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

Tim Kowal: And I'm Tim Kowal. Jeff, we've got a few cases and tidbits today. And right off the bat, we have a Jeff Lewis case and tidbit. You had a big appellate win against the City of Palos Verdes, where you live and work, actually. So I wanted to pass it right over to you at the top. Can you cover what that win was?

Jeff Lewis: Yeah, you bet. This was in front of Division Four of the Second District. And it's one of those rare instances—maybe this has happened three or four times in my career, very rare—where I walk in as the appellant, and the court issues an oral tentative in my favor and basically tells me to sit down. The case involved my client, Wei Shi, who wanted to build an ADU, an accessory dwelling unit, in his backyard. Under recent changes to the law from Sacramento, cities have to ministerially approve these kinds of applications, meaning they've got 60 days, yes or no, objective criteria. You don't put it in front of the planning commission; you don't put it before city council. It either meets the definition of an ADU in terms of square footage, or it doesn't. And my client actually had to wait three years for the City of Palos Verdes Estates to approve the ADU. Instead of 60 days, it was three years. They made him do some redesigns, and they had a CUP, a conditional use permit, and a variance—all these crazy obstacles. So we brought a lawsuit against the city for damages. There's a statute in the Government Code that says if a government entity breaches a ministerial duty, it could be liable for damages, if we can prove proximate cause and all that. So we sued under that theory. Demurrer sustained, case tossed.

We go up on appeal, and in the Second District, Division Four, the oral tentative starts with: we have no trouble seeing that this is not only a ministerial duty, but that homeowners like Mr. Shi are the people that were intended to be protected by such a law, in terms of saving them from the delays and expense of ADU approvals. So they certified the case for publication. I imagine the city will ask for review in the California Supreme Court. But the big holding was: when California passed laws to make it easier to get ADUs built in your backyard or wherever, if a city breaches that ministerial duty by delaying approval or imposing obstacles in the way of the approval, then a city could be held liable for any damages proximately caused by the breach of that duty.

Tim Kowal: Now, because it's a ministerial act, presumably this is just some clerk who is denying it, but the clerk can't be driving the bus here. This policy had to be directed from the top somewhere. So is there a declaratory relief aspect to this lawsuit?

Jeff Lewis: Well, I imagine some people bringing this kind of case would seek declaratory relief, or even petition for a writ of mandate seeking injunctive relief. We actually brought the lawsuit long after the ADU was approved and built. This is merely an action for damages after the fact. But I could see other people—

Tim Kowal: The plans and permitting and all the expenses that were downstream of the denial of the ministerial approval.

Jeff Lewis: Right, yeah. And before we hit record, you had asked me, "Jeff, that's the city you live in, that's the city you served on the planning commission. Any awkwardness?" And let me say, there are four cities on the hill. I live in the City of Rancho Palos Verdes, which is a very well-run, great city. I've rarely had the occasion to sue that city. Our neighboring city is a troubled city. It's Palos Verdes Estates. They have trouble figuring things out and are the frequent target of lawsuits. You might remember a few years back I talked about my big parkland case for selling a public park; that was the City of Palos Verdes Estates.

Tim Kowal: It's kind of like the troubled stepbrother. Is that the nature of the relationship?

Jeff Lewis: Yeah. If you know anyone who's thinking about moving onto the peninsula, you want to move into RPV, not Palos Verdes Estates. But let me just say, this case goes a little broader than ADUs. Anybody with a real estate project looking to take advantage of expedited rules like the ones Sacramento has passed could look to this decision as a real threat to make to cities that don't act quickly on applications.

Tim Kowal: Yeah, I could see that. And this opinion was certified for publication, although the way you describe it makes it seem fairly straightforward. This is SB 9, right? Is this the ministerial—or am I thinking of the wrong one? Anyway, ADUs need to be ministerially approved. And it seems fairly straightforward. What's the publishworthy aspect of the opinion?

Jeff Lewis: Not sure why they published it, because yeah, it is straightforward. It's not a new rule. The statute's been on the books forever in terms of a government being open to damages if it breaches a ministerial duty. Maybe the justices felt that the public issue of affordable housing was important enough that this should be published to put cities on notice that they could be held liable in the future, and that this case could be cited as precedent.

