The California Appellate Law Podcast

Should You Take a Writ? Anne Grignon on Arbitration Writs & 3 Tips for Your Next Appeal

December 07, 2021 Tim Kowal & Jeff Lewis
The California Appellate Law Podcast
Should You Take a Writ? Anne Grignon on Arbitration Writs & 3 Tips for Your Next Appeal
Show Notes Transcript

Appellate attorney Anne Grignon joins Tim Kowal and Jeff Lewis to discuss her recent win in  Banc of California v. Superior Court, a writ petition from an order compelling arbitration. Anne discusses when and why to take a writ from nonappealable orders. The attorneys then turn to private judging generally, discussing Justice Segal's recent caution about the industry's potential overuse of that privately compensated judges, and Presiding Justice Kline's similar sentiment that "private judging is an oxymoron" and is "undermining public justice.” Anne also shares three tips for your next appellate brief, before the three discuss some recent cases, including strategies to consider in approaching statements of decision.

Appellate Specialist Anne Grignon's biography and LinkedIn profile.

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

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

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Cases and other resources mentioned in this episode:


Anne Grignon:

And I can't tell you how many times the judges ask that. What rule... we're making laws not just your case, what rule would you want us to set out for the whole court?

Announcer:

Welcome to the California Appellate Law 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:

Welcome, everyone. I am Jeff Lewis.

Tim Kowal:

And I'm Tim Kowal, California Department of Podcasting-- license pending moral character determination. 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 specialists 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 and trial court and on appeal.

Jeff Lewis:

Welcome to Episode 19 of the podcast.

Tim Kowal:

Yes, and today we welcome Anne Grignon to the show, Anne is an appellate attorney at the Grignon law firm, along with former Court of Appeal Justice Margaret Grignon. I wonder if there's a relationship there. Anne previously worked at Reed Smith and has numerous articles published in The Daily Journal concerning appellate practice. And she has a recent appellate victory that we're going to be talking about today. So welcome to the podcast, Anne

Anne Grignon:

Oh, thank you, Jeff. And Tim, for having me. It's much more exciting than the normal appellate day.

Tim Kowal:

Yeah, no. Well, I I disagree. I think I think a day spent doing nothing but appellate briefs is a great day.

Anne Grignon:

Well, then you are in the right practice. Right.

Tim Kowal:

So tell us a little bit more about yourself Ann than I captured in those three sentences.

Anne Grignon:

Well, I lived in Huntington Beach until I was three and I'm lucky enough to live here again now as an adult. Yes. And I am the proud dog parent of terrier mixes, which makes living in Huntington Beach with our great dog beach. Amazing. I also like to sail the Catalina with my husband and I am a double eagle. I went to Boston College undergraduate and law school, there are triple eagles who went to BC high school but at least before that was just a boys only high school. So

Tim Kowal:

Great. You said sailing you you sail yourself or do you? You turn or something?

Anne Grignon:

My husband is a lifelong sailor and I am in charge of keeping the refreshments flowing. There you go. And not breaking anything.

Tim Kowal:

My wife and I took a sailing class once. But now I'm lucky to remember to know how to tie my shoes. I can't tell you any of those knots still. So you're on the Board of Governors of the Women Lawyers Association of Los Angeles.

Unknown:

I was until just last month, actually. But I was on for 10 years. And I'm still on the amicus brief committee subcommittee for Women Lawyers of LA. So I get to help vet cases that come into women lawyers of LA to decide whether they line up with our mission, whether we should write an amicus brief ourselves or to join, especially with all the hot issues of the day, they're there were quite a few to evaluate in the last few years. So it's been really rewarding. And for your listeners, anyone who's interested can also help on the subcommittee help evaluate cases that come in. So

Jeff Lewis:

what kind of cases does the Woman's Lawyers Association get involved in what? Or maybe maybe a better question is what's their mission?

Anne Grignon:

Yeah, the mission is to promote equity and representation for for women in the legal field and elsewhere. And because it's an LA organization, we tend to be focused on California cases. So we and it can really be any case that affects women. So we've we got involved in the Affordable Care Act contraception, Amicus briefing, we also but it can also be something like a disability statute that disproportionately affects women or an employment law. And we've been involved in some family law cases as well. So criminal, so really anything that may just disproportionately affect women or children will get involved in it.

Jeff Lewis:

Yeah, that's really interesting. Have you observed, this is totally out of left field. So have you observed as I have, with the oral argument being available live for the US Supreme Court, listening to some of those arguments, the pausing and polite breaks that the justices take before interrupting a male attorney addressing the court and hear constant interruptions and cutting off the female attorneys arguing before the Supreme Court? Have you seen that at all?

