Jeffrey Lewis: Welcome, everyone. I am Jeff Lewis.

Tim Kowal: And I'm Tim Kowal. We've got some good new civil procedure cases we wanted to cover today. Many of them are on the theme of gamesmanship: what do courts do when lawyers play procedural rules for advantage? Sometimes the court blesses it, sometimes it punishes it, and sometimes it shrugs. So we're gonna cover the California Supreme Court decision in Doe versus Marysville Joint Unified School District. That's another case in the vein of voluntary dismissals. We talked about that in the Maniago case, which actually came out, I think, two weeks after the Marysville case. So we're gonna talk about that. It holds that the Federal Rule of Civil Procedure 41 two-dismissal rule in federal court (if you dismiss your claim twice, even if it says without prejudice, it's deemed to be with prejudice) doesn't apply in state court, says the California Supreme Court. Then we have a new five-year rule case. Those cases kick around. Everyone gets worried when their case gets old, and they worry about whether it's gonna be coming up against the five-year rule. And there's that—

Jeffrey Lewis: It's super, super easy to understand when the five years starts, when the five years ends. Clear as, absolutely clear. We don't need another case on that, do we, Tim?

Tim Kowal: Clear as a bell, yeah. Although the very arcane and confusing way of how to count to the five years is not really covered in Wilson versus Johnson. Instead, it governs the ritual, or as the Supreme Court once called it, the charade that the court can go through to get around the five-year rule. And so we're gonna talk about what a court needs to do to properly execute that charade. And then in Chin versus DoorDash, an employee who held a harassment claim in his back pocket while he fought arbitration learned that he had waited too long to use the federal escape hatch. He had a federal statute that allowed him to get out of arbitration, but he held that in his back pocket a little too long and was found to have waived it. But Justice Wiley has a good dissent that, frankly, I'm persuaded by, and I'm interested to get your take on it, Jeff. So let's start with—we gotta start at the top. We gotta start with the California Supreme Court decision in Doe versus Marysville. That was a few months ago, in July. We were, I think, in the summer doldrums, Jeff, so we didn't cover that one. It's now October, and we're finally getting to Doe versus Marysville Joint Unified School District. That's the one that covers the two-dismissal rule under Federal Rule of Civil Procedure 41. The subdivision is Rule 41(a)(1)(B); that's the subdivision that bars a third filing. But the outcome in Doe versus Marysville is that it only bars that third filing in federal court. It's not a rule of claim preclusion. So what happened in that case is that seven former students sued their old elementary school district, alleging that a school counselor had sexually abused them in the '90s, but they filed and withdrew several serial lawsuits to get there. Well, three total. They first filed in state court in 2020, and the school district filed demurrers. They were partially sustained, but then the students voluntarily dismissed. Okay, so that's dismissal number one. Then they refiled the same day in federal court, adding some federal claims. In the district court, the school district moved to dismiss, arguing that the district was an arm of the state and thus immune from suit in federal court. That's one of those unusual theories in the Ninth Circuit. Anyway, about two weeks before that hearing, the plaintiffs dismissed again. So that's dismissal number two. And then they went back to state court, but now only with their state law claims. Okay, so they filed in state court and dismissed voluntarily without prejudice. Same thing in federal court: dismissed voluntarily without prejudice. And now they're back in state court, and the school district raises the bar under Rule 41 of the Federal Rules of Civil Procedure: if you've already dismissed a case once, then the second voluntary dismissal, quote, "operates as an adjudication on the merits." Okay, that's the language under Rule 41. The school district argued that meant the plaintiffs were out of every courthouse, both state and federal, and the trial court agreed. A divided Court of Appeal affirmed. Okay, so this goes up to the state Supreme Court, and the state Supreme Court follows the United States Supreme Court decision in Semtek. Justice Evans, for the California Supreme Court, wrote that the two-dismissal rule is a federal procedural rule. It bars you from filing a third time in federal court, but it's not a rule of claim preclusion; it doesn't bar state claims in state court. And because a voluntary dismissal decides nothing about the merits, ordinary res judicata didn't bar the third suit either. And Jeff, at first, when I read this decision, I don't know that I agreed. I looked at that language from Rule 41, which says that the second dismissal, quote, "operates as an adjudication on the merits." And I thought, well, it's an adjudication on the merits. That's the same thing as if they had filed a dismissal with prejudice. And if it's filed with prejudice, then the claims are gone in that court and in every other court.

