The California Appellate Law Podcast

Reversals on Technicalities: 4 Recent Examples

October 31, 2023 Tim Kowal & Jeff Lewis Season 1 Episode 107
Reversals on Technicalities: 4 Recent Examples
The California Appellate Law Podcast
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The California Appellate Law Podcast
Reversals on Technicalities: 4 Recent Examples
Oct 31, 2023 Season 1 Episode 107
Tim Kowal & Jeff Lewis

Appellate courts are in the affirming business. But be ready to take advantage of easy reversals, like in these examples:

😎 If the court refuses to hold an evidentiary hearing in a contested probate matter, that is (probably) structural error and reversible.

😎 If the court refuses to provide a statement of decision on key issues, that is a good opening to get a reversal.

😎 If the court judges a party’s credibility based on whether they use an interpreter, that’s reversible error.

😎 If the court issues a restraining order based on a single act, that’s reversible error.

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

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

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at

Other items discussed in the episode:

Show Notes Transcript

Appellate courts are in the affirming business. But be ready to take advantage of easy reversals, like in these examples:

😎 If the court refuses to hold an evidentiary hearing in a contested probate matter, that is (probably) structural error and reversible.

😎 If the court refuses to provide a statement of decision on key issues, that is a good opening to get a reversal.

😎 If the court judges a party’s credibility based on whether they use an interpreter, that’s reversible error.

😎 If the court issues a restraining order based on a single act, that’s reversible error.

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

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

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at

Other items discussed in the episode:

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone.

Jeff Lewis  0:17 
I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. Although Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some legal news and insights they can use in their practice. As always, we're grateful if you mentioned this podcast to a colleague if you find it useful,

Jeff Lewis  0:34  
or give us a five star rating. Before we jump into this week's discussion, we want to thank casetext as always for sponsoring our podcast. Kiss Tex is a legal technology company that has developed AI backed tools to help lawyers practice more efficiently since 2013. Casetext relied on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments in March 2023. Casetext launched co counsel, the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use all while maintaining security and privacy and listen to our podcast enjoy special discount on casetext basic research at That's

Tim Kowal  1:17  
Okay, Jeff, we have a bunch of cases and tidbits to share with our audience this week. So let's jump right into it. I've got a few this week that I wanted to share that have to do with getting reversals. I think these are mostly bench trial cases for issues that come up and bench trials and one in an arbitration, you don't normally see arbitration awards get reversed. But here's an example of a way to get an arbitrator reversed. But let's start with this case involving an evidentiary hearing. And in fact, it was the refusal to grant an evidentiary hearing being the basis for reversal. The refusal to grant an evidentiary hearing wound up being a reversible error in this contested probate matter. The case was Barbie versus PNC Bank, in this case after a trust beneficiary petition for over $1 million in trust distributions, the trustees contested the petition and requested an evidentiary hearing the trustees didn't want to pay out the million dollars and trust distributions contested the petition. The probate court refused, however, to hold an evidentiary hearing, the court said, Well, it's true quote to some people a million sounds like a lot but the probate court reason that there's a lot of money and litigation in this case. So the million dollars is really just something like a rounding error. I guess the court figured and awarded it without an evidentiary hearing court said no, no, no Court of Appeal said reversed. Quote, It has long been the rule that in probate matters. affidavits cannot be used in evidence unless permitted by statute. So it'd be the petitioner just want to do to have this resolved just based on the petition, the verified petition and declarations, but where the matter is contested. The probate court may not use declarations or affidavits, affidavits and verified petitions, quote may not be considered as evidence at a contested probate hearing. So the key word here, Jeff is contested if there's a contested fact if it's just a question of interpretation of law on uncontested facts, and there's no need for a trial evidentiary hearing. But here the distribution petition was contested. Therefore, the probate court should have granted the request for an evidentiary hearing. And there is this was an unpublished opinion. But it does state the key published authority on the requirement to allow an evidentiary hearing and contested matters is a state of Lench a 2009. Case? We'll put this in the show notes. The interesting question here is whether the denial evidence evidentiary hearing is structural error, Jeff is, as you know, and many of our listeners may know, when an error made by the court is structural, it defies review for prejudicial error. Normally, there's always a second step in determining what whether a an appeal may result in reversal, there has to be a showing first that there was an error and there was an error here, then the step, then the analysis usually moves to the second step. What which is did that error change the result? Was it prejudicial because the California Constitution requires that no judgment may be overturned unless there is it results in a miscarriage of justice, otherwise known as a prejudicial error. But in certain areas, like we've covered on this podcast before, Jeff, like when there's a denial of a jury trial, jury trial is a constitutional right, and how are you supposed to review and say, Well, if you had a jury, the result would have been different? It's impossible to say that. So that's just called a structural error. So what about the denial of an evidentiary hearing? If you would have isn't that akin to denial of an evidentiary hearing? It's like, it's like being denied a jury trial. But the court didn't reach the issue here, the Court reversed on a different ground. So it did not reach the question of whether the denial of the evidentiary hearing was a structural error. So we don't know if the denial is didn't resolve that that question, but the court directed the probate court to hold an evidentiary hearing anyway. So there's your up shop IT Pro I would get I would make the argument that it is a structural error. But what do you think, Jeff?

