Jeffrey Lewis
Welcome everyone, I am Jeff Lewis.

Tim Kowal
And I’m Tim Kowal. 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. If you find this podcast helpful, please recommend it to a colleague.

Jeffrey Lewis
and rate us highly on Apple podcasts or wherever you listen to our podcast.

Tim Kowal
All right, Jeff, we got three cases and tidbits to report. I think you wanted to start by admitting that we’re infallible and sometimes make mistakes and you should not take everything you hear on this podcast as gospel truths or something of that effect. You got a recantation or a disclaimer or some sort of correction to make.

Jeffrey Lewis
Yes, we are the purveyors of fake news. last week or the week before, we’re talking about new laws hitting the books in 2026. I told you about a new law that talked about a requirement that for discovery motions, you now have to put in a declaration, not only that you’ve met and conferred about the substance of the case, but that you met conferred about a court reporter. You’ve talked about it with your opposing counsel. And that’s still true, but I also reported an early version of the draft bill also had a provision saying that all notices of all motions, not just discovery, had to include a statement about whether the moving party was going to bring a reporter or not, which is a great idea. But somehow that between the time of the draft that I saw and the time that law got actually signed and enacted, that portion got dropped. So. Bottom line is your notices can stay the same. You don’t have to revise that. But in terms of your meet and confer declarations for discovery motions, you still need to chat with the other side and put that in a declaration about have you talked about a court reporter with opposing counsel?

Tim Kowal
I think I got my first meet and confer or disclosure from opposing counsel about a court reporter. And again, I think that’s a great idea because I that’s happened to me more than more than a few times showing up and I don’t ever want to be without a court reporter and sometimes the other side doesn’t care but sometimes the other side is of the same mind and they don’t want to be without a court reporter and no one thought to check with the other side and even if you did check with the other side Jeff I don’t you told me I was a monster for even considering the possibility that someone might say yeah I’m gonna bring a court reporter then oops I forgot yeah okay

Jeffrey Lewis
You are a monster.

Tim Kowal
Okay, first case I wanted to talk about. I flagged this one a month ago back in December. Professor Sean Martin flagged this one. was I thought it was very interesting juxtaposition about how federal courts and California state courts treat contempt a little bit differently. so here are the two cases. And they actually came down just within a couple of days of each other, taking very different approaches to how, whether the act has to be actually in violation of the letter of the order, which is a California rule, or a broader view taken by the federal court that it can be in violation of the spirit of the injunction and still result with your being in contempt. So the first opinion was out of the Ninth Circuit in the high-profile Epic versus Apple dispute. There Epic, the maker of Fortnite, sued Apple, claiming that There was an antitrust violation and Apple was able to prohibit Epic from allowing users to purchase game-related content outside of Apple’s own store, for which Apple took a hefty commission. I don’t understand how any of this works. It’s been too long since I’ve been playing video games.

Jeffrey Lewis
Well, yeah, let me fill it. I’m an avid Fortnite player. And I really enjoyed, by the way, how Epic toyed with Apple when this was going down, when the big dispute was happening. And finally, Epic was off the Apple system, Epic makes a lot of money selling skins, which are characters that you play. And one of the characters they came up with was this black and white. They called it the Tart Titan. It’s a black and white figure with an apple on its head. And it was making fun, was a riff off the old Apple commercial when Apple used to make fun of PCs. But the bottom line is microtransactions are huge in Fortnite. People will pay for music or pay for special weapons or how they look and what they hold and what they wear. I never understood that. But it’s big money and Apple wanted a piece of it and Epic didn’t wanna give Apple a piece of it. And there’s been years of litigation over this and that’s ultimately. I think what this contempt finding was about, about the ability of Epic to re-enter the Apple app store and not have to give Apple a piece.