Jeffrey Lewis: Does that mean a dismissal with prejudice itself would not be deemed—or what kind of effect would it be given in state court? I just don't know. This is not my area of expertise.

Tim Kowal: What satisfied it in my mind was parsing those words literally. The language of Rule 41 says it "operates as" an adjudication on the merits. It might be a different rule if it said it's "deemed" an adjudication on the merits, or it "is" an adjudication on the merits, because then maybe you could make the argument: okay, well, if you, plaintiff, bring your claims into federal court, you're consenting to the rules of that jurisdiction. And so when you file a dismissal in the venue you've chosen, the rules of that venue say that dismissal is on the merits, or is with prejudice. So it doesn't matter if you say it's without prejudice, because you subjected yourself to a rule that says it is with prejudice. So that's the way it makes sense in my mind: Rule 41 only says it "operates as." It doesn't say what it is. It's not an ontological rule. It doesn't say what the thing is; it only says how we're going to treat it here in federal court land. Over there in state court land, it might operate as something else. Maybe it'll operate as a dismissal without prejudice. And there had been a division among the courts of appeal. Another court, I think it was Gray, had followed Semtek, but the Court of Appeal here in Doe versus Marysville had started to follow Semtek, didn't follow it to its conclusion, and did hold that it was a claim preclusion issue. And so the California Supreme Court stepped in promptly and resolved that split.

Jeffrey Lewis: Well, I can't imagine the situation comes up a whole lot, but I'll tell you what drew my eye to this decision: the caption. You have Does in your case. You have John Doe No. 1, John Doe No. 2, or just Doe No. 1, Doe No. 2. I don't know why—maybe it's because it spent some time in federal court, or maybe because they were minors and they're trying to hide their identities—but not so much here. It is John, and then initials, and then Doe. And there were different sets of initials for each of the plaintiffs: John HR Doe, John JL Doe. It was a very unusual way of naming John Does that I hadn't seen before. Maybe it's a federal practice. The other thing that caught my eye is in writing headings. I know lots of lawyers struggle with this, and I guess the justices on the California Supreme Court do too. Using the word "does" in a heading invites ambiguity. So on page 21, heading C, the heading is "Does' Federal Dismissal Does Not Have Claim Preclusive Effect." And when you read that, you gotta read it a few times. "Does' federal dismissal does." You gotta parse it in your brain. What is "does"? Yeah.

Tim Kowal: Is it "does" or "Does"? Yeah, that may be an instance where that convention, sometimes used more in trial courts, of putting party names in all caps might serve a useful purpose.

Jeffrey Lewis: Could have said "the federal dismissal," could have said "plaintiffs' dismissal," could have said a million things, but choosing "Does'" invites hard-to-readness. I hope I don't get a law clerk fired, but that's my view.

Tim Kowal: Yeah. I wanted to do one tie-in with the Maniago case that we talked about on the podcast a while back, a couple of times: Maniago versus Desert Cardiology Consultants Medical Group. That was also in July, just a couple of weeks after the Marysville decision came down. And that case also involved a voluntary dismissal of an action, but it was with prejudice in that case. The wrinkle is that it was with prejudice, but also filed under cover of another notice saying that the dismissal was for the purpose of expediting the appeal. So arguably that dismissal with prejudice had the proviso, "I'm not dismissing my appeal rights, because I'm only filing this dismissal to get to the appeal." What I found interesting about putting Marysville and Maniago side by side is that, on the surface, the difference is that one's with prejudice and one's without prejudice. The Maniagos dismissed with prejudice; the Marysville plaintiffs dismissed without prejudice, and the only question there was whether Rule 41 converted that without-prejudice dismissal into a with-prejudice adjudication on the merits. And the court said no. But the court did something a little different in Maniago. The Maniagos filed that declaration saying they were dismissing solely to expedite the appeal, but the court still construed it as dismissing everything, even appellate rights. And I thought, in Marysville, it might have been easy to imagine the case coming out the same as in Maniago, with the upshot being: look, if you litigate in federal court and you dismiss twice, then you're governed by the rules of that federal court, and the second dismissal is construed as consent to the rule in that forum that says the second dismissal is with prejudice. But the court took an approach that saved the case in Marysville and did not take an approach that saved the case in Maniago.