Anne Grignon:

I haven't seen that so much as I've seen those articles that talk about how many times they interrupt the women justices. And so I think that's one really nice effect of the pandemic It's just not something that you know, they're very tradition steeped. They don't kind of look behind the curtain a lot. And so when they realized that was happening, they kept the format that allows all the justices to have a bit of a say. So I think, you know, being open to new things can be a good thing.

Jeff Lewis:

I do like the the ordered the way that the justices asked questions now, but I'm still concerned about female lawyers being interrupted. There's no fixing that without a cultural shift, I think. Perhaps, yeah. Perhaps that's a subject for another podcast. Sorry, Tim, go ahead.

Tim Kowal:

I know my partner loves getting interrupted for oral argument. And he seldom does so maybe you'd like to switch switch places there. So and tell us a little bit about your legal practice and how you evolved into an appellate attorney?

Anne Grignon:

Well, I started out in law school, I externed at the second district with Justice Patty Kitching, very, very lucky to be able to do that. And then I also had a first year summer with an appellate botique here. So I had kind of an early exposure. Also, my mother, as you mentioned to him is was an appellate court justice now retired at the Court of Appeal. So so I knew it existed and what they did, and so and then I started as a research attorney, my first year out of law school at LA Superior Court, and I think that has to be something like a medical residency, you know, if you don't, if you don't die, it's such a great experience. You know, everything from mold to dog bites to, you know, my first day, what is the demurrer? And things like that. So that really helped open my eyes to how many different areas of law there are, and actually made me much more prepared to handle anything that kind of comes in because that's, that's what appellate lawyers do. We don't specialize in a certain kind of lots more of an overall approach. So yeah, I think that really laid the groundwork.

Tim Kowal:

Yeah, that had to have been a great learning experience of being a clerk at the at the trial court level at the state at the state court level. In particular, I remember attending an ocba event with a with a trial core research attorney. And I just got so many good tips about how to I remember one of the great tips about the way to write the most effective reply brief is just to use bullet points and keep it to you know, just two or three pages that that really helps them. And so I tried to do that ever since.

Anne Grignon:

Yeah, it's, you know, replies typically, by the time it gets to the research attorney, at least when it was paper, I'm, you know, old I was there. 2003. So, by the time the paper got to me, I had about 20 minutes to read it. So yes, you know, simplicity and focus, and I always call it don't bury the lead, you know, don't don't tell me what you want. At the end. I you know, these for at least when I was there, it was one research attorney every two judges, four to eight motions a day, and you may have someone who's right out of law school. So it's, it's, it's a lot.

Tim Kowal:

Well, let me ask you this. This is something we talk about as appellate attorneys, you know, don't overuse typeface emphasis, don't, you know, don't apply a lot of boldface and italics, especially more than one type of emphasis. But in the trial court, I wonder if if that rule is a little bit more forgiving, because your time is so constrained in does it help you reading the briefs to see a bold underscored line and a long blockquote? I mean, probably would be preferable, just as to streamline it not put the whole blockquote in there, but the bold the bold underscore probably would lead you right to the salient.

Anne Grignon:

I always stick with italics, both from Margaret's professional advice, and also justice Fogle very recently doing a mock argument with that said, No bolding. It's like you're screaming at me. And so I you know, I have very much internalized that. So I think italics, there's a good place for it if you're not, and also overusing it. I mean, you know,

Tim Kowal:

do you use the same rule in trial court briefs as in appellate court briefs?

Anne Grignon:

I probably would just because I'm a little more conservative, if you really maybe if it's a really long rule you know, when you need to blockquote it but this one phrase is that you know, you've got to focus them in on then I might throw in a bowl but I would almost never do

Tim Kowal:

it. What is your favourite district and division to to argue in court of appeal?

Anne Grignon:

Well, of course, I have to say second because that's where my mother said and also I externed there but I have done arguments in several other places. I like the six district courthouse. There's great restaurants nearby and the San Diego courthouse is great and I've really just found all of the Court of Appeal justices across the state are just so engaged and involved and you know, I rarely get not you know, you rarely are just presenting and not getting questions and the and the give and take which I which I find to be a lot easier to figure out what they're really worried about. Add in a case.

Tim Kowal:

Yeah. And how about do you have? Are there any cases that come to mind? Is there one case that maybe you wish you hadn't hadn't taken? I can think of, I think of my own. But I wonder if you have one that was kind of a learning experience. And you know, for the future, I'm not going to take that one. Again, if it comes up?

