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Appellate Law Updates from Tim Kowal and
Thomas Vogele & Associates

(714) 641-1232 | www.tvalaw.com | tkowal@tvalaw.com |
Appellate Podcast for Trial Lawyers: www.CALPodcast.com
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  California Appellate News

   Getting trial attorneys more appealing results

“While law may reach some peculiar results, it ought never be silly. ”
(People v. Ritchie (1982) 130 Cal.App.3d 455, 459.)
October 30, 2020

Dear Reader,
Each week I review several recent decisions out of the appellate courts in California, and elsewhere. I'd like to tell you about the ones that might help you get an edge in your cases and appeals. Other decisions are just peculiar. I'll tell you about those, too.
Tim Kowal
For appellate questions, call (714) 641-1232
or email tkowal@tvalaw.com
Subscribe to the California Appellate Law Podcast: www.CALPodcast.com

Family Law Appeals: The Cal. Appellate Law Podcast Episode 6

Appellate attorneys Jeff Lewis and yours truly discuss family law appeals in the latest episode of the California Appellate Law Podcast. In addition to some nuts-and-bolts procedure, we discuss:

  • Hiding Bitcoin from your spouse is a righteously bad idea, and claiming you don't have to deliver her half of the Bitcoin because it was hacked is not a winning argument. In re Marriage of DeSouza (2020) 54 Cal.App.5th 25.
  • In a spousal support modification request, the court shifts the burden of proof to the party opposing the request. In In re Marriage of Hein (2020) 52 Cal.App.5th 519, 545–546, the Fifth Appellate District held father did not satisfy his burden by relying on expenses listed in his businesses tax returns. (Look for this case to be cited in civil appeals seeking to shift the burden of proof.)
  • We also discuss Conservatorship of O.B., which we covered previously here and here.

We hope you will tune in!

Originally posted here.


The SLAPP That Breaks the Camel's Back

You will get a sense of the First District's frustration over this SLAPP appeal just by its disposition. The case is Oakland Bulk and Oversized Terminal LLC v. City of Oakland (D1d2 Sept 17, 2020) A157330. The Court does not merely affirm the order denying, without prejudice, the City of Oakland's SLAPP motion. No, the Court reverses that order, and directs the trial court to deny the City's motion WITH prejudice. 

And the Court has some words for the Legislature as well. 

Here is what happened. Oakland entered an agreement with a developer to create a shipping terminal at the former Oakland Army Base. Activist groups learned coal would be shipped out of the terminal, and gave the city an earful over it. The city capitulated and passed an ordinance banning coal handling, directly contradicting its agreement with the developer. So the developer sued in federal court, and got an order enjoining enforcement of the ordinance. 

But the city continued to stall and delay performance under the agreement. So developer filed a breach of contract claim in state court. 

As one does when seeking to stall and delay, City filed an anti-SLAPP motion. The City "never expressly says what is" the basis of its motion. Its motion is filled mostly with "boilerplate." The trial judge, having simultaneously sustained a demurrer with leave to amend, denied the SLAPP motion without prejudice as premature, referencing the forthcoming amended complaint. 

City appealed the order denying its SLAPP motion. As a result, the entire action was stayed. 

The First District has little trouble agreeing the City's SLAPP motion was properly denied. The developer was not challenging any right of petition or free speech in opposition to coal handling. The developer just wanted the City to abide by its contract. 

Here is what the First District had to say to the Legislature in its concluding section, titled "Some Closing Observations—and a Plea." The Court traces the history of "misuse and abuse" of the SLAPP statute, and how "ironic and sad" it is that litigants file "meritless anti-SLAPP motions as a litigation weapon." 

The Court has a specific proposal in mind: to repeal the automatic right to appeal denials of SLAPP orders. Such orders should be left to review on a writ basis only, as they were prior to 1999. In 1998, two law professors had suggested making denial orders immediately appealable. But the Judicial Council, wisely, rejected that suggestion, stating that review by writ petition was sufficient. 

Unfortunately, the Legislature sided with the law professors against the Judicial Council and enacted an immediate right to appeal orders either granting or denying SLAPP motions. Criticism of that amendment was swift and widespread, and was even noted by the Senate Judiciary Committee. But the Legislature chose to do nothing. 

Delays were added to increased costs when the Supreme Court in Varian Medical Systems v. Delfino (2005) 35 Cal.4th 180 held the appeal of a denial of a SLAPP motion automatically stayed further trial court proceedings. ... This means that however unsound an anti-SLAPP motion may be, it will typically stop the entire lawsuit dead in its tracks until an appellate court completes its review.” (Id. at pp. 1184–1185.)