Jeffrey Lewis: Yeah.

Tim Kowal: At any rate, the thread that connects the two cases is that the plaintiff's own choice controls. If you elect without prejudice, then a federal rule can't convert that to with prejudice. And if you elect to dismiss with prejudice, then your stated reasons behind that dismissal, filed in a separate document, can't undo it. The court will take you at your word within the four corners of the dismissal document.

Jeffrey Lewis: Yeah, interesting. And whenever there's a malicious prosecution case, you're always worried about, or looking at, whether the termination was on the merits or not. I wonder if this case will have malicious prosecution implications, in terms of two dismissals in federal court and one side or the other arguing whether or not it's a favorable termination that can support a malicious prosecution action. I guess the Supreme Court gave past plaintiffs, and future defendants in malicious prosecution cases, a little more cover.

Tim Kowal: Hmm. Yeah.

Jeffrey Lewis: Who knows?

Tim Kowal: Yeah. I wonder if it could be construed a different way if it's filed in federal court. That dismissal "operates as an adjudication on the merits." So would that be an adjudication on the merits for purposes of a malicious prosecution claim? If—

Jeffrey Lewis: I have no doubt that with a malicious prosecution claim filed in federal court, a judge looking at that would find it's on the merits. Absolutely, a hundred percent. Yeah.

Tim Kowal: Hmm. Okay, we'll keep that in your back pocket.

Jeffrey Lewis: Yeah.

Tim Kowal: Okay, let's go on to our next case, Wilson versus Johnson. This is a Second District Court of Appeal decision from late September 2026. This is the one about the five-year rule. The upshot is about when the action is "brought to trial" for purposes of the five-year rule. You have to get your case to trial, okay? But then the lawyerly definition problem is: what does it mean to bring it to trial? What does commencement of trial mean? When do I get over the finish line? And in Wilson v. Johnson, the rule is that when the prospective jurors are sworn under section 232(a), that gets you past your deadline.

Jeffrey Lewis: Sworn only. Not even asked a single question, just sworn.

Tim Kowal: Not even asked a single question. So what happened in this case is that the litigants were facing something like a 42-day trial. So the court had to interview these prospective jurors for hardship, to make sure they could all attend a 42-day-long trial. And when you factor in dark days and weekends and everything, we're talking about, what, two months or more? So that's a long trial, and it did take a long time to do the hardship interviews of those prospective jurors. And while that hardship review was still pending, the five-year deadline lapsed. So it crossed over the line past the five years, the defendant made the motion, and the trial court granted it and said, okay, well, we don't have a jury yet. And I think the rule is, what is it, what did I just say, 232(b) is when you actually have a jury impaneled, and they take their juror oath. So the court dismissed on that basis. And the Court of Appeal says no, the trial begins the moment those prospective jurors say "I do" to start the hardship review. Jeff, have you ever had a case that came up against the five-year rule, where you had to litigate that issue?

Jeffrey Lewis: Only in the context of COVID, doing math about whether you get the extra six months for the COVID emergency orders. But no, not other than that.

Tim Kowal: Yeah, I've had a couple of them. And you mentioned at the top that the major difficulty is counting to the five years. Have there been interlocutory appeals that stay the running of the five years? Obviously, you get the six months of extra COVID time. And if there are court continuances issued because of the unavailability of courtrooms, those often will be counted. But what if it was consensual? What if the parties consented to a continuance? That probably doesn't toll the statute. So those can be difficult. But the starting place for this whole analysis is what commences trial, and my problem with it is this: once you determine that the trial has commenced, what the cases have allowed is that the court can then just declare a mistrial. If there actually isn't a courtroom available, for example, but the court doesn't want the case to be dismissed because of the five-year rule, it can just impanel a jury, have the jury take the oath, declare a mistrial, and send everyone home, and then the five-year rule doesn't operate anymore. You have three additional years to actually bring the case to trial.