Jeff Lewis  5:09 
Yeah, I wonder if the parties below mean and offer a proof when they requested a hearing if they just requested a hearing. And I wonder if a party makes an offer of proof, my witness will say X, Y and Z. It just skips over a hearing, it's much easier to show the prejudice from that kind of deprivation of a hearing, when someone just simply requests a hearing, and you have no idea whether or what witnesses they're going to call. It's it's hard to know whether or not there's prejudice. So it makes sense. It should be structural error.

Tim Kowal  5:36  
Yeah. And as a good point, Jeff, and that's why litigants should should call you when they are requesting an evidentiary hearing and make sure that they're making a record that we're not just raising our hand and say, Yes, please, I'd like an evidentiary hearing. You want to be able to explain what those contested issues are. And like you said, show why your what your evidence is going to be make that offer of proof and why it matters to the outcome

Jeff Lewis  6:01 
on the record with the court reporters fingers flying,

Tim Kowal  6:04  
bingo. Okay, next case is cost severity, landscaping, maintenance versus literary communities. This is a case involving a lack of a statement of decision. This is one of my favorite perennial issues, Jeff, in when when there's a bench trial, you don't get a verdict, of course, because there's no jury, but you are entitled to a statement of decision. That's, that's one of the big advantages in a bench trial, the statement of decision can be better even in some in some respects than a jury verdict because the statement of decision includes findings on all material issues and sometimes in the horse trading in a jury verdict form you know, some things may be more general you know, get a pound a lot of interrogatories to the to the jury, it tends to confuse them judges tend to like general verdict forms over special verdict forms the cross defendant in the development dispute in Casa Verde, landscaping versus Lennar communities correctly followed the two step process for a statement of decision. There's a as we know, there's two steps you have to timely request the statement of decision and typically that that means in a in a multi day trial, you have 10 days after the court issues, its tentative ruling, the court has to give a tentative opinion. That's rule a court three point 1590. And then you just have you have 10 days, so so nothing, nothing too difficult. They're in the process of requesting unless it's a short a one day trial under eight hours, then you have to do it before you submit you have to do it on the record before the court says okay, matters submitted. Otherwise, you've waived your right to a statement of decision. So those are those are the more the gotcha cases in the short, short causes.

Jeff Lewis  7:40 
You need to think to yourself at that moment of time on a short trial. Is this the kind of case where I want to request a statement decision or do I feel like I'm going to prevail, and I want to stick it to the other side? If I think I'm going to win with not having a statement decision. It's interesting calculus.

Tim Kowal  7:54 
It is it is you have to you have to be thinking to that on your feet on those short trials. And I know you've you got stung once when you asked for a statement of decision, and apparently you are going to win and the judge said, Mr. Lewis, are you sure you want a statement of decision?

Jeff Lewis  8:08
He wasn't that kind? He said you're a fool. Mr. Lewis? Yeah.