Tim Kowal
Yeah, yeah, that’s that is something like what it was about. So the trial court granted an injunction in favor of Epic and it barred Apple from stopping Epic from making sales outside of Apple’s platform. So I guess, you know, if they were selling these skins or something that Apple couldn’t prevent it from doing so outside of Apple’s platform. But then after the injunction issued, Apple had sophisticated counsel who advised them to a way to circumvent the injunction even though technically complying with its terms. So what happened was that consistent with the injunction after and after the issuance of the injunction, Apple allowed Epic to continue selling content on its own, but Apple instituted a mandatory royalty rate that was essentially the exact same as the commission that it had previously obtained from Epic on the earlier Apple mandated internal sales, which is what prompted the whole lawsuit and the injunction in the first place. And the district court said, no, it’s not technically a violation, no contempt. Rather, you can’t do it. And so it did find that there was contempt. And the Ninth Circuit affirmed and saying that Apple’s conduct admittedly followed the literal terms of the injunction, but the Ninth Circuit held that the finding of contempt was proper because there was a violation of the spirit of the injunction even though its strict letter may not have been disregarded. I thought that was very jarring because that’s not my experience in California state court and contempt proceedings which is what we’ll find in the next case. you have any comments about how the Ninth Circuit treated that contempt issue finding that there was contempt in violating the spirit or intent of the order?

Jeffrey Lewis
No, I mean, I don’t have any comments other than I think that’s uniformly the rule in federal courts, not just the Ninth Circuit. I know there’s a case back East involving Plains and contempt and people being shuttled onto Plains and lawyers telling a judge that, don’t worry, there’s not people on Plains. And I think that same kind of broad view of orders and the spirit of the views being employed in those contempt proceedings right now as we speak.

Tim Kowal
Well, let’s go to the next case, the California case. That will give us a better foundation on which to compare and contrast. So the California Court of Appeal, in a published opinion, found that there was no contempt in this case involving divorce proceedings. The divorce proceedings involved a joint custody order over the child.

Jeffrey Lewis
Okay.

Tim Kowal
with one of the parents living hundreds of miles away to have weekend visitation. And in order to permit meaningful visitation, the trial court also ordered that, neither parent shall schedule any school events, extracurricular, religious events, medical or therapeutic appointments, or other events during the other parent’s custodial time without approval of the other parent, end quote. So the idea was, you you’re not supposed to confound the other parties. time with the child by scheduling a whole bunch of extracurricular events. And notwithstanding that order, one of the parents, the one with primary physical custody, did proceed to sign the child up for various sports activities that occurred during the other parent’s weekend visitation period. There was a school mountain bike competition, a ski team with weekend ski competitions, a basketball team with weekend games. And so the other former spouse objected saying that this conduct performed without her input or consent interfered with her visitation period and violated the court’s order since it means that she would have to fly up to Nevada City all the way from Orange County for her weekend with the child only to have it taken up by all these activities that the other parent had unilaterally set. And the trial court took a broader view, a spirit of the order type of view and found the parent in contempt and imposed 2,000 per violation.

Jeffrey Lewis
Thank

Tim Kowal
But the Court of Appeal reversed, basically the exact opposite of the Nights Circus and the federal rule about following the intent or the spirit of the order and saying that even if it violated the spirit and intent of the trial court’s order, it didn’t violate the literal words of the order. And also, it was technically the school who scheduled the events. The parent only signed up for the activities and the events were essentially beyond his control.

Jeffrey Lewis
Well. You say technicality, I’m going to push back a little bit and say there is a way to harmonize the federal and the California standards in that I think there was a lot of evidence in the epic case, there was epic evidence that Apple acted in bad faith, that it didn’t intend to follow the order and was looking for ways for end runs around the order. Whereas in the California case, it was more of a third party coach or a school or a team set these dates. And I think there’s the absence of bad faith there that motivated the higher court to reverse. By the way, it was reversed on a substantial evidence standard. So kudos to this lawyer for getting a reversal on the daunting substantial evidence standard.

Tim Kowal
Well, yeah, and especially since it was substantial evidence, I would have argued that the trial court certainly could have inferred that the parent who scheduled all those activities certainly could have or should have known that they are going to wind up with weekend activities during the other parent’s weekend time.

Jeffrey Lewis
Yeah, yeah.

Tim Kowal
But yeah, I don’t know if they can quite be harmonized. They literally said that it didn’t violate the literal words, even though it obviously conflicted with the spirit and intent of the law. So we’ll look out for more of those types of cases. But my understanding of contempt in California state practice is that there does have to be a violation of literal written words of the court.

Jeffrey Lewis
Sure, that might be the case, but this was a writ proceeding, if I recall correctly. And I just think the bad faith of the parties or the absence of bad faith might push a court in either direction in terms of spirit and letter.