Anne Grignon:

Well, it was actually so I started at a small firm, a maritime firm in Long Beach. And then I went to Reed Smith, where I practice for five years, and I got, you know, at the smaller firm, a maritime law covers pretty much everything, we had a case with gold doubloons. But then going to Reed Smith, I got so used to the support staff structure system, you know, if you need an associate, there's always someone there who can help put things together. And then going out to a small firm with Margaret and I love one of the first cases we took on, we didn't do enough reviewing of how big the record was. And so we just we thought, Oh, this is an interesting issue. And maybe, you know, and it was a writ. So of course, those summary judgment, right. So those have pretty strict timelines. And so really, because of that, I think that's good advice for people, you know, maybe transitioning from a bigger firm with more support to a smaller firm is to be really aware of your resources and what you can take on and we got it done, but it was, you know, you can imagine,

Tim Kowal:

yeah, yeah. So you see, you bit off more than you could chew on that one, or took a lot of chewing to get a day. More than you expected.

Anne Grignon:

Something like 20 volumes of appendix So

Tim Kowal:

yeah, that's that's a big one. So when when this this, a bank of California versus superior court came across the wires, and I saw your name attached to it, it was a repetition that was granted. And and I contacted you straight away and thought I got to have you on the podcast to talk about it. So so this was a repetition on the question of whether the triple A or the Superior Court should decide whether a dispute was subject to arbitration. And how did you get involved in the case? Were you involved from the beginning or to trial counsel contact you after after this arbitration dispute came up?

Anne Grignon:

Yeah, we were not involved in the beginning of the case, trial counsel, Mike Keebler, of Keibler, fuller, feller and cave contacted us. And they contacted us after the the tentative ruling in this case initially was to deny the petition to compel arbitration. And so but later on down the road, the trackwork changed his mind to granting it which was adverse to trial lawyers. And so that's when they contacted us and asked us to evaluate the case. And we evaluated the pleadings in the order up to that point.

Tim Kowal:

So this was this case involved in order compelling arbitration, which is not appealable, as as many of our listeners will know. And we all know that writs are a low percentage proposition taking them up to the Court of Appeal. So it was this a tough call to take decide to take this up?

Anne Grignon:

Yes. Well, I I don't know about you, but I almost never recommend taking a repetition. I, I always feel terrible, you know, having to let people down. I know people have high hopes that wrongs can be righted quickly. And I say even if the wrongs can be righted, it won't be quickly, or rarely. But in this case, when we were evaluating it, we found a very recent sec, a second district case that was very similar to ours that involved multiple contracts, some of which had arbitration agreements, and some didn't. And so what we actually did was we recommended they make a motion for reconsideration, because there was still time to do that, because I think you guys probably know this as well, your best chance is to try to get the trial court to reconsider versus going up. And so so they took the shot, but the judge denied the reconsideration motion. But at that point, we had the new case, in the record, we were able to develop that argument in the trial court a little more before we took the wreck.

Tim Kowal:

Okay. Well, so tell our listeners a little bit about the case. We don't want to bury the lead here. How did it how did it get to the point where where you first saw it and decided to take it up on a writ?

Anne Grignon:

So when we saw the the other Second District case, it was Division One had taken it, as you know, the second district, you could end up in the same the same division. And so because there's always that chance, and we knew they would take their opinion very seriously. You know, we told them, we never recommend rates per se, but we say if this caught someone at the right moment, and they were interested, this is the kind of writ they might take. And that's because it's a really it's a really quick moving area arbitration. You know, there's new cases coming out all the time. And then there was the interplay with the federal law and, and a case called shine. And in this case, also, sometimes it's hard on a writ petition to show prejudice, why should the court step in now and say stead of waiting till the end. And in this case because the prejudice was so clear having to do a whole separate arbitration proceeding versus going right back into the trial court, we thought that the the pieces lined up enough that we could recommend if the client was willing to take a swing that it was a worthwhile read.

Tim Kowal:

Yeah, yeah. So the in the basic facts setup of the case, as I recall from reading the opinion, is that there were several contracts, one of which had an arbitration provision others that did not and I think there was some jockeying in the in the pleadings. I think maybe some of the claims on some of the the contracts that had our arbitration provisions were dismissed or something. And then so the question was do do the claims on these other contracts get arbitrated or not? And and the trial court said, Well, we're going to leave that to the AAA arbitrator, because the arbitration provision says that or the the AAA rules say that the arbitrator gets to decide arbiter arbitrability. And and you got the second district to say no, that's not that's not the case here.