Tim Kowal  8:10 
Well, I was trying to. Okay, so after you've timely requested the statement of decision and I should also say when you request the statement of decision, you have to identify what issues what are the issues on which you would like the court to make findings? You can't just say statement of decision, please. You have to help the court and tell the court what are the issues that you would like me to make findings on Mr. Lewis? Okay. And then once you've done all that, and you've done it timely, the next step is to object when the trial judge makes mistakes or omissions in its proposed statement of decision. So the but the appellant did all that in the cost severity case. And the trial judge still refused to make findings. The findings bore on an amount of damages against cost severity for breaching a change order, which seemed particularly puzzling to the Court of Appeal, because the trial court had specifically asked the parties to brief this issue for their closing arguments, but the Court of Appeal, the trial court didn't issue this statement of decision or it did, but it was missing all all sorts of findings that were requested and objected to so the Court of Appeal reversed and made a number of observations about the importance of a statement of decision. This case was an unpublished decision, but it has lots of good nuggets that you can use if this issue comes up in one of your cases where a trial judge has failed to issue a statement of decision or failed to issue a complete statement of decision that that addresses all of the issues that you have requested in your request for statement of decision. So here's some of the nuggets from the from the cost severity opinion, a trial court's failure to issue a complete statement of decision quote, places the case in a challenging position with respect to appellate review, unquote, that one's pretty obvious. Next one, the lack of statement of decision nullifies the doctrine have implied findings and quote with the nullification of the doctrine of implied findings, we cannot determine whether the courts damages calculations regarding retentions are correct or not as a matter of law. Next one this this one comes with a citation to a published case, the broad purpose of the amendment to the statement to the statutory statement of decision process seems to have been to alleviate the frustration of losing litigants and their attorneys confronted with non communicative trial judges, that's the day arm on vs. Southern Pacific company. That's that's my favorite quote from the case, Jeff that I'm going to bookmark and use the next time this comes up for me, sometimes it is to a judges benefit when they'd want all of the intents and presumptions, to support their reasoning and the judgment, they will just hold their cards close to the vest and not communicate their reasons. But they have a obligation to communicate the reasons when a timely statement of decision is requested. Here's another question that was raised by the respondent in the case can't the judgment still be affirmed? Even though there yeah, there's we're missing findings. But can't doesn't the differential substantial evidence standard of review still apply? Well, not so fast. The Court of Appeal reasoned lonar had posited that there's some computations that could be made sense of but this still left the court puzzled, the court said what we see is why the doctrine of implied findings is limited, and inapplicable here and noted, It noted that the the appellate court should not be left guessing about how a trial court reached a conclusion what the court could have, what the trial court could have done is not the test. So here there were some change orders, the amount of damages was an issue. And Lenore had said, Well, if the if the judge might have done this computation and pick some middle number or done this or done that, and the Court of Appeal was just confused by all that and said, You need to really show your work that the judge needs to show its work for us to be able to say whether it makes sense or not, before the

Jeff Lewis  12:00 
Court of Appeal, can rubber stamp the result below? Correct?

Tim Kowal  12:03  
There has to be has to be some rationale given before it can be rubber stamp. Last last quote from the from the cost severity case, a proper statement of decision is essential to effective appellate review. Without a statement of decision, the judgment is effectively insulated from review by the substantial evidence review and substantial evidence rule as we would have no means of ascertaining the trial court's reasoning or determining whether its findings, undisputed factual issues support the judgment as a matter of law. And yeah,

Jeff Lewis  12:37  
one more one more nugget, all add from the case, you know, I teach the paralegals and lawyers in my firm, right to the Court of Appeal. You don't want to anything that's distracting. You don't want to have cute phrases or anything that's going to distract the judges from the the real core of your argument. And one of the one of the keys is to use the right terms. When you're in the Court of Appeal. It's totally different than when you're in the trial court. And one of the terms of footnote 12. This chord took the took the time to point out that when someone fails to raise issues in the lower court, they failed to preserve that issue for appellate review. Oftentimes, Trial Lawyers masquerading as appellate lawyers will call that waiver. They will say party a waive this argument by not raising up below and for some reason this court the customer the court reminded the parties the correct term is forfeiture. So if you're ever arguing in the court of appeals, the lower court issue wasn't wasn't raised or brief below wasn't preserved. It's not waver. It's forfeiture and using the right terms can help the court the justices stay focused on your arguments and not have a footnote 12 Like this added to your opinion in your case.