Tim Kowal
Okay, moving on. Let’s talk a little bit about Make UC a Good Neighbor versus Regents of University of California. And the heading I have this under is that legislative abrogation and the perils of Pyrrhic victories and CEQA litigation. This is a case where the appellate court refers to its own prior opinion as smoldering ruin. this is a case where plaintiff scored two significant CEQA victories at the Court of Appeal, but then eventually still couldn’t get their private attorney general attorney fees granted because of intervening legislation that wound up that was directly responsive to the lawsuit. So what happened here is that plaintiff scored two significant CEQA victories at the Court of Appeal that established that crowd noise from student parties must be analyzed under CEQA and reviewed for alternative project locations. But the legislature struck back responding with the emergency legislation that abrogated both holdings and that led to the Supreme Court reversing the Court of Appeal decision. The plaintiffs, you know, undeterred went ahead and moved for nearly 1.2 million dollars in attorney’s fees under the private attorney general doctrine. They said that they prevailed based on the law at the time that they filed the suit. And they did win based on that law. But the trial court denied the motion because nonetheless, even though they violated a principle or they vindicated a principle and they were right on the law at the time that the lawsuit was passed, they still weren’t successful parties. so even though they proved a point about existing law, they didn’t achieve their objectives. to halt the project and that’s the touchstone for private attorney generals. So the legal question is, know, what is success on litigation objectives? Because as you know, Jeff, it doesn’t require you to obtain a successful judgment. You don’t have to have a you know, formal judgment in the case. You can get a successful settlement. It could result in a preliminary injunction that could lead to a settlement or otherwise effectively resolve the case and that can be a basis for finding that you achieved your litigation objectives. So the plaintiff here, a good neighbor, said that, well, know, the Supreme Court and the legislation really only reversed, it was really only directed at the residential noise and location issues. But we still vindicated a good principle as it concerns non-residential location issues. And that wasn’t really disfavored by the Supreme Court decision. And the Court of Appeal rejected that and said that that’s not how Rule 8.115 works about when a Supreme Court disfavors or disapproves of an opinion. That means it’s no longer authority on the central issues of noise and project location. And even though it this case involved residential, that reversal or that Supreme Court decision also disapproves as to the non-residential by implication.

Jeffrey Lewis
I how much the standard of review here generated the result because it’s an abusive discretion standard here in terms of determining prevailing party and all of that. at the trial court level fees were denied because the trial court found that this party was not a prevailing party. And I wonder if it had been the reverse if the court of appeal could have found a way to find there was no abuse of discretion. Yeah, it’s an interesting read.

Tim Kowal
Well, you’re saying that it could be abusive discretion to determine whether the plaintiff achieved their litigation objectives?

Jeffrey Lewis
Look, abuse of discretion standard, you get 100 judges in a room and none, not one of those 100 judges would agree that either this was or was not a prevailing party. And because the trial court had made the initial call that it was not a prevailing party, question is not what would the court of appeal do if they were called upon to decide the issue in the first instance, but only did this one judge act so crazy that 100 judges, out of 100 judges, no judge would have made the same decision. I think this is an example of a standard review, or at that’s how I try to distinguish it, because I typically make attorneys fee motions and determine that turn on issues of prevailing party, I don’t like this decision at all.

Tim Kowal
You know, like this one, this one strikes me as, it feels like a question of law, whether they prevailed here. If there was some argument by which they could say that, there was another objective to the case, look, there was some, these allegations in here that we actually did vindicate. And then maybe it would be up to the judge in his or her discretion to decide, okay, well, yeah, maybe there were two objectives and now I have to decide in my discretion which one was the major or the overriding litigation objective, because they achieved this other objective, maybe that was just a minor, a tangential objective and not enough, that would be a discretionary call.

Jeffrey Lewis
I agree with you, that’s how it feels, but the words actually used in this opinion twice at the beginning and at the end is that we find no abuse of discretion, not as a matter of law, blah blah blah. So, yeah.

Tim Kowal
Yeah, but you know that sometimes abuse of discretion is used for truly discretionary acts and sometimes they’re used for, you know, just bad legal rulings. Like, well, this was clearly hearsay and you let it in and yeah, we say it’s abuse of discretion, but really we just mean that there was no prejudicial error and so therefore not an abuse of discretion.

Jeffrey Lewis
hahahaha Yeah. Yeah, could be.