Jeffrey Lewis: You've seen that happen in the wild?

Tim Kowal: That I have seen happen in the wild.

Jeffrey Lewis: Wow.

Tim Kowal: And that's a charade. And—

Jeffrey Lewis: Yeah.

Tim Kowal: That's not just my editorializing; that's how the Supreme Court of California described it in the 1982 case of Hartman versus Santamarina. It said that from time immemorial, charades and fictions have played a vital role in helping courts get over, around, and under legal roadblocks they were not quite ready to assault head-on. And it was describing a procedure very much like this. In jury trials, it's impaneling the jury and getting them sworn. In bench trials, it's typically having the first witness sworn. That becomes the moment, under this judicial gloss. It's not defined by statute anywhere; the statute only says "commencement of trial." So it's courts that have come up with these charades, as the Supreme Court has called them, to determine what the commencement of trial is. And I think it could be said that this turns the whole five-year statute into a formality, because, again, you just swear that panel in and the clock no longer matters. The opinion in this case doesn't actually engage with that critique. Another case, Hilliard, expresses the policy lens, and it's worried about the opposite problem. That's why the courts have allowed, or invented, this charade for litigants to use, because, as Hilliard says, a contrary result would invite an unscrupulous party to delay or prolong voir dire examination of prospective jurors until the five-year period expires. That would apply in this case if the defendant were sitting around thinking, okay, well, we haven't had the 232(b) swearing-in yet, so I can just bide my time and make sure to ask a lot of questions of these prospective jurors, so we never get there before the five-year period has lapsed. You have to be awful—

Jeffrey Lewis: Yeah.

Tim Kowal: —close to the end of the five-year period, of course. You're not going to be doing this—

Jeffrey Lewis: Yeah, of course.

Tim Kowal: —for weeks and months. But of course, that's the opposite of the problem the statute is concerned with. It's not concerned about defendants invoking the five-year rule. It's worried about plaintiffs who are not diligent in bringing their cases to trial. Anyway, the upshot in this case is that section 232 has two oaths: subdivision (a) for the jury panel before voir dire, and subdivision (b) for the trial jurors once selection is complete. And there's another case, Stueve, S-T-U-E-V-E. That's the case where the trial court thought the subdivision (b) oath was determinative. But the Court of Appeal in Stueve, and now in Wilson, says the subdivision (a) oath is enough. And even though the Legislature rewrote both oaths, just recently, in January of this year, 2026, both oaths and the structure remain intact. Footnotes two and six quote the old and new text and treat the changes as non-substantive. Any other comments on this one, Jeff?

Jeffrey Lewis: No, I don't.

Tim Kowal: I actually did have one other question I wanted to ask you. Since this rule about when trial commences is not set by statute, and is instead set by courts, why didn't the courts make this easier? Why didn't the courts just say trial commences when the trial judge says it commences? And if it—

Jeffrey Lewis: Yeah.

Tim Kowal: If that's it, why not motions in limine? "Okay, we're hearing motions in limine. Trial has hereby commenced."

Jeffrey Lewis: Yeah, or the day you come in with the twenty boxes of trial binders. For me, that's when trial begins.

Tim Kowal: Yeah. Yeah. "Can I leave all this crap here? Because trial has begun." The doctrinal root apparently runs back to an 1889 case, Silcox versus Lang, a Supreme Court case from the 19th century. It says the impaneling of a jury is a part of the trial within the meaning of the Code of Civil Procedure. That case involved a new trial motion granted for an irregularity in the proceedings, and it talked about the impaneling of the jury. So I guess the implication is that if an irregularity during the impaneling of the jury is grounds for a new trial motion, then the impaneling of the jury is part of the trial. But my point is, I'm not disputing that the impaneling of the jury is part of the trial. I'm asking why the commencement of trial doesn't happen even earlier than that. Again—

Jeffrey Lewis: Yeah.