Tim Kowal  13:44 
Yeah, that's it. That's a good point, Jeff. And in frankly, I sometimes still hedge when I talk about forfeiture and I just refer to waiver or forfeiture. Oh, it could be either. I think I think of the difference as waiver being you have to take some affirmative act in order to waive something. And forfeiture is usually usually occurs by omission or failure to do something. What do you think about that distinction?

Jeff Lewis  14:10 
Yeah, I don't know. I don't know that this Court would agree with that. I tend to always thought of it as forfeitures. Usually, when you're up in the Court of Appeal in the higher court, and you haven't raised an issue, let's say you the appellant. You haven't raised it in the opening brief, and he tried to raise it and or apply for the first time, I would say you have forfeited that issue by not raising it in the opening brief. And I see some lawyers incorrectly refer to that as waiver. But I'm going to keep this the site enry SB a 2004. California Supreme Court case for the proposition that losing a right based on the failure to assert below is forfeiture an intentional relinquishment of abandonment or the intentional relinquishment, or abandonment of a known right is waiver.

Tim Kowal  14:48
Yeah, yeah, there has to be intent to to to waive something, although I guess by omitting to do something that intent could could be implied or inferred. It's all it's all a little murky to me. I'm still going to continue Need to hedge and say waiver or forfeiture?

Jeff Lewis  15:03 
Okay. All right. No, no appeal is ever lost by hedging.

Tim Kowal  15:07 
Not that I know but I'll watch out for that case. Yep. Okay, next one, an arbitrator in this next case was reversed for basing the determination on credibility of a party for using an interpreter. That's the takeaway here. That's the big no, no, do not ever let a judge your judge or arbitrator base a credibility determination on whether the your your opponent uses an interpreter. So the what happened here? So there are two two interesting facts here. That kind of tell you what suggests what the outcome would be. First is the arbitrator found for the, for the buyer in this dispute over a business sale, the arbitrator found for the buyer based on the arbitrators conclusion that the sellers lack of credibility was, quote, rampant and obvious and quote, and then the second fact is that the aggrieved seller petition to vacate the arbitrator award but did not assert error in the credibility finding. So you would think that, that this has got to be affirmed because it's an arbitration award, and it's based on a credibility determination. But the court of appeals still reversed. The case is FCM. Investments versus Grove, fam LLC. It's a published decision. The reason for the reversal, the credibility determination was based on the fact that the seller testified using an interpreter, the arbitrator noted that, quote, Mrs. fams, use of an interpreter appeared to the arbitrator to be a ploy to appear less sophisticated than she really is. The arbitrator went on to find, quote, she has been in the country for decades, has engaged in sophisticated business transactions and has herself functioned as an interpreter and quote, so that was held to be bias, and thus reversible, per se, and it was not waived or forfeited. Even though the seller did not argue it in the trial court, the court held that bias based on language is a form of arbitrator misconduct. And that's one of the few narrow grounds that can be asserted to vacate an arbitrator award, an award must be vacated, quote, where the rights of the party were substantially prejudiced by misconduct of a neutral arbitrator and misconduct in this context includes actions that create a reasonable impression of possible bias.

Jeff Lewis  17:31 
Yeah, I gotta tell you, if I'm an arbitrator, and I read this case, at, you know, continuing education, I'm going to start giving less detail in my arbitration awards, I'm going to find witnesses, not credible period, and not give reasons why. And I gotta tell you, I think this is the maybe the right result for this case, but I could see this case being cited to open the door a million miles wide in terms of what constitute bias, I think you're gonna see a lot more issues being raised at the trial and appellate levels in terms of vacating based on perceived bias from the most innocuous of comments. So it's interesting to see decision, I'll be interested to see what happens from it.

Tim Kowal  18:08 
Yeah, yeah. My guess is that the cases that subsequent cases that that take up the this case here, where they say it was called FCM. Investments versus growth, fam are going to hold it to its facts and for the narrow holding that that credibility may not be based on a litigants decision to use an interpreter. And yeah, that. Yeah,

Jeff Lewis  18:33
I do wonder, by the way, I do wonder if this use of an interpreter issue was raised by a party, and like in closing argument, and suggested it was a ploy, and the arbitrator merely adopted that argument, or if this was a new conclusion introduced by the arbitrator and the award for the first time.