Anne Grignon:

Yeah, it's a really confusing area of the law. It's, it's, you know, it's even if you have a reference to triple A rules, they consider that to be clear and convincing evidence of delegation to the arbitrator. And as I'm sure you guys know, once, once they say it goes delegated to the arbitrator, the arbitrator decides almost every dispute that could possibly come up with the contract. And so we were actually delighted to see this more it's case from division from the first district, which at least there was one court out there that had done some, you know, treated the the initial issue as Is there a contract with an arbitration agreement at issue first, and part of it was figuring out the wording, because normally you'd say, is it arbitrable. But, you know, the wording has been, Oh, if it's arbitrability, it goes to the arbitrator to decide. So, you know, we changed it to threshold question. And, you know, we really focused on the statutes, which say, the burden is on the party seeking arbitration to show that there is a contract and an arbitration provision at issue to begin with. And so we said the delegation to the arbitrator skips that step, and it just goes goes straight to the delegation. And that particularly in our case, where there's multiple contract just like in the more it's case, that there has to be a different rule, when your argument is that so in our case, there were seven loan documents, none of which had arbitration agreements, most of which had specific venue requirements, jurisdictions. And then the arbitration agreement itself said in the was in one separate contract entered into seven weeks later, and it said involved, it was a broad arbitration agreement, but it said it was for this agreement, and it was entered into after the seven loan documents, but it didn't reference the loan documents. So we were able to convince the court that those contracts and the and the complaint after we dismissed the two claims that involved the later agreement with the arbitration agreement, that complaint only address those first seven loan contracts. And so we convince the court that first day of the trial court has to decide whether this dispute involves those seven loan contracts, or the eighth contract. And then at that point, if it didn't involve eight contract with an arbitration agreement, it could get delegated out to the arbitrator. But in this case, they agreed with us that the seven loan documents were not an issue. And so the trial court should have denied the motion to compel.

Tim Kowal:

Got it. So this was somewhat fact driven based on the fact that there was multiple contracts, is there. Is there a broader holding that or broader lesson from the Bank of America bank of California case that our listeners should take away when they when they see contracts with arbitration provisions that called that invoke the eight rules?

Anne Grignon:

Yeah, I think, you know, some of that came out of the oral argument where the justices division seven is all the justices are amazing. But division seven, everyone had questions, all three of the justices were really pushing both sides to put out the broader parts of the law, the rule that they wanted to create. And the other side suggested that if if tenants sign signed a lease with the landlord, and then on the way out of the building, you know, and then something or not at least some kind of contract with the landlord and then are leaving the building and they're, you know, a container falls on their head or something they said, is that injury is are you saying that would be connected to this contract, even though in time it is but it's clearly not what's in dispute? And so I think the court was, was suggesting that there's there are areas especially if you have towards maybe separate from your contract claims where it should be separately evaluated.

Tim Kowal:

Yeah, when I read this case, and As we started talking about it, I was reminded of the the Brad Pitt and Angelina Jolie case. And it's a little bit of a different circumstance, because that dealt with a pro tem judge, but I thought it was what made me think about it is this question of who decides the threshold question whether the dispute gets arbitrated. I? I think that that has got to make that call not an arbitrator or a private judge. And I think by delegating that to an arbitrator, that seems to me no different from delegating it to a private judge. And I remember the forceful dissent was a dissenter concurrence. I can't recall it by Justice Siegel. In the Angelina Jolie case where he quoted the 1992 Judicial Council report stating, quote privately compensated judges pro tempore is illegal and pernicious, we are not for sale nor nor is the product of our labor. And I thought that the idea of delegating the the threshold question of arbitrability seemed to seem to kind of get a little bit too close to that line.

Anne Grignon:

Yeah, I think that's a good point. And you know, one of the problems is the US Supreme Court case, Shine was, you know, pretty clear that if it's, if it's got a delegation provision, it's going to the arbitrator, and they decide everything. And that was a huge hurdle for us to get around. And Margaret really identified that before we went into argument is something she was going to get pinned down on of isn't the US Supreme Court saying, you know, everything, no matter what goes to the arbitrator, first with with the arbitrability questions, so we were happy to carve out our little exception that we were able to get and but also I do think I don't know if the federal courts are doing it or not, but but those they're saying that it's a clear delegation, just by referencing the rules, you know, we include triple A rules or we agree to use jams. And that means you're clearly that's clear evidence that you want to delegate everything to an arbitrator. And I think the California courts should definitely take another look at that.

Jeff Lewis:

Yeah, yeah, I agree. You know, this whole notion of allowing a system of private judging or arbitrations, and the money that's involved in that system, giving them the question to be decided, when they have such a huge incentive to grow their caseload and the setting up of two systems of justice, where, you know, the traditional public model, where people have to wait years, or the private model where things are done quietly, confidentially, and if you have enough money to afford to pay the fees, I really find it distasteful. I read today from headshots blog that Presiding Justice Anthony Klein of the first district is retiring. And he quoted when he was asked, he was quoted when he was asked about his retirement about is going to go to jams are going to AAA. And he politely said no, he's gonna do some social justice work and said the whole notion to private judging is an oxymoron. The increasing number of disputes that are being decided in private arbitration behind closed doors is undermining public justice. I don't think people understand the significance of having independent courts. And yeah, that's sad. He's leaving the court. I think he was a voice that is needed.

