Announcer : 0:07

Welcome to the California Apellate 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 Cole and Jeff Lewis.

Tim Kowal : 0:22

Welcome, everyone. I'm Jeff Lewis. And I'm Tim Kowal off. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us our appellate specialist who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal.

Jeff Lewis : 0:51

Right and on this week's episode, we'll be discussing cases finding that orders generally considered not appealable to be appealable, such as tomorrow orders summary judgment, orders and statements of decision.

Tim Kowal : 1:02

And at the end of the episode, we'll discuss some other appellate news, including a legislative proposal that would give the state's Chief Justice more control over the COVID-19 situation and other future emergencies. So the catalyst for this week's episode is a decision out of the fourth district division one out of San Diego. The case is brown versus Butler. citations to all cases discussed today may be found in the show notes. It's an unpublished case, but it contains a warning to practitioners that orders sustaining dimmers may be treated as appealable.

Jeff Lewis : 1:36

Yeah, this is a wild case it was a very unusual both in terms of its fact pattern and procedural posture posture. The plaintiff in the case filed a complaint against the church of Mormon and alleged a conspiracy to spy kidnap, harm him that conspiracy involved male prostitutes, pimps, double worshippers and gang members. And at the end of the, at the end of the day, the Court of Appeal found that the case was frivolous and imposed monetary sanctions of $15,000 against the appellate attorney who represented the client seeking to appeal a dismissal of some of these theories. And so this case is very unusual, because of the facts and also because the appellate lawyer was sanctioned. You don't see that too often. And also in terms of the the dimmer order being appealable. What did you think about this case, Tim?

Tim Kowal : 2:36

Well, the first thing I thought was interesting is that the sanctions awarded were against the attorney only. Right, the order was not against the client. So the court seemed to be sending a pretty clear message that it's the attorneys duty to independently review the sufficiency and the plausibility of the allegations and not just take the clients word for it.

Jeff Lewis : 3:00

And as a secondary basis for imposing those sanctions. A pellet lawyer was sanctioned for citing outside the record, you and I both know, when you make an argument or you cite the facts in a brief you're supposed to cite to the appellate record. And although we don't have the appellate record, the Court made it pretty clear here that the appellate attorney cited outside the appellate record pretty extensively.

Tim Kowal : 3:24

Yeah, the case obviously seems to be a warning against pleading frivolous conspiracy theories. But there's another cautionary lesson here. And that, because in in the courts apparent desire to reach sanctions and to impose sanctions against the attorney, the Court of Appeal, held that a dismissal order on a demur is appealable.

Jeff Lewis : 3:45

Yeah, a court where it really went out of its way. I mean, as we know order sustaining a demur are not considered appealable, the plaintiff must usually await entry of judgment of dismissal. And while courts may treat dimmer orders as appealable is generally couched in terms of discretion, which has to be exercised to safeguard the right to appeal.

Tim Kowal : 4:05

But in this decision there, there wasn't any mention of discretion. The court simply held that a written signed and filed order sustaining a demur is appealable, period. I think this means the trial or lawyers should now assume that dismissal orders are immediately appealable. What do you think, Jeff?

Jeff Lewis : 4:24

Yeah, I agree. I agree you should file a notice of appeal in response to dismissal order to preserve issues for appeal and avoid the risk that at some point, some court disagrees that a judgment is required later on to vest appellate jurisdiction. And, you know, you brought to my attention, Tim this case, the fidelity national home warranty cases arising out of the fourth Appellate District division one, which concerned class action and dismissal order in a class action, and whether or not the dismissal order was Or was not an appealable judgment. And there's some reading in that case that really gave me some pause about whether cases that are not class actions have appealable orders, even absent a judge of it, I really doubt that case was a real eye opener for me.

Tim Kowal : 5:21

Yeah, the holding in that case, confirm that dismissal orders were generally generally appealable. But in that case, because in a class action, notice was required to the class and notice had not been given in that case, therefore, that the dismissal failed to meet the statutory elements of a dismissal for the particular procedural requirements of a class action. And so that's what what defeated the appealability. In that case,

Jeff Lewis : 5:48

yeah, I appreciate you bringing that case to my attention, because it really has opened my eyes.

Tim Kowal : 5:53

Well, speaking of certain orders that are generally not appealable, sometimes being found appealable. I've seen this in the context of statements of decision. A statement of decision, as most practitioners know, is issued following a bench trial. They're issued pursuant to code of civil procedure, section 632. Statements of decision are normally followed by a judgment. And the appeal lies from the judgment. The case is routinely mentioned that a statement of decision is not itself appealable except that sometimes it is appealable.