Why would a defendant pour tens and hundreds of thousands of dollars into a SLAPP motion and appeal? The First District asked defense counsel that question. His response: If the City wins, it will get its fees. 

But, the Court wants to know, even if successful, "just how much does the City expect to be awarded for the successful striking of two lines in a 63-page complaint?" (Oh, you would be surprised – big-firms can command six-figure SLAPP fee awards, even before an appeal is taken.) 

"Something," the First District concludes, "is wrong with this picture." And "the time has come for the Supreme Court to revisit the issue of an automatic stay." And for the Legislature to revisit the wisdom of vesting a right to appeal orders denying SLAPP motions. 

Originally posted here.


An Order Resuming Civil Litigation of a Matter Previously Compelled to Arbitration Is Likely an Appealable Order

A couple of good cautionary appellate lessons concerning arbitration orders.

In Zazueta v. Imperial Heights Healthcare & Wellness Centre, LLC (Oct. 26, 2020) D075879 (D4d1), the trial court compelled the case to aribtration. But defendant "failed to engage and participate" in arbitration. So plaintiff went back to trial court and filed a "motion to restore" the case to the civil active list, which the trial court granted.

The Fourth District reversed, holding an order lifting a litigation stay and resuming a matter previously ordered to arbitration was the "functional equivalent" of an appealable order denying arbitration.

A recurring theme on the California Appellate Law Podcast (www.CALPodcast.com) is how appealable orders often come in unusual guises. This is a good example of that. A tip for the wary.

The Court points to an interesting distinction of a 2016 case, Gastelum v. Remax Internat., Inc. (2016) 244 Cal.App.4th 1016, 1022-1023, where the arbitrator -- not the trial judge -- had terminated the arbitration on procedural grounds. There, the order was not the "functional equivalent" of an order denying arbitration.

The safer course is to appeal immediately. If you wait and you are wrong, the issue will be lost forever.

I found this interesting. Part way in to the appeal, the parties stipulated to dismiss the appeal and to ask the trial court to vacate its order and resume the arbitration. But the Court rejected the stipulation. The Court did reverse the order. The Court did send the parties back to arbitration. And the Court did not publish its opinion. This is the same outcome to which the parties had stipulated. I can only speculate that the Court had something different in mind when it rejected that outcome previously.

Originally posted here.


Music Festival Liable for Foreseeable Harm at Festival: Are Dodgers Liable for Foreseeable Violence Following Series Win?

An event operator may be liable when an event attendee dies after engaging in foreseeable illegal activity at the event -- overdosing on illegal drugs. So holds the Second Appellate District in Dix v. Live Nation Entertainment, Inc. (D2d7 Oct. 26, 2020) B289596. Live Nation hosted a large "electronic music" festival at the Pomona Fairplex with 65,000 attendees. It was foreseeable that the young people who would attend the event were likely to use illegal drugs at the event. And that they were likely to overdose. And thus that they would need require medical care while at the event. 

"Some moral blame attaches to a music festival operator's negligent failure to prevent foreseeable harm to attendees." 

The following day, riots and looting broke out following the Dodgers World Series victory. Violence at or after Dodgers games has become, unfortunately, a foreseeable phenomenon. The Dix court presents two cases that may be of interest in determining the Dodgers' potential exposure to liability. 

In Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, two teenagers attended an all-night rave party at defendant's roller skating rink, then, under the influence of drugs imbibed at the rave, got into a car accident on their way home. Held: no liability for events outside and after the event. 

But Sakiyama distinguished Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, where a radio station with "an extensive teenage audience" held a contest for listeners to locate a disc jockey driving around Los Angeles. Participants in the contest negligently caused the death of a third party driver in a car accident. Held: the radio station was liable for foreseeable reckless conduct conducted as part of the radio station's contest. 

Seems a close call. My suggestion is that Los Angeles stick to Stanley Cups.

Originally posted here.


A Good Tip for Good Writing

Don't end your sentences with ponderous phrases, like citations or awkward locutions.

(For that matter, don't begin your sentences with ponderous phrases, either.)

Bryan Garner @ lawprose.org offers two passages for comparison:
  • Reynolds's termination rights are expressly conditioned on Midwest Metallics' failure to meet requirements established pursuant to OGL § 543.691(A)(1)(c). Midwest Metallics cannot add a series of implied "good faith" preconditions to the Sales Agreement previously entered into by the parties.
  • Reynolds's termination rights are conditioned expressly—and solely—on Midwest's failing to meet commitments in two seminal documents: the environmental report and the cleanup work plan. (OGL § 543.691(A)(1)(c).) Midwest Metallics cannot now rewrite the Sales Agreement to import other conditions.
If you imagine your reader as a runner, you can spot the moment where he steps in a pothole and loses his gait.
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