Tim Kowal: Yeah, maybe it's just as simple as that. If it wasn't clear enough, here is a published decision, just to make doubly sure.

Jeff Lewis: Yeah.

Tim Kowal: All right. Well, the other cases and tidbits I had planned for us to chew on today, Jeff, include two that we had forecasted previously. There's a doxing claim case against a record label, and there's a new trial case involving some juror misconduct. I think both are interesting cases that involve some practical lessons for trial attorneys in our audience. And then we'll talk about an emergency election case. It wasn't involving the midterm elections from last week, but it's an interesting case involving municipal elections and what counts as an emergency election under the Constitution.

But let's jump into this doxing case. This is Luna v. Top Dawg Entertainment, which came out of the Second District, Division Two, last month, October 8, 2026. The elevator pitch on this one is that two women sued a record label as Jane Doe and Jane Roe, but they never asked the judge for permission to stay anonymous. And then when the label put out a press release naming them, they sued the label for doxing. The Court of Appeal held that a plaintiff has no right to anonymity until the court grants anonymity. So the label's accurate statements about who sued the label were protected speech, and the doxing claim was stricken. So the practical lesson in this one, Jeff, was that if you're going to file and seek anonymity, you have to make that motion for anonymity immediately. You can't just refer to yourself anonymously in the complaint and assume that's enough. You actually have to get a court order. The argument is understandable, because they conveyed an intent to remain anonymous by suing anonymously. But that alone isn't going to cut the mustard. You have to actually have at least a motion pending. The opinion wasn't clear whether even just having the motion pending was enough, but presumably that would be, at least during the time it's pending.

Jeff Lewis: Yeah, if you read between the lines, that's basically what they said. If you look at just the headlines or the headnotes of this decision, you might think it's a very broad prong-one anti-SLAPP case and a very broad pro-defendant fair and true report privilege case. But the facts of this case are pretty narrow. The holding is pretty narrow. The court basically said it was just looking at the conduct of using the names. When the cross-defendant here, the label, issued a press release that just disclosed the names, the other side sued for doxing just over that. But that small portion of the case was both protected activity under the anti-SLAPP statute and subject to the fair and true reporting privilege. I'm not sure why this case was published. I didn't see a whole lot of new ground being broken here, but it's an interesting case.

Tim Kowal: Well, there are a couple of quotes I wanted to read that struck me as interesting. The court said it was incumbent on plaintiffs to present their request for anonymity to the trial court as soon as possible. Absent filing such a motion or a statutory basis, they simply had no right to remain anonymous while suing in court. So it's a pretty nice, unequivocal statement about how to maintain your anonymity: it's incumbent on the plaintiffs to present that request as soon as possible. The court goes on to say the fact that they unilaterally chose to use pseudonyms but had not yet requested permission to do so does not alter this fact. And then the court said the critical distinction is that the label did not communicate their identities while such a motion was pending. So the court did make it pretty clear that if the motion's pending, then it's a different outcome, certainly a different analysis. But until that issue is raised in a formal motion, conveying their identities is going to be protected speech, at least as long as the speech is truthful. When you get to the second prong about untruthful speech, then it's a different question.

Another thing I thought was interesting about this case, Jeff, is that we described it at the top as a doxing case, because it circles around the issue of doxing, but the case never actually tells you what doxing is. The court disposed of the section 1708.89 claim on the fair reporting privilege and expressly declined to decide whether the allegations constituted doxing or whether the First Amendment precludes applying the statute. So anyone who is hoping for appellate guidance on the statute's elements will have to keep waiting, because we don't get further explication in this case. Another thing I thought was interesting is that the plaintiffs' own counsel issued a press release about the case before the label had said anything. That tends to change the optics. I'm not sure the outcome would have been different, but that's certainly something that's going to make the panel, or the trial judge for that matter, look at this with a different framing. The court did not rest its holding on that sequence, but it makes the point that a lawsuit run partly through the press invites a reply through the press. So I think the court was probably not inclined to find that the label had done anything wrong by going to the press when the plaintiffs had taken the first shot in the press.