Jeff Lewis : 6:28

Right? Right. The key California Supreme case on this point is Alan versus American Honda Motor Motor Company from 2007. And that case deals primarily with when the 60 day deadline begins to file the notice of appeal. But in that case, the trial court only entered a statement of decision and a minute order but not a judgment.

Tim Kowal : 6:49

Right. So the Supreme Court gives some guidance in the Allen case on when a statement of decision may be appealable. Unfortunately, in my view, the guidance that the court gave was not entirely clear. What I found very curious was that the court says that statements of decision may be deemed appealable in the courts discretion. But given that appeals are jurisdictional, injecting an element of discretion seems to me precarious. The general rule is that a statement of decision is not appealable. But if the Court of Appeal decides that it's appealable, in your case, and your appeal is doomed, so litigants who want to preserve their right to appeal probably should treat a state statement of decision as an appealable order. So Who then is this is the court addressing when it talks about a general rule that statements of decision are out? appealable?

Jeff Lewis : 7:41

Right. Yeah, that's a good question. And the law land case went on, excuse me, the island case went on to conclude that the statement decision was not appealable. In that case, as far as we can tell from the opinion, the statement decision was signed, filed and explained the trial court's final disposition of the case.

Tim Kowal : 7:59

Right. So normally, you would, you would think that, that the court would probably go on to find that, in its discretion, the statement of decision was appealable. But that's not what it held it. It held that not only was it not appealable. But the court used the word error in saying that the the Court of Appeal committed error. When I found the statement of decision was appealable. It didn't say it was an abuse of discretion to treat it as appealable, but rather that it was an error. So my tip for the where he is where a statement of decision has all the earmarks of finality, a practitioner should treat it as appealable. If the order is in writing, decides the claims and leaves nothing else for the parties to do, you should assume that it may be appealed. And if a judgment does not timely follow assume that you have to appeal the statement of decision.

Jeff Lewis : 8:48

Right. And so in some cases, you might have multiple notices of appeal that you've filed just to cover your bases and then later on, dismiss or consolidate those various appeals just to make sure you've covered all your appellate pellet basis.

Tim Kowal : 9:02

Right. And depending on what the order is, you might also need to consider taking up a writ.

Jeff Lewis : 9:07

So we talked about an outlet How have subsequent decisions dealt with the appealability of statements of decisions?

Tim Kowal : 9:14

Well, not entirely consistently. A few years ago, I moved to dismiss an appeal on the ground that the appealable or was the statement of decision, which would had been issued over a year before. The Court of Appeal denied my motion in an unpublished decision. And it concluded that the statement of decision was merely tentative and thus it was not appealable. What about some more recent cases dealing with this appealability issue?

Jeff Lewis : 9:38

Well, we have the Valero refining company case that was issued recently that that was the case involving a notice of entry of judgment being sent to the wrong address, I guess, trial counsel had changed their address midway through the litigation. And when I read that case, it looked like the Court of Appeal held that because the trial Court had sent notice of entry of judgment to the old outdated address that did not trigger a 60 day period. I wasn't sure if there was something in this case about a statement decision.

Tim Kowal : 10:10

There's also a recent decision out of the first district division for that treated an order granting a summary judgment as appealable. without waiting on the the entry of the following judgment, that case was Lowery versus Kindred healthcare. There's also another recent decision out of the sixth district, that one treated an order sustaining a demur as appealable. Because it was followed by a judgment. That case is when versus Elon. Interestingly, the third district also recently treated an order sustaining a dimmer as appealable. But this case stated that it was because the order was not followed by a judgment. And that case is Weimer versus nationstar mortgage. So I got the sense from reading both of those cases that the reasons following the word because maybe we're not the actual reasons for the court finding that the order was appealable. Maybe that's something more to do with free flowing interests of justice or something like that, based on a past experience, Jeff, I wanted to propose a hypo and ask if you think it suggests the Court of Appeal could effectively deny appellate review, no matter what the appellant does. So here's the hypo. Defendant has been sued by plaintiff. After filing an answer defendant realizes it has a cross claim against plaintiff that must be raised in a compulsory cross complaint. So a defendant files a motion for leave to file the compulsory cross complaint, the trial judge is supposed to grant that just as of right, but the trial court decides to deny the motion. Unless the order is reversed, defendant will risk forever losing its cross claim. What do you think defendant should do, Jeff?