Tim Kowal  18:50 
Now, that's a Yeah. And then that raises the thought, what if what if this were not in arbitration, but in in front of a jury and an opposing counsel during closing arguments pointed out that you saw the plaintiff using an interpreter and her English was perfectly fine, so you should find that to be employed and make her think that she is just down on her luck and an uproar aggrieved? You know, so, yeah, that could be a form of misconduct and irregularity. Yeah. Yeah, for sure. For sure. Okay, got a couple more here. A restraining order against an attorney must be based on multiple instances of non litigation conduct. This case is Hanson versus Volkoff. A restraining order is available under Code of Civil Procedure. 520 7.6. If you've suffered harassment through a knowing and willful course of conduct is the operative phrase here that results in harassment and what type of people are more likely to cause a feeling of harassment then lawyers so attorney Jacqueline Hansen got a restraining order against her opposing counsel in a family law case that that attorney was is Oleg Volkov, but the Court of Appeal in a published decision reversed because some of the conduct was protected litigation activity. And the only unprotected conduct was just a single act. And a single act is insufficient to establish a pattern of conduct a course of conduct as required in the statute. And basically what happened here that is that Volkov had showed up at a deposition at Hanson's office, even though it had been canceled, and then he kind of dragged to speak before leaving, and there was testimony that he kind of creeped everyone out. But there was there wasn't anything really, really actionable. And And besides, it was part of the litigation conduct. And aside from from some other emails involving litigation conduct that the Court held could not be the basis for a restraining order. The only conduct was, is, quote, unquote, creepy attendance at the deposition. And I don't even know why this wasn't likewise considered litigation conduct showing up at a at a deposition, even if it was canceled. He was only there because originally there was a notice deposition, and he was only there 30 minutes he complained of a hurt foot when the door hit him on the way out. But however, offensive or annoying Volkov may have may have been, quote, this evidence was insufficient to support substantial emotional distress. And it was only a single incident, again, as a matter of law single incident cannot establish a basis for a restraining order,

Jeff Lewis  21:21  
you know, this the right result for this case? I don't understand the reasoning, though. I don't know why. It's not enough to say these are two lawyers in a in a dissolution proceeding. There's a family law judge out there who's got jurisdiction over these two, if they're not paving, one or both of them, go to the judge and get sanctions get judicial relief from the judge overseeing the case. I didn't understand I don't understand why one party resorted to a civil harassment restraining order. And why the Court of Appeal just didn't just rule. This is the kind of misconduct that if it is misconduct is within the jurisdiction of the family law judge to resolve. Well, you're

Tim Kowal  21:52 

right, you're right. That's what should have happened. This. Yeah, this is under the supervision of the judge for this case. So why did an attorney feel that it was it was a good move to go and get a restraining order? Maybe because restraining orders are too damn easy to get?

Jeff Lewis  22:06 

What do you think? They are very easy to get?

Tim Kowal  22:09 
Yeah, yeah. So that that could be kind of the invisible lesson from in this case. Okay, here's, and then here's one, it's, we have to talk about this, Jeff. Because this involves a lack of a reporter's transcript, you still need a reporter's transcript, even if nothing happened at the hearing. So as you know, if you're planning to appeal, you need a court reporter at your hearing. But sometimes, Jeff, we've talked about what if this is just a law in motion hearing on a pure question of law, like whether there's an enforceable arbitration provision, which is what happened in Oleg versus United care facilities. This is a non published opinion, it involved in appeal from a denial of a petition to compel arbitration. The question was, is there an enforceable look at this contract? Judge tell us if there's an enforceable arbitration provision? Why do we have to have there no testimony on that? Just look at the document, the Court affirmed that the Court of Appeal affirmed because there was no oral record from that hearing on the petition to compel ARB counsel thought that a reporter's transcript was unnecessary for the reason I just said this was a de novo appeal. It's just over the interpretation of a contract. But Court of Appeals said no, and refuse to assume that that was the case. The trial court did not give reasons for its ruling. Again, as you said a minute ago, Jeff, if you're a jurist, you want to just hold those cards close to your vest don't give more reasons than you absolutely need to. So because there were no reasons given for the ruling, the court of appeal, noted that it was conceivable that the hearing involves something other than pure questions of law. The court said, quote, without a record of the proceedings, we cannot discern the basis, whether factual or legal for the court's order. counsel had one last trick up his sleeve, and he filed a declaration in the Court of Appeal assuring the Court of Appeal that nothing was discussed at the record, other than the pure questions of law did not work, quote, a unilateral declaration is not a suitable substitute for a transcript of the proceedings and using the oral record preparation rules under the rules of court, notably 8.1 37. And so the Court affirmed the denial of the motion on grounds that defendant has failed to establish error by an adequate record. Yep.