Anne Grignon:

Yeah, I think arbitration is really not understood by the public for I completely agree.

Jeff Lewis:

Yeah, a warning note for our listeners, three appellate attorneys are hostile to arbitration. Okay, go ahead.

Tim Kowal:

Well, on that note, there was a recent case out of the fourth district Division Three that dealt with arbitration. I thought maybe we talked about it, it's Brown vs. T G. S management. CO, we'll put the links to the cases will be in the show notes. The the four three they're reversed in arbitration award for an employer defendant. The court relied on quote, the substantial body of case law holding arbitrators exceed their powers by issuing an award that violates a party's unwinnable statutory rights, or that contravenes in an explicit legislative expression of public policy and quote, this was actually a case from last year and I wrote about it then but the case was the employee was able to to reverse an arbitration award for the defense on the ground that that there were questions of public policy there, which is one of the exceptions but I was surprised to find find this exception applied here and the court reasoned that there was a de facto non compete that could not survive under Business and Professions Code section 16 600. The Court pointed to a broad confidentiality clause which even swept in information unrelated to the the business of the employer and the employee and swept in information predating the employee's employment. And I wondered if that if the Brown case might presage more cases where the Court of Appeal might make use of that public policy exceptions to drag arbitration awards under the ambit of judicial review appellate review.

Anne Grignon:

So we've recently had a few we've been involved in a few cases that have had this issue in the One Two of which we're in The context of illegality. So part, you know, either the part or the whole contract had illegal provision. And we have argued exactly this public policy illegality. And in one of the cases, we got a no chance argue something else. And the other two are still pending. And so I think I do think that this is a big area that I'm hoping will will become more used. But I, at least in our experience, I'm very interested to hear what you guys have been seeing arbitration agreements or awards are so routinely affirmed that we've really had a hard time even when there's illegality involved with a contract. Have you guys seen any luck with the public policy arguments?

Jeff Lewis:

i Yeah. I can't say that I've ever attempted such an argument. But I turn down clients seeking to appeal arbitration awards almost more frequently, than clients seeking to file a writ. That's how I view the stats, cuz I feel like I'm just taking money. And it's just it's just it's such an uphill battle. How about, you Tim?

Tim Kowal:

know, the same. I've been, I've been looking, I haven't seen other cases following the Brown case. But that's why I asked me this is this was a case that I don't remember if it was, I think it was a published case. So I would cite the Brown case and suggest that there's a trend going that direction. And hopefully, you'll get a court of appeal to buy it if you can find find some good public policy angles to it.

Anne Grignon:

Yeah, there's the illegality part is the hook. You know, I totally agree with you, Jeff, about not taking arbitration cases, we too are very, very leery of doing that. And really, for us, it was these were some really extreme issues where we would turn away nine out of 10. But illegality is is almost like sometimes they treat it differently than public the public policy argument. But we're trying to find a way to connect the two and make it doubly important for the court not to affirm because then it's it's making the court complicit in affirming an illegal contract and ordering and enforced and so we're hoping it will percolate like, Tim, I think you're suggesting and that maybe at some point, the courts will get more interested in this.

Jeff Lewis:

Tim, I found the most interesting thing about that case, because I wasn't aware of it before, was a nerdy appellate point. Let's get down in the weeds here. That arbitration transcripts that were not put in front of the Superior Court, were nonetheless allowed to be put in front of the Court of Appeal via request for judicial notice and relied on by the Court of Appeal. Wow. I found that kind of mind blowing.

Tim Kowal:

I didn't notice that part. Yeah, very interesting and surprising. Yeah.

Jeff Lewis:

Yeah, it's interesting point, I

Tim Kowal:

would think that the the record, the appellate record would be defined as whatever got put in front of the the Superior Court and the petition to confirm the award.

Jeff Lewis:

Well, let me let me ask you a hypothetical, Tim, what if the appellant were arguing some sort of a problem with the process of getting from the end of arbitration testimony to the point of an arbitration award? And you know, there's usually some back and forth and briefing and that kind of things, and whatever the documents were exchanged by the parties and submitted to the triple A, didn't quite make it into the superior court record. And then up on appeal, the losers claiming there was some sort of impropriety with the rendition of the final arbitration award. Aren't documents that were put before the GMs or AAA to get to the point of the arbitration award relevant to the Court of Appeals inquiry?

Tim Kowal:

I think they are.

Jeff Lewis:

Yeah, it's interesting. Read that part of that case. Thanks for pointing out.