Jeff Lewis: Yeah.

Tim Kowal: So there's subtle strategy that goes into these First Amendment cases. Jeff, that's your bailiwick. Do you have any general principles when it comes to these First Amendment cases and clients asking, "Can we take this to the press and fight it in the court of public opinion?" How does that play into your litigation strategy?

Jeff Lewis: I frequently represent the defendants, not the plaintiffs. And oftentimes there is a question: how much can be said in the public eye that can be protected activity, subject to this absolute privilege, and not the subject of a future additional lawsuit that would make a defendant's life more difficult? And how much would be outside the scope of that privilege, not protected, and not subject to an anti-SLAPP motion? I generally advise most clients to keep their mouths shut until the anti-SLAPP motion is heard and granted.

Tim Kowal: Yeah, that's the safer way to do it. So my takeaway from this, Jeff, is that if you're representing plaintiffs and you're seeking anonymity on behalf of your plaintiffs, you need to file that pseudonym motion simultaneously with the complaint, lodging it conditionally under Rule 2.551, and do not issue any press statements before that motion is on file. Because once the motion is on file, then you've triggered at least preliminary relief.

Jeff Lewis: Let me add: maybe don't issue a press release at all. No lawyer ever got in trouble for not issuing a press release. And there were suggestions of violations of the Rules of Professional Conduct here. The trial court sua sponte made a finding about violations of the Rules of Professional Conduct for trying to litigate this in the press and trying to sway the jury or the potential jury.

Tim Kowal: Well, speaking of juries, unless you have any other comments on this one, Jeff, let's turn to the Martinez case. This is the case where a new trial was granted because of what jurors said during their deliberations. This is a Fifth District case, also from early October. It's a published case. Here's the setup on this one. Martinez sued Contreras for injuries from a March 2021 car accident. There was a stipulation to negligence before trial, and the court directed a verdict on causation. So liability and causation were already established. The only thing this jury trial was going to handle was the amount of damages. In October 2024, the jury came back and awarded only $55,000: $20,000 for past economic damages, no future economic loss, $20,000 for past economic loss, and $15,000 for future economic loss. Martinez thought this was way too paltry and thought a greater amount was merited. So Martinez moved for a new trial on jury misconduct. Martinez and counsel had obtained some juror declarations; they got some of these jurors to talk about what happened in the deliberation room. They also moved on inadequate damages and insufficiency of the evidence, and the trial judge, Kristi Kapetan, granted the motion on misconduct alone and did not reach the other grounds. The motion rested on two one-page juror declarations. And importantly, as we'll find out, there were no counter-declarations offered by the defense.

So here were the two declarations. Juror number 10 said that the jurors "openly and overtly" discussed Contreras's "wealth and socioeconomic status." They worried about how he was going to be able to afford a large judgment. They expressed sympathy for him and talked about service members who had lost limbs and got injured in their line of work and would not receive much, if any, compensation. Now, how service members got involved—I don't think there's any indication that the plight of service members was involved in the trial in any way. This is just a subject the jurors wended their way to during their deliberations. Juror number 10 said that these statements "were all heavily discussed when coming to a final verdict amount in each category of damage items on the verdict form." And "heavily discussed" was the watchword for the opinion here. Next, juror number six said that jurors questioned why Martinez was suing at all rather than an insurance company, and shared juror number 10's ability-to-pay concern. Juror number six also asked whether the outcome would differ if the defendant were Walmart, and the group had answered yes. And juror number six added that he personally wondered why Martinez did not use her insurance for the injuries.

So again, the jury had awarded $55,000, which itself is not remarkable. But because the jurors had talked about whether the defendant could afford a bigger award, why she was not suing an insurance company, and how little injured soldiers got, the trial judge found that those were all inappropriate factors for consideration, threw out the verdict, and ordered a new trial on damages. And there is no requirement of a showing of prejudice, because when jurors break the rules that way, the law presumes that the verdict was tainted.