Tim Kowal: —and by the same token, let's say a motion in limine is heard and decided, maybe even a few weeks before the trial is actually going to start. Because that would be the rebuttal: you can't set it as early as motions in limine, because there's no natural connection between the motions in limine and the actual start of impaneling juries and calling witnesses. They could be days or even weeks before all that actually happens. But if there is an exclusion of evidence, especially a categorical or very material exclusion of evidence, in a motion in limine ruling, wouldn't that also be grounds for a new trial motion for error of law or irregularity in the proceedings? I would think so. And going back to that doctrinal root in Silcox v. Lang, if it could be grounds for a new trial motion, then it's part of the trial. I haven't gone to look it up, but I would be very shocked if there were no cases treating a motion in limine order as grounds for a motion for new trial.

Jeffrey Lewis: Yeah, for sure.

Tim Kowal: So that would be my pitch: just make the hearing on the motions in limine the commencement of trial.

Jeffrey Lewis: Yeah, although if you want uniformity and predictability, every judge handles motions in limine differently. Some will do it at the final status conference, some will do it when you announce ready, and some will wait until the very last minute to rule, or maybe argue it in the middle of jury selection, if you have a free afternoon. If you're trying to figure out the math of when trial starts, and it's squishy based on which judge you might randomly get assigned to when you show up ready for trial, I could see an argument going the other way.

Tim Kowal: Yeah, I think the argument going the other way would be that when the Supreme Court invented this charade—and I'm using the word respectfully; I'm using the Supreme Court's own word—

Jeffrey Lewis: I don't hear respect in your voice.

Tim Kowal: Well, it's a ritual. Whatever it is, it's an act, a meaningful act. You have to bring in either the jurors or a witness. You're bringing in, basically, strangers. You're involving other people now, so the rubber is hitting the road. But then the rebuttal to that rebuttal would be: yeah, and if it's a charade, then you're imposing all this burden on these poor prospective jurors and/or witnesses to come in as if we're gonna start trial, but nah, we're not really gonna start trial.

Jeffrey Lewis: Hey, hang on. Are you telling me jurors who think they're gonna be in for a long trial are brought in, sworn in, and then there's a mistrial and they're dismissed? You think those jurors have been abused and would have complaints about their treatment?

Tim Kowal: Well, you've managed their expectations, because they've been told, "You're gonna have to find daycare for your kids for the next two months." And then they're told, "Actually, never mind, you can go home, it's all off." They were ready for a travesty, and so they're—

Jeffrey Lewis: Yeah.

Tim Kowal: —they're happy now. Maybe on their way home they'll be thinking, "What did they put me through?" Okay, let's go on to the third case we wanted to cover today on the theme of gamesmanship: Chin versus DoorDash, another Second District Court of Appeal case, from just a week ago, October 5, 2026. This one involves arbitration waiver. The setup is that Andrew Chin worked at DoorDash. He took parental leave, and when he came back, he claims a lesser job was waiting for him. Then he was fired at the end of the year. In early 2024, just a couple of months later, he sued for leave retaliation and wrongful termination, but he did not include a sexual harassment claim, which he did have and arguably intended to raise. We'll get to the strategic question. DoorDash moved to compel arbitration, and Chin's only argument at that time was that he never agreed to arbitrate. He just made the traditional opposition to arbitration. He never mentioned that there's a federal law that lets harassment plaintiffs choose court over arbitration: the Ending Forced Arbitration Act, the EFAA. And at the hearing, after the judge announced a tentative ruling going against Chin, Chin's lawyer said that if the case did go to arbitration, Chin would be adding a harassment claim, quote, "to avoid arbitration under federal law." So at that time, it was certainly lurking in the back of their minds, or the front of their minds, that they had this harassment claim and that it had the strategic effect of getting them out of the arbitral forum. And Chin later told the Court of Appeal that he had left out the harassment claim for strategic purposes, though the opinion, interestingly, never explains what holding that claim back got him. What was the strategy? It might have been a choice.