Anne Grignon:

No, I think that that's a really important issue. That's one of the issues on reviewing illegality is that it is reviewed de novo by the trial court, and there's some different law on whether the Court of Appeal, obviously, they review any legal issues de novo, but whether the factual issues are reviewed to Novo by the Court of Appeal as well, which we know is unheard of. So I but I think you're right, those are those are important issues. So and you

Tim Kowal:

have any other you have a favorite appellate tip, or war story that you can share with us in our audience. Sure,

Anne Grignon:

actually, I was trying to narrow down and I got to three or four. So So one thing that my mother has always said is make sure you tell the story. And I said you could not give more vague advice. But you know, what she means is that, you know, especially when you have the facts on your side, make sure you're playing it up and telling a straightforward, simple story. I have nothing but sympathy for trial lawyers who have to get emotion out with such small amount of pages, and they have to use abbreviations and I have been there but if you have more space and the ability to tell a straightforward, clear story. It's so much easier for the court. And so that's one of them. And then the other the other rule is that she always emphasizing to me is what's the rule for this case? And I can't tell you how many times the judges asked that. What rule we're making lots not just your case, what rule would you want us to set out for the whole court? And and so many times people haven't thought through, you know, how how this would work? What how would it apply to the next case where and mostly they're concerned with? Where do we stop this so that it doesn't encompass every case?

Tim Kowal:

Now? Are they only worried about that if they're going to publish? Or if they're going to non publish the decision? They can just do any old thing they like?

Anne Grignon:

Yes, true. But sometimes they still ask about, you know, where are you getting this rule from, or, you know, if there's some way and it doesn't always work, sometimes the cases are a hodgepodge. But if you can synthesize out a rule that encompasses your case, it just gives you a leg up, whether they're publishing or not, and it may get you to publication if the law has been unclear if you're looking for publication. And then my last two said, tip is one thing we've been doing more recently is using pictures and graphs. In the brief, these are 6070 page papers, no one doesn't appreciate a bit of a break. And there are some things that are almost impossible to describe just using words. We, we had a case with a footlong weapon, and the picture of it was worth, you know, 4000 words right there. So and we've heard some feedback, not on our particular briefs, but we've heard feedback from the justices, but they're very open to pictures, graphs, other ways of presenting information.

Tim Kowal:

Yeah, picture can be worth 1000 words, and it doesn't count against your word count. All right. That's, that's great. So now with all these preliminaries out of the way we can get to the main event, and that's the lightning round. No, no,

Unknown:

I don't think I was warned about this part.

Jeff Lewis:

Well, yeah, you know, the first half of our podcast is the natural sleep remedy for folks listening. This is the lightning round, or we asked for short responses, one word, one sentence. Let's see how many of these vexing questions that concern appellate nerds around the world we can get through. All right, here we go.

Font preference:

century schoolbook. Garamond or something else,

Unknown:

Century schoolbook. Not a preference but a lot of the Court of Appeals in California prefer it

Tim Kowal:

yet they still issue opinions in Times New Roman. I don't know what gives there. I don't know.

Unknown:

It's the iPad is what I've heard if the Century shows up best on the iPad, because they're now much more remote.

Jeff Lewis:

Okay, all right. After a period two space or one space,

Anne Grignon:

I'm old school two spaces. Wow. Okay. Old school pled or pleaded, pleaded.

Jeff Lewis:

Alright, argument headings and your brief all caps, initial caps or sentence case.

Anne Grignon:

We do all caps, but I'm certain we should be doing sentence case or Yeah, sentence case.

Jeff Lewis:

Wow. Okay. Yeah, headings

Tim Kowal:

are just the top level heading top levels. What about subsequent, you know, Rome, you know, big letter A Arabic numerals,

Anne Grignon:

big letter A but the the number subheadings are? Got it?

Jeff Lewis:

Okay. All right. left justify or Full Justify?

Anne Grignon:

I think it depends on the court. I think they usually have different rules

Tim Kowal:

on use Full Justify. I haven't noticed that.

Jeff Lewis:

Well, you know, superhigh, the US Supreme Court just was recently on an amicus brief where yeah, the formatting and printing of those briefs crazy for justification that's true. barbaric. All right, here's a new one tip slipped into my list here. spaces between the periods and an ellipsis. Or no spaces is it.dot.or dot space dot space dot.

Anne Grignon:

I like no spaces because it makes less words in my brief.

Jeff Lewis:

Are you always pushing up against that edge?

Anne Grignon:

I'm a little bit more. There's a little more brevity, but Margaret has never once been under the word limit. So we are going to packing.

Jeff Lewis:

Wow. Okay. All right. And final question after major headings in the brief. Do you start the next section on a new page? Or just continue immediately below?