So Jeff, I always find these kinds of new trial awards based on jury deliberations interesting, because the general rule is that you cannot try to break into the jurors' mental processes. That was one of the pillars the opinion was very careful to navigate around. It even parsed between the different statements. Some of the statements the jurors made in the declarations, the court found, were mental processes. What juror number six or juror number 10 personally believed—that's a mental process, and the court is not going to consider that. But the jurors said that the jurors as a group heavily discussed certain things and repeatedly came back to these subjects, especially insurance: why not just sue insurance, or why not just seek recovery from insurance? That's a big no-no. And the opinion also discussed specifically what jury instructions the jurors had violated in discussing those things. So the key passage that I had pulled out, Jeff, is this from the opinion: "That these statements may reflect juror mental processes does not make them inadmissible because the very act of discussing these matters 'heavily' as the jury was deciding the amount of the damages award against Contreras and in favor of Martinez violates CACI No. 117's prohibition against considering the wealth or poverty of a party in rendering a verdict." So the court was focused on two things. First, the extent to which the jurors were focused on these issues—"heavily" was the watchword. A statement made in passing here or there probably would not have moved the needle, but they talked heavily about these things. Second, the statements were tethered to a specific CACI instruction that had been read, and that indicates an inappropriate factor for consideration by the jury.

Jeff Lewis: I found this case really interesting. I wasn't aware of this exception on the admissibility of juror declarations: to the extent a statement made by a juror in the jury room, in and of itself—the mere making of the statement—constitutes misconduct, the juror's statement is admissible on a motion for new trial based on jury misconduct. Super interesting. The other point from the opinion is that you don't have to get corroboration from all the other jurors as to what one juror said. One juror's declaration is enough to establish that a fact of misconduct occurred in the jury room. You don't need corroboration. And if there's no counter-affidavit, that fact is deemed established for purposes of any motion for new trial on the basis of jury misconduct. I think this case should be required reading for any trial lawyer who's trying to either make or oppose new trial motions based on jury misconduct.

Tim Kowal: Here's another point I flagged: there's potentially a safe harbor under footnote nine. The court refused to treat the Walmart question as misconduct and described it instead as a juror self-check. Remember, juror number six asked himself or herself whether the outcome would depend on whether the defendant were a big guy like Walmart, and answered that question: yeah, I think it would. I think I would have given a big, whopping amount of extra damages if it were a big guy with deeper pockets. And that was offensive to me. You're not supposed to base the amount of legal damages on how deep the pocket is. You're just supposed to assess how much the plaintiff proved. If there are punitive damages, that's where the ability-to-pay factor comes in, but not before that. But the court gave a kind of safe harbor there and described that as just a self-check, whatever that means. I think that particular juror failed to self-check, but still, it was just a mental process he or she was working through, and that's permissible, even if it betrays some inappropriate thinking. If it wasn't heavily discussed or predominant, and it didn't govern the rest of the jury, then it was not going to be grounds for reversal by itself.

Jeff Lewis: Yeah, it was an interesting footnote. In this court, unless it's basically per se forbidden—meaning just uttering those words without any other context, like uttering the words "let's flip a coin to decide who wins"—if it's not that clear, it's not going to be admissible. It's going to be an impermissible impeachment of a jury's verdict through their mental thoughts and processes.

Tim Kowal: Yeah. Again, I think that's the takeaway: the court is not going to go out of its way to overturn a jury verdict unless it finds that these improprieties pervaded the jury's overall thought process. So here are my takeaways from this case. First, a couple of what may have been missteps by trial counsel. If you are opposing a motion for a new trial, make sure to object in writing to every declaration on every available ground, including hearsay, foundation, mental processes, and corroboration, because that apparently didn't really happen here. So the declarations came in, and the trial judge and the Court of Appeal were permitted to consider them in their entirety. Second, make sure to get counter-declarations. If you've got a couple of jurors submitting declarations in support of a new trial against the judgment you want to defend, reach out to those same jurors or other jurors to try to get some counter-declarations, because without them, the facts in the admissible portions of the declarations are going to be deemed established. That's a quote from the opinion: if these declarations have foundation and there are no counter-declarations, those facts are "deemed established." And put the trial evidence supporting the damages figure in front of the court, because that becomes the rebuttal record.