Jeffrey Lewis: Yeah. Spoiler alert. Spoiler alert: not much. But go ahead.

Tim Kowal: Yeah. And then it was nearly a year after the order compelling arbitration that Chin filed his second lawsuit, this time invoking the EFAA with a sexual harassment claim, which was the arbitration killer. The trial court said it was, quote, "not happy with the way this thing had gone" and, quote, "did not like its ruling." But the court granted Chin's motions to consolidate and to invalidate the arbitration agreement as to all claims in both cases, denied DoorDash's motion to compel in the second suit, and never addressed DoorDash's theory that Chin's pre-arbitration conduct waived the EFAA, the Ending Forced Arbitration Act. DoorDash appealed under CCP 1294. The majority reversed all three orders, directed the trial court to grant DoorDash's motion to compel, and awarded DoorDash its costs. Now, the waiver reasoning in the majority opinion, Jeff, you can probably figure out. He strategically withheld the claim, or delayed bringing it. The majority found waiver by clear and convincing evidence, on de novo review. It held that the EFAA election is waivable like any other right; there's nothing special or non-waivable about it. And strategic decisions count as waiver, whether or not they were good strategy to begin with. Deliberately and strategically bypassing a procedure is waiver. And it adds California's arbitration-specific rule from Moncharsh versus Heily & Blase, the 1992 case, that grounds to oppose arbitration must be raised in court before arbitration begins. So, any comments on that so far, Jeff, before I get to Justice Wiley's dissent?

Jeffrey Lewis: Lots of comments about the dissent.

Tim Kowal: All right, let's get into it. Acting Presiding Justice Wiley accepts that Chin was tardy in bringing his EFAA claim. He also acknowledges that the detour cost real money and that the trial court could sanction Chin's counsel by shifting the wasted fees. But the dissent insists that the conduct still is not waiver in the definitional sense, because waiver means the intentional relinquishment of a known right. Okay, and Chin's single-minded goal was to stay out of arbitration. No one disputes that he never intended to waive arbitration. So it couldn't be an intentional relinquishment, because that wasn't the result he intended. So Justice Wiley concludes that, lamentable though it was, Chin's course of action was not a waiver. Quote: "Chin's whole goal was to get out of arbitration and to litigate in court. That purpose is the opposite of a waiver," end quote. So I have some thoughts about that, Jeff. Do you?

Jeffrey Lewis: Yeah. Well, first of all, you gotta read this dissent as an affirmation by the dissenting justice that this is a new, important federal law, one that curtails the scope of arbitration in an important way. And because it's new and hasn't been tested yet, this was not a good case. That's how I read the dissent: this is not a good case for deciding under what circumstances waiver occurs. And I think what he's also saying is, maybe it was strategic, maybe it was a blunder. Hard to tell. Given the murkiness of why he waited so long and prosecuted the case the way he did, this is not a great way to make new law on the interaction of the waiver doctrine and this federal law that invalidates the enforceability of arbitration clauses. Super interesting. I love how short and succinct this dissent is.

Tim Kowal: Well, do you think that instead of writing a dissent, Justice Wiley should have just urged his colleagues not to publish the decision?

Jeffrey Lewis: Well, or maybe he was signaling with the dissent, "Hey, Supremes, take this up. It's important." As a way of seeking review of his colleagues' majority decision.