Jeff Lewis : 11:53

Well, the order does not dispose of all claims against the defendant because you still have the complaint hanging around. So it's not immediately appealable the defendant has to wait around for a final judgment or try a discretionary rent.

Tim Kowal : 12:08

Okay, so I agree the order appears to be non appealable. And let's say the Court of Appeal denies the writ, as it has the discretion to do and as it typically does. So defendant now has to wait until the end of the case to appeal so it can get its cross complaint filed. So the parties litigate for the next year. Eventually plaintiff decides its case as a loser and files a voluntary dismissal. So now what is defendant doing a voluntary dismissal is not a judgment and is not appealable. There are many cases that hold that the order denying leave to file across complaint is now over a year old. So if ever It was appealable, at the right to appeal, it is now expired. So what what options are left to the defendant appellant in that case?

Jeff Lewis : 12:55

Yeah, it sounds like two options. One, that sounds like a great explanation of good cause to grant the writ petition that possibility as good cause for why the Court of Appeals should grant the writ petition. Another possibility, I suppose is if you get denied the ability to file a cross complaint, maybe you could just file a new action.

Tim Kowal : 13:15

I agree. I thought I thought of that possibility to that's why I I do say that, that it's only arguable that the defendant may or may forever lose the right to file that claim. Of course, the defendant will have to wait and see what the next trial judge does when they see that that claim filed and supposing the new defendant files a demur on the basis that that was already adjudicated, and that it was required to be filed as a compulsory cross complaint in the previous action. There might be a neat way for the trial judge to get that new case off its docket. Right. We have some other recent cases concerning demurrers, don't we, Jeff?

Jeff Lewis : 13:55

Right. I sent you the Coleman case, which is underreported and it's a case involving an improper. But it's a good lesson in making sure you have a complete appellate record. In this particular case, I think both the complaint and the dummer. Were not included in the appellate record. And so in the Coleman case, the Court of Appeal, basically didn't hear the merits of the case found that the issues were forfeited, because the appellant did not carry his burden of making sure there's an adequate record on appeal.

Tim Kowal : 14:26

Yeah, I saw that that seemed to me like a harsh result. There are certain documents that are deemed part of the appellate record, just by operation of the rules of court, like trial exhibits are a good example. And other documents. The rules require that the court must include, though I know pleadings are not among them. But the court It seems the court could have reviewed the complaint on its own authority couldn't have

Jeff Lewis : 14:54

we see that all the time, especially in unpublished decisions where the court when it wants to read Issue reads additional documents or finds the documents in needs.

Tim Kowal : 15:06

Have you seen any any cases that discuss any limiting principles on that? Does it have to be? I assume it has to be contained within the courts. The trial court's record, correct?

Jeff Lewis : 15:15

Oh, yeah, absolutely. Absolutely.

Tim Kowal : 15:18

And and matters subject to just judicial notice. I assume that would that would pretty much constitute the universe of anything that the Court of Appeal could look at.

Jeff Lewis : 15:26

Correct. It'd be extraordinary to go outside those two areas.

Tim Kowal : 15:30

I think we had a couple other cases that we wanted to talk about. And we, Jeff,

Jeff Lewis : 15:35

there was the Dumas's case. I can't remember if that's when you sent me or I sent you. This is a second district case. It was published. And it concerns this new meet confer requirement or recent meet confer requirement regarding dimmers. There's a rule now that requires defendants counsel to meet confer with plaintiff's counsel in advance of filing a dimmer. But that doesn't seem any real penalty to not following that rule, because in the Dumas's case, it said it confirmed the statutory language that the failure to meet confers not grounds for denial of or overruling the demur

Tim Kowal : 16:13

that seemed to be the upshot that that we had reached in our office about when we saw some tumors that were filed, after pretty pretty scant meet and confer efforts and reading the statute closely didn't seem to provide any real enforcement mechanism.

Jeff Lewis : 16:29

You know, I haven't seen this done. But I suspect a judge who feels strongly about this meet confer requirement might just use his calendar, calendar powers to order matter off calendar until the parties do a more meaningful meet, confer without deciding the merits of the dimmer.

Tim Kowal : 16:48

You think there's a way for a plaintiff to suggest that possibility to the trial judge?

Jeff Lewis : 16:55

Absolutely. Yeah, absolutely. Just question whether the VAT judge wants to clog his docket up by having a dimmer appear twice on a calendar once when meet confer was insufficient, and then come back a second time.

