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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.)
November 13, 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

CA Supreme Court to Review Whether In Person Civil Trial May Commence May

Wells Fargo's attorneys moved the trial court, unsuccessfully, to continue a San Diego trial at the outset of the pandemic, and petitioned the Court of Appeal, again unsuccessfully, for a writ. Now the Supreme Court has granted review on the question:

"During the current pandemic, may a trial court compel participation in a large in-person trial—with 20 or more persons in the courtroom—in a civil case in which there is no calendar preference and no exigency requiring an immediate trial?"

Skimming the petition, it strikes me as calling for a legislative remedy, i.e., new rules for trial procedure for the foreseeable future.

As for a judicial remedy, I have an easy solution: Stipulate to a pro tem judge. Phase 1 of this trial is for declaratory relief, meaning, no jury. Send this out to a JAMS or ADR facility and have a socially-distanced or even a Zoom trial according to preference.

We just did this for a trial, and is working great so far. Let me know if you need the forms.

More available here via David Ettinger.

Appeal Held Not Frivolous, But Lawyer Argued It Frivolously

The 10th Circuit sanctioned the attorney of a homeowner tenaciously trying to avoid foreclosure on her home. The court noted that "an appeal may be frivolous as filed or as argued." An appeal frivolous as-filed is one where the decision is "plainly correct" so there is no genuine appealable issue.

But an appeal may be genuine, but just frivolously argued, and thus subject to sanctions. "A party may argue an appeal frivolously by “mak[ing] no attempt to address the elements requisite to obtaining reversal,” advancing “irrelevant arguments,” “failing to explain how the lower tribunal erred or to present clear or cogent arguments for overturning the decision below,” and “cit[ing] inapplicable or irrelevant authorities.” "

Here, the court sanctioned the attorney, but not his client, because the client was not responsible for the attorney's poor briefing. The court noted that "parts of his briefs “read[] as though [their] author simply has not read the order he is appealing.” "

The court also sanctioned the attorney for double the bank's cost of preparing an appendix. Attorney had only included docket entries, the complaint, and the district court's order, which was "wholly inadequate."

Mitchell v. Bank of N.Y. Mellon, No. 19-4098 (10th Cir. Nov. 2, 2020).


Keep this handy, attorneys -- you may need it someday.

“Murphy's law applies to trial lawyers as well as pilots. Even an expert will occasionally blunder.”
Unitherm Food v. Swifteckrich, 546 U.S. 394, 407 (2006) (Stevens, J., dissenting).

Cal. Courts Split on Whether 998 Offers Apply in Employment Cases

If you are making or considering a CCP 998 offer in an employment case, note the current split of authority. In some cases, an employee making an unsuccessful overtime claim could be made to pay employer's costs under CCP 1032. That rule is adopted in the Fourth District, Div. 2. But the Second District, Div. 3, and the Sixth District reject that rule.

And now so does the Fourth District, Div. 1 in Cruz v. Fusion Buffet (Cal. Ct. App. - Nov. 10, 2020), concluding Labor Code 1194, governing minimum wage and overtime claims, "is intended to operate as a one-way fee and cost shifting statute." Thus, there is no role for CCP 1032 to play. And as CCP 998 offers only augment costs under CCP 1031 and 1032, they don't apply.

In the Cruz case, employee sued his employer restaurant and its two owners on an alter ego theory. The owners each made 998 offers for all of $1 each. Cruz prevailed against the restaurant, but got zilch against the owners.

Original article here.
More on 998 here.

FYI: Acronyms Are DOA

Senior Judge Silberman of the DC Court of Appeals is having none of your alphabet-soup acronyms:

"The Agency and thereby the parties regularly use the acronym “ILEC” for Incumbent Local Exchange Carriers, and “CLEC” for Competitive Local Exchange Carriers, but we prefer the use of the English language and deplore the practice of using acronyms unknown to the general public. Thus, we use “incumbents” to refer to what the parties call “ILECs,” and “insurgents” to refer to what the parties call “CLECs.”"

I cannot tell you how happy this makes me. I find few things more repellent than looking down-page upon forests of menacing, unpronounceable non-words. So do judges. That is a feeling in your readers you want to avoid at all costs.

Comptel v. Fed. Commc'ns Comm'n, No. 19-1164, at *3 n.1 (D.C. Cir. Nov. 3, 2020).

Can't the Trial Attorney Just Handle the Appeal?

Here is my short video explaining what an appellate attorney is, and when you should consider bringing an appellate attorney on to your litigation team.
 

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