Jeff Lewis  24:28 
Tim, no appeal was ever lost by having too many court reporters present to transcribe a hearing.

Tim Kowal  24:36 
No, not by having too many court reporters. It just seems that, you know, arbitration Jeff is hurts our business. Right. Every case that goes to arbitration means one case that we're not going to be able to take an appeal from. But the whole point of arbitration is to reduce on costs, like court reporters in deciding, you know, contract interpretation issues, but I just thought these are a little bit A little bit strange and they seem like they may be a little tone deaf to the court reporter shortage we all talk about. Whenever you're up at a hearing you use snapshot photos on bus stops about how the court is looking for desperately looking for more court reporters and, and the incentive programs that it has for new court reporters and for long term court reporters. And yet here it's saying, Well, this this hearing is really not. It's hard to imagine that the court didn't cite, didn't give any examples of well, this is what could have happened that would on the on the record that could have changed the analysis. No one can even imagine anything that could have happened at the record here. But you still need a record. Right? So but you can easily you fairly easily get that settled statement, you could just check that little box on the designation of record form for a settled statement. And that starts the process.

Jeff Lewis  25:45 
Yeah. And that changes everything.

Tim Kowal  25:47 

Well, I think in this case, it would it wouldn't change the result. What else is what's going to?

Jeff Lewis  25:51
I think you start from the assumption that under the settled statement process, the winner, the loser and the trial court, all behave cooperatively have a lot a and sit down like respected professionals and write an accurate settled statement, where in the real world, the losing party writes a sales statement that's one sided and only helps them the respondent, the winning party where writes a settlement settled statement or objects in a way that only helps them and the trial court doesn't know what to do with either and comes up with something completely different. And that the product of that process I just can't imagine ever helpful to the Court of Appeal, but I don't wear black robe.

Tim Kowal  26:32  
I've dealt with some people I haven't done the settled statement process myself other than on an advisory basis, where I always say, a short plane narrative, a neutral narrative of what happened. But you know, what, what do you have to say in the proposed settled statement here, other than plaintiff argued, defendant argued court ruled the end. Yeah,

Jeff Lewis  26:54 

that's the way it should be. And if plaintiff argued ABC defendant argued 123, judge rejected argument a and adopted argument one, that's what it should say. But in practice, they don't.

Tim Kowal  27:06  
Yeah. Well, if we could, yeah, if the litigants could learn some restraint, then it could be can be a more widespread, viable option. Okay, I'm just gonna, I'm gonna skip to one last one about about I just like this one about it. This involves a stipulated reversal. This involved a case in the aftermath of Viking river cruises case and Adolph versus Uber case. You recall the Viking River case out of the US Supreme Court was good for employers, and the employer defendant made good use of the Viking River case by compelling an arbitration of the employees individual claims and then getting the patent claims dismissed because under Viking River, once individual claims are compelled to arbitration, that employee no longer has standing to pursue the path of claims. But the California Supreme Court handed down Adolph versus Uber Technologies earlier this year 2023 holding that arbitration of individual labor claims does not mean that the employee lacks pega standing for the in the Superior Court claims. So when Adolph came down, the employer said, Okay, we're obviously going to lose this appeal that the employee has taken of this ruling, why why spend time and why waste everyone's energies on this appeal. So to its credit, it filed a stipulation under Code of Civil Procedure 128, a eight which is which invokes the Court of Appeals authority to summarily reverse, but it's a that is a it's a heavily guarded discretion, that discretion can only rarely be invoked, the section 128 A eight says that, in order for the court to exercise the power, to summarily reverse, it has to find that it would not violate the public's trust and undermine the competence in the court, the court system by just summarily and by by reversing judgments based on the stipulation of parties because you can imagine that we don't, you know, judgments are public judgments. They're not supposed to be just private were holdings or fashion just for those parties, the holdings are supposed to apply. There. It's a contribution to the common law. And if contributions to the common law are made by stipulations of the parties, rather than by independent jurists, then we've got a problem here that could potentially undermine the law, but because the aid off case is so clear in this case was was clearly going to be overturned. Anyway, the Court granted the request to reverse this case by stipulation.