Anne Grignon:

Oh, I am a copy editor. So I wish I could have all the widows and orphans corrected and looking beautiful, but we just never have enough time to make it perfect like that.

Jeff Lewis:

Okay. All right. But yeah, we'll

Tim Kowal:

break at the end of every section.

Anne Grignon:

No, no,

Tim Kowal:

it just continues. Okay. Got it. All right. Well, you

Jeff Lewis:

survived our lightning round.

Anne Grignon:

Congratulations.

Jeff Lewis:

At some point Tim we got to get T shirts for a guest that say I went on the podcast and survived the lightning round. We'll have our people getting on that.

Tim Kowal:

That's right. I don't know what it looks like to not survive the lightning round.

Jeff Lewis:

They're still stuck on people due to spaces after a period. You know, people get stuck on that.

Anne Grignon:

I know it's really I think it's when you went to school, I mean, it's, we're and then and then your capacity for change, which ours is low. So since you know, well, and then we use yellow book, do you guys use yellow book or blue book? That's another big one.

Jeff Lewis:

I practice pretty much exclusively in the state court of appeal. So it's yellow book, I do very little federal work.

Tim Kowal:

Yeah, I do the yellow book. I do think just objectively, it's superior to the blue book. First of all, you know, I have to use a blue book if I'm in the Ninth Circuit, but I don't like it anymore. I used to be on law review. And I stood by the blue book, but now I think it's just abstruse and somewhat ridiculous.

Anne Grignon:

Yeah, absolutely. Reed Smith, especially we did quite a bit of federal and in state court. And so I can't tell you how many times I would have the site checker say what format are you using, it wasn't like some kind of combination of all of the above. So just from switching back and forth, so much, so.

Tim Kowal:

Alright, Anne I want to thank you for joining us. We're gonna move on to the point of the show where we talk about some recent cases and tidbits. And we'd like you to stay with us and type in if you have any comments about some of our recent cases. Great, thank you. Alright, so the first one, Jeff, that I wanted to talk about is this case out of the fourth district division to petty versus amazon.com. I found it a surprising case, the Court reversed an order denying a motion to compel arbitration. So we're still on the on the arbitration theme for today. But it but it did not reverse because the trial court but not because the trial court did not cite valid grounds to deny the motion. Instead, the majority reverse because the trial court failed to determine the threshold factual issue whether there existed in agreement to arbitrate. So for for listeners keeping up at home, you should know by now that that an order on appeal will be affirmed must be affirmed for any valid reason. But the court here decided that, that even though the trial court, it apparently decided that that got into the contract and found that that the arbitration provision did not apply here. But the Court of Appeal said, No, send it back. We want the trial court to tell us first whether there is a valid agreement to arbitrate, because the court was just had a burning curiosity to know the answer that question because the trial court just skipped ahead and said, Well, you know, maybe that's a hard question. I can decide, you know, much faster on this easier question for me. And that would be valid in any other appellate context, but for some reason, not here. And Justice slough, authored a very powerful dissent was fired up, which I think was was correct, which is said what I just said that a an order must be affirmed on any grounds. And that's what the trial court did here it it affirmed on a valid ground, and you're just wasting everyone's time by sending this back for the trial court to make this threshold determination is going to come right back up to us. And even if we whatever we decide on the on the threshold question, we still have to reach the merits on the second issue.

Jeff Lewis:

Yeah, I hadn't read this one before. It's interesting. I'm not a big fan of unpublished decisions, but this is one that belongs on published at least the majority,

Tim Kowal:

right. So here's another curious case, this is like going to try to get the name right. But it's hockey Noce Hall, Professional Services, Inc. Versus Courtney Schwartz, Inc. It's out of the again out of the fourth district first division, and following a jury verdict for the plaintiff, the trial judge retired. And after the trial judge retired after the jury verdict, the defendant filed a motion for new trial. So in a motion for new trial, the judge sits as the 13th Juror. So what's the right result here? This is a new judge who didn't sit during the the actual trial, what is the right result of Miss trial? Or can the new judge sit in on the rule on the motion for new trial and and weigh the evidence, but turns out that the Court of Appeal held that a new a new judge can just look at the dead record to see if there is substantial evidence that supports the verdict. And that's how this one came out. It was affirmed. And it struck me as as kind of an end run around the right to getting a new trial motion heard by the quote unquote, 13th Juror. I don't know what do you what do you think about this one?