Tim Kowal : 17:06

And would you just put that in the opposition?

Jeff Lewis : 17:09

For sure. Absolutely. Absolutely.

Tim Kowal : 17:12

And then I think the last case we had talking about some of these issues was the renfrow. Case,

Jeff Lewis : 17:18

right? This was another impro per case, it's it's underreported. But I wanted to bring this case up because involves the use of the Judicial Council form notice of appeal. I've seen this a few times where checking the wrong box on this Judicial Council form or using the wrong words, inadvertently narrowing the basis for the appeal can result in a finding by the court of appeal, that appellant has actually forfeited an argument. So for this reason, I try never to use the Judicial Council forms. Because I find just doing on pleading paper, a notice of appeal gives you a little more flexibility to use very broad language in terms of what orders are being appealed from.

Tim Kowal : 17:59

What was the wrong box that the appellant checked in the renfrow case,

Jeff Lewis : 18:03

the appellant had the option of indicating who's appealing from a judgment of dismissal following an order sustaining a dimmer or other in here, he checked that he was appealing other and because he said other rather than judgment, dismissal, following the orders thing and demur the court construed the notice of appeal very narrowly, and this appellant was not able to have the merits of his argument really heard by the court of appeal.

Tim Kowal : 18:32

That's interesting, because the the long standing policy is that Courts of Appeal or to construe notices of appeal liberally correct.

Jeff Lewis : 18:41

It is I suspect, the fact that this particular appellant was improper may have affected the outcome here. Okay, that wraps up the portion of our podcast where we were discussing recent cases. There's some recent news coming out of the Courts of Appeal that we want to discuss. Tim,

Tim Kowal : 19:00

right. There's a there's a new Assembly Bill number, it's Assembly Bill 3336. it proposes to give the Chief Justice of the California Supreme Court unilateral authority to issue statewide emergency orders concerning trial court operations. This, this proposed bill would would include extending statutory deadlines. Perhaps this would make calculating deadlines during a crisis less daunting than it than practitioners are seeing now or perhaps not. I've been asked by some clients to calculate when their statutory deadlines to file post trial motions are to file notice notices of appeal. And it is it is something of a of a task to go through and look at the specific trial court, local orders and the District Court of Appeal orders and find out exactly which extensions apply what orders have been extended, how long they've been extended for at the extensions have been further extended. So having having a single single source of the extension orders, certainly has some desirability to it.

Jeff Lewis : 20:07

Yeah, it's the situation is a mess. I'd be curious who and for what reason. Anybody votes against this some this proposed assembly bill because sounds like a great idea to me. So another bit of news that caught my eye this week was a $40,000 sanctions order issued by the fourth Appellate District Division Three down there in Orange County, in a case entitled Blumenthal versus Fletcher Jones. That's a pretty big sanctions, order and very unusual. And there's some language in there about the appellate lawyers asserting frivolous arguments, and that that case caught my eye.

Tim Kowal : 20:47

There was a case that caught my eye out of the Supreme Court. It was an order dismissing review of a case. And it made me think that before petitioning for Supreme Court review, you should be aware of getting what you asked for the cases, Galen versus Redfin Corporation. And in that case, the Supreme Court had issued a grant and hold order, way back in 2014. The court recently dismissed review, and that's six years that have just been wasted to the litigants. Right. And lastly, here's an appellate tip for appealing summary judgments. There was a recent case out of the first district Second Division, the cases in silico versus hope Lutheran Church, that case reversed a summary judgment and find and found that there was error in denying the non moving party's motion to conduct additional discovery. If you are opposing summary judgment, always try to find something you need and discovery and file a motion seeking a continuance if the request is denied. And summary judgment is granted. The in silico decision may help you.

Jeff Lewis : 21:54

Yeah, that's it. That's a great tip. That's a great tip. In other news, the second district division seven this past week, had a video oral argument where you could watch the argument by video, I think that's something that's been around for a while on the fourth Appellate District down in Orange County. And in the Ninth Circuit, this is something new. In the second district, it's just division seven, but I'm hoping eventually the other divisions of second district will also have video arguments.

Tim Kowal : 22:25

However, for some, some clients that they they enjoy tuning in and watching the oral arguments from their computer from the comfort of their own home. Right, right. Well, I think that wraps us up for this episode of The California appellate law podcast.

Jeff Lewis : 22:40

Yep. Thanks, everyone, for joining us, and we'll see you next time.

Announcer : 22:44

You 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 ca l podcast.com. That's ca l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again