Tim Kowal
We’ve had that discussion before that why don’t they just say it that way? That it’s either hearsay or it’s not hearsay. That’s not subject to discretion. The question is whether the evidentiary error led to an abusive, prejudicial error.

Jeffrey Lewis
Yeah, I’m with you that the justices could have called this a question of law and still rule the same way.

Tim Kowal
Here’s the key quote that I wanted to read out from this case, Jeff. It says, fact that Make UC2, the fact that the Supreme Court’s decision is limited to residential projects is irrelevant. Having been abrogated by statute and reversed by our Supreme Court, Make UC’s analyses of noise and project location including its holdings, reasoning, and dicta, it’s referring to its previous Court of Appeal decision, are smoldering ruins, not a citable precedent. So this is how the Court of Appeal referred to make a good neighbors argument that, look, there was still something about the previous Court of Appeal decision in which we were the successful party is still citable, useful precedent, and drives the law forward, and is a good and useful thing. good public policy and everything and court of appeals haven’t done that. says, no, we were reversed. It’s now a smoldering ruin.

Jeffrey Lewis
Yeah, great turn of phrase.

Tim Kowal
Okay, so my takeaway from this one, Jeff, is that, you know, when it comes to private attorney generals fees, the legislature giveth and the legislature taketh away. know, PAGA is a legislative fee shift. So if you want those fees, you have to vindicate the rights that the legislature likes, you know, not just rights that you happen to like. If the legislature decides that, well, yeah, you’ve indicated a right, but we don’t like the right that you’ve indicated, we’re going to change the law, then that means that you no longer are. probably are no longer entitled to your private attorney general fees. Here’s another quote, the fundamental objective of the CCP 1021.5 private attorney general doctrine is to encourage suits enforcing important public policies. So there’s your watchword, important public policies. And who decides what’s important? Well, first and foremost, the legislature and then whatever the court thinks that the legislature is going to find to be a public, important public policy.

Jeffrey Lewis
Yeah.

Tim Kowal
Okay, the last case that I flagged to discuss, Jeff, is a Ninth Circuit one. It involves a Trump administration challenge to a discovery order. That parts, well, discovery orders are yawn, but I guess anything the Trump administration does that gets the attention of a Ninth Circuit panel is gonna be interesting. But the interesting part comes, as always, in a dissent where Judge Bumate bewares of a binding dicta trap. The case is American Federation of Government Employees, AFL-CIO versus Trump. This is a January 5th case, our first 2026 case that we’ve discussed on the podcast so far, I think. so here, the U.S. Court of Appeals for the Ninth Circuit declined to rehear a challenge by the Trump administration to a discovery order in a case filed by federal labor unions to block the executive branch from initiating mass layoffs. The dispute over the discovery order, which directed the federal government to produce the plans for reorganization and layoffs, gained significance after the Supreme Court last July cleared the way for the challenged reductions in force to take place. After that ruling, the discovery order remained alive and the Trump administration asked a three-judge panel for the Ninth Circuit to block it. The panel declined and now the full Ninth Circuit has declined to intervene. According to Courthouse News Service, it’s unclear whether the Supreme Court will take up the issue of discovery. Here’s what I thought was the interesting bit about this for our listeners. It says, binding dicta trap. Judge Boutte in dissent notes that under the Ninth Circuit’s peculiar rule, even the panel majority’s musings on what qualifies as deliberative could become precedent, even though the panel ultimately assumed that the privilege applied. So what happened in this case, the panel and eventually the Ninth Circuit declined to rehear or the Ninth Circuit declined to rehear a challenge to the District Court’s discovery order that required the administration to produce internal agency reduction in force plans. The government argued that these were pre-decisional deliberative documents and protected by executive privilege. And the panel majority and then eventually the the en banc Ninth Circuit rejected the Trump administration claim of executive privilege, ruling that the privilege was overcome without requiring plaintiffs to show bad faith or improper motive. And so that’s where it comes to Judge Bumate. That’s how Judge Bumate’s dissent comes in, objecting that this ignored separation of powers concerns. It failed to demand a narrow discovery order and opened the door to fishing expeditions whenever plaintiffs invoke ultra virus claims and the Supreme Court had previously stayed the underlying preliminary injunction finding the government likely to prevail on the merits but this discovery dispute continued to unfold below. Any thoughts on this one, Jeff?