Jeff Lewis  29:38 

All right now, that was not the final case. That was the penultimate case, because I've got one I'd like to chat about. We cannot conclude any podcast episode without a discussion of anti slap law. And I want to talk about the Roth be Seyfarth Shaw case came out on September 29, but was recently published. This is a second dish case. And I pulled two nuggets from this case, which I find super helpful in prosecuting anti slap motions. So if you oppose anti slap motions, just skip ahead, you probably won't be interested in this. Nugget number one, division eight of the second district clarified that when a person wins an anti slap motion and they're making a fee motion, the relative disparity in the financial net worth or financial means of the two parties is absolutely irrelevant to the amount of fees to award. A anti slap law was intended to fully compensate the prevailing party in terms of fees spent in crafting an anti slap motion and the losing party's finances can't be used in a way to deflate or defeat that fee award. So that was one interesting nugget I found.

Tim Kowal  30:50 

Yeah, I had never I had never heard that, that the financial wherewithal of a party could be a factor in the amount of fees awarded.

Jeff Lewis  30:59  
It's come up a couple of times, in my cases where either an improper or let's just say an unsophisticated attorney, not prat, well practice or well versed in anti slap law will bring up that point. And this is the first time I've seen it in a published decision in the context of anti slap law, a clear statement regarding the net worth of or the financial means of the parties.

Tim Kowal  31:19 
I guess I could imagine that a policy based argument that the anti slap law was meant to to protect the the the poor individual litigant against the well heeled, and and where were the the plaintiff is not well heeled, and just the poor individual that again, trying to vindicate a tort committed against him or her, then maybe there is a reason not to bring the hammer down so hard when they've lost an anti slap.

Jeff Lewis  31:46 
Well, hang on if that if that argument was allowed, if the well heeled nature of the litigant was relevant, then should the anti slap motion be denied? Or well, heeled litigants and the poor litigants be allowed to proceed with their case?

Tim Kowal  32:02 

Right? I'm not saying it's a it's a good argument. But I could I could I can imagine it.

Jeff Lewis  32:08 
Yeah. And the second point, this is not a new point. But it's one that I it really bothers me when I'm filing anti slap motions, and I get an opposition and that raises the illegal conduct exemption from flatly V Morrow. This is the 2006 case involving Irish tap dancer, and he was extorted and that extortion attempt was held to be that conduct was held to be outside the purview of anti slap law. And since that decision has come out, announcing the illegal or illegality exemption from anti slap law, I can't tell you how many times I see opponents raising in opposition to anti slap motion as well. Well, the conduct was illegal. So therefore it's exempt. And the problem with that is, first of all, it was so extreme and flatly that all mines would agree no minds could disagree that you're looking at extortion. This was illegal. That's one and two has to be criminal, not just a violation of some statute, not some conduct that you think support important. It's got to be criminal. And this is not this Ross case is not the first case. But it's a very clear statement again, that the scope of the illegality exemption of flatly is very narrow.

Tim Kowal  33:20 
Yeah, yeah. It has to be criminal. And it has to be basically undisputed, doesn't it?

Jeff Lewis  33:25 
Right, either undisputed or so egregious that you get 100 judges all looking at the same conduct and all 100 would say, yep, that's extortion or some other criminal conduct.

Tim Kowal  33:34  
Yeah. Yeah. I also see flatly cited for this a lot that it is often invoked, and almost almost never invoked correctly.