Tim Kowal: Yeah. Well, I agree the dissent is worth reading. Again, he doesn't defend what the plaintiff did here. He calls it lamentable, and even suggests that counsel may be sanctioned for the fees it wasted. But it's not waiver. And I tend to agree with him on the definition. I think I've said on this podcast, and I've certainly said it to other people, that I don't know when to use the term "waiver" or "forfeiture," because they're so often used casually or interchangeably, including in Court of Appeal decisions. But after reading this case and Justice Wiley's dissent, I now have a better view of what it is. Again, he says waiver, classically, is purposely relinquishing a known right. And Chin never wanted to give anything up. His whole goal was to get out of arbitration and into court. And as Justice Wiley puts it, and Jeff, as you just mentioned, it looks more like a blunder, but a blunder is not a purposeful relinquishment of a known right. And I think that's right. Justice Wiley's right, in a way, that's a problem, because waiver doctrine has been sloppily applied for a long time and in a lot of contexts. But picture an employer that happily litigates for many months, or a year, in regular court, takes discovery it wouldn't be able to get in arbitration, and then moves to compel arbitration when things start going badly, or when it has gotten all the discovery it needs in regular court. If waiver means only what Justice Wiley says it means, then that employer hasn't waived arbitration either, as long as it was candid from the start that it wanted to keep arbitration in its back pocket. Its goal was never to give up arbitration; it was just to have the best of both worlds. So Justice Wiley's dissent may license what might be called candid gamesmanship. You can play both sides, as long as you're open about it: "Hey, I don't intend to give up the arbitral forum. I just wanna play in the Superior Court sandbox for a while. It's got a lot of great tools I can use to aid my case. And then, when I'm ready, I'll kick over to arbitration."

Jeffrey Lewis: Well, I tend to agree with you, but I think if the majority were on this Zoom, they would use a different definition of waiver than the one Justice Wiley came up with here. Instead of the intentional relinquishment of a known right, maybe the majority would look to the lots of cases that talk about waiver as conduct inconsistent with the maintenance of a right. And if you think about this guy, who went to arbitration, played around in arbitration for a while, and went back to superior court and filed a second lawsuit, then with a different definition of waiver in mind, and given what occurred in the arbitration, I could see the majority's view that waiver trumps Congress's intent in enacting this law. I don't know. It's a close one.

Tim Kowal: Well, you just said legislative intent. But waiver is about the litigant's intent. It's not about public policy or the legislature's—

Jeffrey Lewis: Yeah. Yeah.

Tim Kowal: —intent. And wanting the benefits of both forums isn't a purposeful relinquishment of anything. Any rational litigant would wanna—

Jeffrey Lewis: But—

Tim Kowal: —have their cake and eat it too.

Jeffrey Lewis: Consistent?

Tim Kowal: Well, inconsistent how? Inconsistent with the policy behind arbitration, yes. But inconsistent with the litigant's—

Jeffrey Lewis: Mm.

Tim Kowal: —strategic interests at stake? When courts find waiver in that situation, they aren't finding that the party intended to give up arbitration. It's like if you came back to your table at a buffet and an attendant said, "Sir, you may not have the chicken and the beef." You'd say, "It doesn't say that anywhere." And the attendant would say, "Well, taking the chicken is an intentional relinquishment of your known right to the beef." And you'd rightly retort, "No, it's not, and I can establish that by directing you to my plate. I took both. That evinces my intent to have both chicken and beef. One's not inconsistent with the other." Now, the restaurant would say, "Taking the chicken and the beef is against our policy of making money."

Jeffrey Lewis: Yeah.

Tim Kowal: And they would be right about—

Jeffrey Lewis: Yes.

Tim Kowal: —that. But that's not a waiver of the patron's right to take chicken and beef.

Jeffrey Lewis: Okay. All right, you win this one.

Tim Kowal: My chicken-and-beef analogy got you. So, okay.

Jeffrey Lewis: Yeah. Do you want to talk about one more case, or do you want to move to peremptory challenges?

Tim Kowal: I've got two other ones, and we could probably kick those off to another Cases and Tidbits episode.