Jeff Lewis:

You know, it's it. This reminded me of a case you and I had it's one of the longest running cases you and I have had together where there was a trial, and then there was some sort of medical issue and the judge was not available, and we still pushed the case through the system. So this was

Tim Kowal:

a good point that came to my mind also that that one was after a bench trial. And and the judge who presided over the bench trial, drafted the state bit of decision, but but then retired before signing it. And so there is some some authority that says if the statement of decision is is fully fleshed out, and the only thing missing is a signature, then a new judge can come in and sign the signature. But there are other cases where it's just, you know, a rough draft of a statement of decision, and the judge retires or passes away. And the court say, No, it's it's not enough, you have to have a decision by rendered by the trier of fact some some new stranger off the street, you can't just put take a stranger off the street, slap a robe on them and have them render a decision in a case. But that's what happened here. And I thought it was very curious. There is some authority. There was another case that that held that a new judge can come in and rule on a new trial motion, but I thought it I think the standard on a new trial motion is slightly different than substantial evidence, because on a new trial motion, the 13th Juror independently evaluates the evidence to decide whether it is whether the best to do more than just decide whether the there is substantial evidence that support it that has to be sufficiently weighty and credible and persuasive.

Anne Grignon:

Why I have a similar issue once. And I think the statutory language is a little bit stricter than the case law has made it to be, which is the 13th Juror standard. That's it. That's a case law interpretation. And if you look at the actual the actual CCP code section, it's a little bit stricter on what the judges are supposed to be doing. Might be

Tim Kowal:

that interesting. Okay. Yeah, it is. Yeah, new trial, is I think it does still have vestiges of its of its common law iteration. But it's, it's now kind of a creature of both, I think you still have those common law, things that hang on to it, as well as obviously, the statutory construction. And then the last case I wanted to bring up is legendary builders Corp versus Grove wood properties. This is out of the second district Fourth Division to its unpublished decision. We actually talked about this one before, but I'm still boggling at it. It's a statement of decision case, the judge, the trial, Judge omitted making material making findings on certain material issues from the statement of decision. And the appellant did everything the appellant is supposed to do requested the statement of decision objected to the omissions in the statement of decision and got the Court of Appeal to agree yes, these are important material questions of fact, that need to be included, and you have a right to them, so reversed, but with directions to send it back down to the trial court to take a look at the record and just make the findings this time. And then then when the appellant is not happy with it, then come back up on appeal, and then we'll reach the question of whether it's supported by substantial evidence. So I just think what the heck good is that? Because I have always told clients and trial attorneys, the statement of decision process is so important. It's it can create such a powerful issue for appeal. Because if those important material issues are omitted, then you can get a reversal. But now if this is the result to be expected, I gotta ask, Are you going to continue telling clients and and trial counsel to go through the whole rigmarole of the statement of decision process, which is very cumbersome, it can tend to hurt the judge? Or do you just skip it and go straight to the substantial evidence review on the implied findings on appeal?

Jeff Lewis:

Yeah, your advice to clients should continue. This is an outlier case. I you know, we read this, and we talked about this a couple of weeks ago with Frances on the show. Yeah, this omitted issue issue is perplexing. And there's a story behind the story there. There's something either it's a result, outcome. There's some story behind the story.

Tim Kowal:

But it's happened to me once before in the case, you know about and and there was a story behind the story there, too. But is it your experience that that in this situation? Normally, the Court of Appeal will reverse with instructions to do what than to just do a new trial?

Jeff Lewis:

I cannot tell you that I've actually ever handled an appeal of a statement of decision issue in terms of the sufficiency or adequacy of a statement decision. So

Tim Kowal:

yeah, well, I don't know either, like what I know what I think should should happen. But I don't know what actually happens other than I've seen this case, and I've seen what happened to me, and in another one of my cases, I'm going to I'm going to keep my eye out and see what other cases are doing. Because if this is the norm, then I'm going to change my advice.

Anne Grignon:

Well, I think not we would argue that that's judgment in your favor, right. The the judgment doesn't address everything it should address, but I guess in theory, it's like the the statement of decision didn't address one of the legal issues or or something else and or didn't do a statement of decision at all and was supposed to have done one when when that happens. They send it back to do with a minute decision, right?

Tim Kowal:

Yeah, yeah. Which Yeah, just seems like a terrible waste of everyone's time. There is another case there's a case that But I cited when this happened in the briefing before this happened to me when I was arguing that the absence of a statement of decision after the appellant has duly objected to that absence, when the trial court persists in failing to supply the missing finding, it leads to a reasonable inference the Court of Appeals should make that that finding cannot be made on this record. Now, I asked the court of appeal to do that didn't didn't do it in my case, and obviously didn't do it in this case, you know, but I guess that's the argument you have to make that the Court of Appeals should should make the finding that the finding cannot be made.

Jeff Lewis:

All right. Unless you have any other cases to discuss, Tim, I think that wraps up this episode.

Tim Kowal:

It does. So if you have suggestions for future episodes, please email us at Cal podcast@gmail.com. That's c a l podcast@gmail.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. See you next time.

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