Not To Be Published (04/02/24)

Tip Summary:?

-- Defective appellate briefing in two cases results in dismissed appeals.

-- CEB has my article, “Does 998 cost-shifting apply to settlements? A three-way split?”.

-- New Cal.App.Law.Pod episode?w/?Social Media and Jury Waiver High Court Cases, and Other Appellate News.

Dear Colleagues:

Each week, I look for cases presenting a likelihood to shock, surprise, puzzle, inform, anger, or elate. The summaries are mine, the reactions are yours. If you would like to share your reactions, or provide a tip, email me at [email protected]. And I am always happy to talk about these kinds of issues in your cases.

Tim Kowal

Defective appellate briefing in two cases results in dismissed appeals

Things are not going great when this is the first line of the court’s opinion in your appeal: “We have the inherent power to dismiss an appeal where it is "based upon wholly sham or frivolous grounds.”” The Second District in Schwartz v. Noya (D2d6 Mar. 20, 2024 No. B329331) [nonpub. opn.] was not happy with how the appellant presented its case, which was all of three pages of briefing.

Then again, this was an in pro per appellant.

But counsel in Grant v. City of Long Beach (9th Cir. Mar. 22, 2024, no. 22-56121), should have known better—which perhaps is why the panel published the decision. Counsel misrepresented several cases, and cited two cases that do not exist. When the panel issued a focus letter and asked directly about the nonexistent cases at oral argument, counsel replied: the nonexistent cases “did not apply.”

Not exactly a satisfying explanation. It is, says Cory Webster who spotted the case, “[a]n odd way to characterize non-existent cases.”

The panel concluded “We are therefore compelled to strike Appellants' brief and dismiss the appeal.” And did so in a published decision.

Comment

The Grant panel does not indicate counsel misrepresented the record or otherwise failed to present cogent arguments to support the appeal—just that the arguments were not supported by caselaw that faithfully supported the propositions. Counsel did indicate this was her “first time ever filing a brief with the 9th Circuit,” and she also indicated she worked hard to address other deficiencies in the brief while ill. The opening brief, true to the panel’s decision, is stricken from the record and unavailable. But judging by the appellee’s brief, the opening brief presented the issues clearly enough for the appellee to address them on the merits.

The panel was obviously sending a message here: do not misrepresent cases. The arguments might possibly have been meritorious (no way of knowing now). But misstating the law can get your appeal tossed.

And if the panel directs you to explain why you’ve cited cases that do not exist, be ready with a better explanation than “they don’t apply.”

This is a summary. Read the full article at the?KowalLawGroup.com?blog here.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/.

CEB has my article, “Does 998 cost-shifting apply to settlements? A three-way split?”

CEB DailyNews has published my article, “Does 998 cost-shifting apply to settlements? A three-way split?”

CEB DailyNews has published my article, “Does 998 cost-shifting apply to settlements? A three-way split?” The article is about the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884), where the parties settled for less than defendant’s 998?offer. In a published opinion. the court held that, contrary to the plaintiff’s textual interpretation, “judgment or award” does not mean settlement. Instead, “a plain reading” yields the conclusion that the “more favorable judgment or award” language merely refers to a more favorable “terminat[ion].”

So if you settle for less than the 998 offer you rejected, prepare to get hit with the 998 penalties.

But note that the Supreme Court has granted review in Madrigal on this question. Which is why Justice Viramontes dissented.

This is a summary. Read the full article at the?KowalLawGroup.com?blog here.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/.

Social Media and Jury Waiver High Court Cases, and Other Appellate News

The U.S. Supreme Court provides awaited guidance on public officials’ use of social media, and the California Supreme Court gives a cautionary tale about waiving the right to a jury trial. Jeff and I discuss:

• ??Free Speech on Government Social Media: Lindke v. Freed (Mar. 15, 2024, No. 22-611), notable for being short and unanimous, holds that, when a public official talks about official business on a private social media page, it’s no longer a private social media page.
• ??Jury waivers: If you waive, and the trial judge declines to set aside the waiver, it’s game over: any right to appeal is symbolic only.
• ??Also symbolic: the different between waiver and forfeiture. The difference, it is said, is that waiver is intentional. But the Court notes that waiver can also be unintentional. That pretty much obliterates any distinction between the terms, save for spelling.
• ??The facts were based solely on filed documents, not testimony. So appellate review is de novo, right? Wrong. Appellate courts don’t defer to fact-finding because the trial court is better at it. They defer because it’s not the appellate court’s job description.
• ?A Church of Scientology case involving Leah Remini is poised for an anti-SLAPP appeal.

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Video clips from the podcast are available here.

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_______________________

I am always happy to talk with you about these kinds of issues in your cases.

-Tim

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and posts regular updates of appellate news and tips for trial attorneys at KowalLawGroup.com. Contact Tim at [email protected] or (949) 676-9989.

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