Jeffrey Lewis: Yeah. Okay. Well, I think I'm gonna start with the new LA County form rather than talk about the two general orders. The big picture is peremptory challenges, and the California Supreme Court saying, yeah, blanket use of peremptory challenges to basically nullify certain judicial officers you don't like is a bad thing. So we wanna give the superior courts tools to rebalance the scales, let judicial officers reclaim their ability to manage their own courtrooms and caseloads, and take a bit of power away from litigants in terms of blanket peremptories. And so LA Superior Court issued a general order and an amendment. The last one came in today, and it does two things. First, there's a new form. If you're going to trial in LA Superior Court, there's a new peremptory challenge form you want to take with you on the first day of trial. And it looks totally different from the old form. It's got a declaration. You put in the name of the judge, and then you have to affirm. You check a box saying that you have not, either as the party or as the lawyer representing the party, filed more than two challenges against this judge within the past year. If that's true, you just check the box and sign it, and it acts like a normal peremptory challenge. But if your client or you have challenged this judge more than two times in the last year, then you've got to check another box, and then you've got to write out all the times. It's a huge box. You've got to list all the times you've challenged this judge, all the cases. And that could be a big hassle, especially if you're at a big firm, or you've got a lot of partners, or it's a multi-state practice who knows? And you're in the middle of getting ready for trial, and you just got assigned to a new judge. Who's got time for that? So the LA Superior Court said, Aha, I've got a solution to your problem. They now have a portal, which is free, Tim. We had some pre-recording banter about that, but it's free for lawyers. After you log in, there's a little box where you can search your name or your law firm's name, and it will produce a quick table of the number of challenges and who you've challenged, which judge. And instead of taking a pen and listing by hand all the times you've challenged this judge before, you can just say, "I'll go with whatever's in the database in the portal," check that box, and sign it. So it's a totally new process. It's probably not gonna impact small-firm lawyers who don't do a lot of these challenges. But if you're in a 50-, 100-, or 250-attorney office, and you're in trial in LA Superior Court, and you get assigned to a new judge, and you file a peremptory challenge, you're gonna want to have this new form in hand. Maybe we'll give it to William to put in the show notes. And you're also gonna wanna have access to this portal, so you can do a quick search and make sure you know what you're getting into when you file a peremptory. Let's say your firm has done a hundred prior that year.

Tim Kowal: Yeah. Yeah. And if you don't do peremptories often, the rule only kicks in if you've done, what is it, more than two in the past year? I assume it's a rolling twelve-month period against a particular judge.

Jeffrey Lewis: Yeah. Yeah. Either the party or the lawyer. And so if you have not filed more than two in the preceding year, then you're exempt, and you don't have to make any kind of disclosure. But if you have, or your client has, then you've got to make this disclosure, either by writing out all the times you've done it, case name, case number, et cetera, or by clicking a box saying, "You got me. Just go with whatever's in your database."

Tim Kowal: Yeah. Yeah, I'm guessing larger firms are going to have their own version of this database, but for solos and smaller firms that don't maintain one, it's gonna be a useful tool for looking this up. And I would guess that if you've got a new attorney who's come onto your firm, their baggage, their 170.6 baggage, comes with them. So you might want to be checking that portal just to see if any of your new hires—

Jeffrey Lewis: Interesting. You mean like imputed disqualification—

Tim Kowal: —brought one of them.

Jeffrey Lewis: —rules for conflicts of interest? Do you think your peremptory history follows you around? Interesting.

Tim Kowal: Yeah. Well, yeah, what does it say? The declaration or attestation must include the name and case number of every case in which the party and/or attorney (law firm) made—

Jeffrey Lewis: Yeah.

Tim Kowal: —a 170.6 challenge. So yeah, I'm gonna guess that the 170.6 challenges of all your new hires are imputed to your law firm.

Jeffrey Lewis: Yeah, interesting. Interesting. That's all I have on that amended order. Just, yeah, if you're going to trial, have this form in hand.

Tim Kowal: Okay. All right. Well, just by way of a teaser, in a future episode coming up soon, we're gonna talk about Luna versus Top Dog Entertainment, which involves whether a Jane Doe caption requires an order, or whether you have to have a motion to seal pending before you can get rights of anonymity. And we'll cover Martinez versus Contreras. I'm kind of excited to talk with you about this one. It involves a new trial that was granted because of juror misconduct. So we'll unpack that one a bit more next time.

Jeffrey Lewis: Yeah. So I think that wraps us up.

Tim Kowal: Yeah. If you've got questions, or if you've got tips or recommendations for cases, topics, and guests to bring onto the podcast, please email us at info@calpodcast.com.

Jeffrey Lewis: See you next time.