And then for the counsel bringing the motion, as was done successfully in this case: build those declarations around what the jurors said aloud to the group. That's going to be your best way to distinguish a mere mental process, which is pretty much sacrosanct and can't be challenged, from an inappropriate factor for deliberation among the group. It's going to depend on what was said aloud, when it was said—here, during the damages vote—and how often, because "heavily discussed" was the watchword for the court here. And tie each statement that suggests an improper factor for consideration to a specific CACI instruction, and make sure those CACI instructions were given.

So those are my takeaways from the Martinez case. The last one is about an emergency tax declaration in Holtz v. Moreles. This was back in September, but it's a published case. A county board was facing a big hole in federal health funding, and the county declared an "emergency" so it could put a sales tax on a special election ballot instead of waiting for the next general election. Taxpayers said a budget problem isn't an emergency, and the Court of Appeal said the Constitution uses the word in its ordinary sense: an unforeseen situation calling for immediate action. The Court of Appeal affirmed. It held that "cases of emergency" means unforeseen circumstances that call for immediate action, and there's no real limit on the nature of the emergency. There are a couple of different lines of cases here. There's Varreos, which holds that the court decides for itself whether an emergency exists, so it's an independent question for the court. And then there's another line of cases—Northgate, Sonoma County, and Crown Motors—that stand for giving deference to legislative findings of what an emergency means. So there is, if not a split, then a conflict in the published cases on how to determine whether an emergency exists: whether that is independently determined by the court, or by the legislative body, with the court giving deference to that determination. But the court found it was not necessary to choose sides, because the declaration was valid under either standard, even though the court said the clause's broad language suggests deference. And the Supreme Court had left that split open in San Diego Firefighters back in 2006.

What I thought was interesting about this, Jeff, and the only reason I wanted to bring it up, is a couple of points. What about judicial notice? The appellants had put the agenda packet in their own request for judicial notice and stipulated to it, but then later objected to the truth of the statements in the packet. They won the point on appeal, but it still didn't get them anything. Still, the fact that there was litigation on the point because of the stipulation shows that judicial notice sometimes brings some consternation: whether a document is just accepted into the record under the limits of judicial notice, or whether you have somehow stipulated to allow the court to weigh the actual substance, the facts stated in the documents.

And I had mentioned the difference between a general election and a special election. This is what I thought was kind of interesting in the case, and it's only addressed in a footnote. Footnote 10 notes that the appellants had argued that the county could have called a special election without any emergency by designating Measure A as a special tax. But the twist was that a special tax would require two-thirds approval. Read that way, the emergency route got the county a special election at a simple-majority threshold. The court didn't address that issue other than noting that the point had been made. But I thought that was really the rub of the whole case. That's why the emergency mattered—not necessarily because the election needed to be held right now, although that was what the board found and what the court found. But there's the democratic question: how the Constitution structures the timing and manner of these elections mattered here, in the sense that if it had not been declared an emergency, it would have been subject to a two-thirds vote, and it wouldn't have passed without a two-thirds vote. So the emergency declaration not only got them a speedier election; it got them a lower bar to clear.

Jeff Lewis: Yeah. And for our listeners, the TL;DR, the holding of this case: emergency means unexpected. The broadest definition of emergency there is.

Tim Kowal: That's probably fair. Or emergency may just be whatever the governing body, the legislative body, says it is.

Those are the three cases plus Jeff's bonus case that we wanted to cover. In our next episode, Jeff—just to give a tease—we're going to cover ClioCon, and we're going to cover a few AI tools that I've been building. And I want to ask Jeff what AI tools he's been building in his practice in the past year or so.

Jeff Lewis: My stack's bigger than your stack.

Tim Kowal: You think it is? All right. Well, we'll measure up in the next episode.

Jeff Lewis: See you next time.

Tim Kowal: See you next time.