Jeff Lewis  33:44 
Yeah. Yeah. Big time, big time. And then, we had a couple of tidbits we wanted to cover one was, you know, I fought him. After that news of that high profile New York case where a lawyer was sanctioned for using chat GBT, not once, not twice, but I think three times in briefing in federal court, he got sanctioned, and he was vilified across the internet. I thought that after that big story, that would be the end of instances of lawyers using chat GBT to generate case law for briefs. But I heard this story. I heard it on the Las podcast a couple weeks ago, and then I read it on And there's a law firm that is very well known in Southern California for aggressive landlord representation. And that firm was called into court and sanction for Finally, a brief included two cases that did not exist, and the court has resulted this dismissed the landlord's lawsuit allowed the tenant to remain in place sanction that law firm $999, just under the reportable limit, and although it was never confirmed that chat GBT was the cause for the cases to be in that brief. It's hard to think of a non AI related reason for these made up cases to appear in a brief. I did note that the law firm that got sanctioned didn't throw the lawyer under the bus who did this apparently was a first year associate, it doesn't work there anymore. Didn't name names. And so whoever that first year associate was who may or may not have used chat GVT remains anonymous, but I just can't believe we're still reading stories about law firms using something other than case text or something else to do the research.

Tim Kowal  35:21 
That's right. And I think that's one of the reasons why my case texts, and it's co counsel chat GPT enabled legal search platform was developed, because they programmed some guardrails in so that you're not going to get any of these fake cases, when you do legal research using co counsel. And I've noticed that when I do a lot of research using co counsel, the case text product, and when it generates the the nice summaries of kind of gives you the short answer, and then the slightly longer answer in response to your research request. It never gives you the case citations. It just tells you the name. And I think it does that. I think I read somewhere that it does that by design. They don't they just don't want any risk that the AI algorithms are going to generate some fake case citations. So it refers to the cases by names and then it gives you a whole list of hyperlinked cases that you can go and read for yourself. So it's so they've got some guardrails built in there so that you can't possibly cite to any fake cases unless you're going out of your way to misrepresent the law. Yeah, yeah. Yeah.

Jeff Lewis  36:26 
Interesting. All right. Were there any tidbits you want to cover here, Tim?

Tim Kowal  36:30 
Well, I'll mention this. This one, this was from a couple months ago. I think we might have mentioned this before, actually. But it's a cut and paste briefing. It may be poor practice. You know, we talked about sometimes there's a there's a legal arguments that have already been made in the trial court briefing, and we really does a client really need to spend money having another attorney, rewrite them. So sometimes there's copy and pasted into an appellate brief. And the ninth circuit here says, Yeah, we're not we're not crazy about that practice. But the appellee in this particular case, tried to get the thick tried to get get the appellate sanctioned or get the argument stricken. The court said no briefs that do this, that do the copy and paste job. They're not defective, per se. And it's not necessarily a basis to dismiss an appeal. So this was a the court rejected the city's argument that we should dismiss the appeal as defective because plaintiffs copy and pasted sections of their district court brief all the plaintiffs repeat verbatim some of the arguments that they made to the district court, those arguments are relevant to our court as well. And neither the Federal Rules of appellate procedure nor any other binding legal authorities require that we dismiss the appeal.

Jeff Lewis  37:40 
Yeah, I guess that case is a good defense for cut and pasting an argument.

Tim Kowal  37:48 
But don't do it. Yeah. I don't even know what the problem is with with cutting pasting an argument as long as it's, as the Court says here, it's it. The issues are irrelevant. What's wrong with with the copy and pasting?

Jeff Lewis  38:02 
Yeah, yeah, I, I can't even mention, I guess.

Tim Kowal  38:06 
Yeah. I mean, even though the court court rejected the argument that it could result in dismissal, even saying that it's not necessarily a basis to dismiss, I don't even know how it's even remotely a basis to dismiss, unless, like real flagrant, you know, it just truly copy and paste, it didn't even change. The, you know, it didn't change any of the applicable language or, okay, anyway, that'll wrap it up for today. Again, we want to thank our sponsor casetext for sponsoring the podcast each week, we include links to the casetext we discuss. And we do that by linking the casetexts daily updated database of case law, statutes, regulations, codes, and more listeners of the podcast will enjoy a special discount on catext basic research, when they visit casetext at That's

Jeff Lewis  39:01 
Yeah, if you have suggestions for future episodes, or if you want to send us a chat, GBT generated list of fake cases, email us at info at Cal And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. The next time,

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