. Yeah. Interesting technology. Yeah,

Tim Kowal  43:31  
well, that could be Yeah, that could be useful in some in some circumstances, maybe people I don't know trying to set set an appointment on my calendar for me. Maybe I'd be curious to see how AI can help fend off people like that. Alright, well, that's gonna wrap up. This episode. Again, we want to thank casetext for sponsoring the podcast each week we include include links to the cases we discussed, and we infer that we use casetext daily updated database of case law, statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on case text basic research when they visit That's Yeah.

Jeff Lewis  44:12 
If you have suggestions for future episodes, or you want to send us an AI written email, 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. The

Tim Kowal  44:23 
next time, you

Announcer  44:24  
have just listened 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. 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