Jeffrey Lewis
No, I got to I didn’t read this case, but I’m pleased to see some judges are concerned about separation of powers.

Tim Kowal
Yeah, this, I just thought that this, what caught my eye was this idea about binding dicta that we know because there is such strong horizontal stare decisis in the federal courts. So I think the concern was that if you start sounding off about things in a published panel hearing or certainly an en banc hearing or decision, then it’s going to be, you know, its There is such a thing as dicta and dicta is also not binding but sometimes it can be hard to determine what is or is not dicta.

Jeffrey Lewis
Yeah, for sure.

Tim Kowal
Well, OK, I guess that’s all the extent of the luminous commentary we have on

Jeffrey Lewis
Yeah, sorry. I’ve got three three things I want to talk about today number one California Supreme Court came out with a case where we were following an opinion in the city of Gilroy matter I think we reported previously on this this is a case involving the Public Records Act request and what had been teed up for the California Supreme Court was two issues one if the city or the public agency has fully complied produced all the documents is the case moot or may the district court or trial court, excuse me, still issued declaratory relief saying, hey, public agency, you did a bad thing in not producing these before, or you had an obligation in the past to produce these. And the Supreme Court came back and said, yeah, superior courts can issue declaratory relief if it’s not a one-off, but this kind of dispute is gonna be repeated over and over again. There’s some value in a declaration. to guide both the public agency and the public in the future regarding a public agency’s obligation to respond. So that was one of the issues they resolved. And the second issue was, does the Public Records Act impose any kind of document preservation issue, obligation on a city or public agency such that if they identify documents that are exempt, does the public agency who’s identified those documents as exempt have some sort of obligation to preserve those records. And the Supreme Court in a word said, nope, that the statute doesn’t impose a statutory duty of preservation and legislature knows how to do that. It’s done it in other statutes and the absence of it here means the Supreme Court wasn’t gonna invent a new one. Yeah.

Tim Kowal
Hmm. That strikes me as surprising. If there is a provision for claiming an exemption and there’s also a path for reviewability of the exemption, then that would suggest that there should be a corresponding duty to preserve pending the judicial review of the exemption claim. Otherwise, it deprives the reviewability of the exemption claim. You might as well just say that, you know, The public agency has to turn over all documents unless they claim exemption or unless they just decide to claim exemption and delete all the documents.

Jeffrey Lewis
Yeah, let me just say, I think it’s independent of pending litigation. The question was, once a public agency just declares documents exempt, regardless of litigation, is there an obligation to produce, or excuse me, preserve these documents? And the Supreme Court said, no, I think the facts might be different if a subset of those documents were actually at issue in litigation. So that was the first issue I wanted to cover. And then I’ve got two short ones. You know, we deal with high-minded, very serious topics on this podcast. I did want to give a plug to my new favorite podcast, which is a little less serious, a little less high-minded. A colleague of mine has put out a history podcast called the Ebs of History, him and his two kids. And it pulls out interesting, obscure moments from history and dissects them. if you’re, it’s like the Atlas Obscura of history. podcast. So if you’re looking for a new podcast, I can highly recommend The Ebs of History.

Tim Kowal
The ebbs of history. Yeah. The little tidbits of history, the little arcana are the most fun parts of history that make it come alive.

Jeffrey Lewis
Yeah, the inaugural episode is about a pope who put another pope on trial even though the other pope was dead. They pulled a skeleton out of the ground, dressed him up, and put him on trial. Who knew?

Tim Kowal
Mm. I think I had heard about the dead pope being put on trial. I hadn’t heard about the dead pope being exhumed.

Jeffrey Lewis
He was dug up. Yeah, so and then the third, you know, just to bring it back home to the epic Apple case, if we get five new five star ratings on Apple podcasts for our podcast, I think Tim would agree to come on Fortnite and play around a fortnight. Well put it up on YouTube. He can go against my tart tartan character and tart titan character. Well play a little fortnight there. So get those positive reviews and Apple podcasts.

Tim Kowal
Yeah, who am I to say no to listener demand?

Jeffrey Lewis
That’s all I got for you, Tim.

Tim Kowal
Okay. All right. Well, that’ll wrap up this episode. If you have suggestions for future episodes, guests or topics, please email us at infoCalPodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeffrey Lewis
See you next time.