Not To Be Published (10/25/22)

To My Colleagues:

Each week, I scan dozens of new cases and legal news sources looking 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].

–Tim Kowal

Covid-restrictions on churches likely unconstitutional where secular establishes are exempted, says Cal. Court of Appeal

A trial court hit Calvary Chapel with over $30,000 in sanctions for violating court injunctions that required the church to comply with local Covid restrictions. The church steadfastly refused to enforce the state and local rules that imposed capacity limitations on indoor gatherings, and that required face masks and the submission of a social-distancing protocol. The court enjoined the church to follow the protocols, on pain of daily sanctions.

The church petitioned the Court of Appeal for review from the contempt orders. And in People v. Calvary Chapel San Jose (D6 Aug. 15, 2022 No. H048708) 82 Cal.App.5th 235, the Sixth District agreed with the church.

The Court of Appeal held that the capacity restriction could not satisfy strict scrutiny, because the restriction exempted secular activities like bus stations, airports, grocery stores, restaurants, office buildings, and retail stores. “We are mindful,” said the Sixth District, “that in Tandon, the Supreme Court stated that “at-home religious exercise” was comparable for purposes of the Free Exercise Clause to “hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants.” [Citation.]”

In fact, the prosecution did even not dispute that the capacity limitations could satisfy strict scrutiny review.

Takeaway:

If you are interested in how the U.S. Supreme Court has dealt with church challenges to Covid restrictions, the Sixth District Court of Appeal provides a good summary.

In short, the courts must be very suspicious where Covid restrictions are enforced as against churches but exempted as against secular establishments. The Constitution assumes that churches are treated as out-groups, and exemptions raise the specter of favorable treatment toward in-groups. This obliterates the Employment Division v. Smith rule that religions organizations are subject to generally-applicable rules, and restores the pre-Smith strict-scrutiny analysis.

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

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The 21-Day Safe Harbor Means 21 Days: Motion Filed Day 21 Is Too Early, Court Holds

If an attorney files a frivolous pleading, one of the remedies that should come to mind is a motion for sanctions. But the operative statute requires giving opposing counsel a 21-day warning first, known as a safe harbor.

How long is the 21-day safe harbor? There is now a published decision to tell us. The answer, according to Transcon Financial, Inc. v. Reid & Hellyer, APC (D4d2 Jul. 22, 2022 no. E076728) 81 Cal.App.5th 547, is that the 21-day safe harbor is no less than 21 days. A sanctions motion filed on the 21st day is too early. So the order granting that sanctions motion was reversed on appeal.

But I have a question about this.

The opinion contained no real analysis how the shortened safe harbor prejudiced the plaintiff or its attorney here. The purpose of the safe harbor is to provide a reasonable time for the offending party to reconsider its pleading. True, the plaintiff was deprived one day of that period. But there was no mention in the opinion that the plaintiff withdrew its pleading after the sanctions motion was filed. And a review of the docket indicates the offending complaint was not withdrawn. To the contrary, the defendants filed a demurrer to the complaint, and the plaintiffs opposed the demurrer.

So where is the prejudice? The court did not say that the safe-harbor provision is jurisdictional. The court also did not say that the error defies review for harmlessness. And there was pretty clearly no prejudice. So what is going on here?

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

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Don’t Seek Default Without Notifying Opposing Counsel. Just Don’t.

If you have served a summons and complaint and the defendant has not answered, don’t get too excited. Attorneys have a duty—an ethical duty, and a statutory duty—to warn opposing counsel before requesting default.

But the plaintiff’s attorney in Shapell Socal Rental Properties, LLC v. Chico’s Fas, Inc. (D4d3 Oct. 17, 2022 no. G060411) ___ Cal.Rptr.3d ___ didn’t do that. Far from it. Instead, counsel “calculated to keep [the defendant] in the dark” to obtain a default judgment.

In a published opinion, the Court of Appeal reversed the order refusing to set aside the default judgment, and pointedly noted counsel’s ethical shortcomings in the trial court. The Court of Appeal said the trial court’s failure to grant the motion to set aside the default was “inexplicable,” and on remand, disqualified the trial judge from hearing the case further.

The court also was unhappy with appellate counsel for refusing to acknowledge the ethical shortcomings below.

Driving the dagger even deeper into the landlord, the court noted that the tenant may seek an award of restitution against the landlord. This could include restoring possession to the tenant-appellant, or awarding money damages.

So bookmark Shapell Socal and consider restitutionary remedies if you are an appellant.

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

Get a weekly digest of these articles delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y.

“Gateway Drugs” to Legal Tech, with Ernie Svenson

We attorneys are trained to spot patterns, but many of us are poor at spotting patterns of inefficiency in the way we practice. Ernie “The Attorney” Svenson joins this episode of the California Appellate Law Podcast to explain how lawyers can adopt “systems thinking” to make their practice more effective, efficient, and even more fun.

Ernie shares how he learned about efficiency from his judge during his clerkship who, to shave time off the “Oyez, Oyez, Oyez” ceremony, cut the last “Oyez.” And how his judge delegated the task of explaining to new clerks about the edited “Oyez.” Now THAT is systems thinking!

Too abstract? How about a taste? Here are Ernie’s “gateway drugs” to get you hooked on legal tech:

• SaneBox — Most lawyers use some filtering to reduce email load, but SaneBox has really advanced filters that will find you spending less time in your inbox.
• TextExpander — Everyone sends out routine emails (think: retainer agreements). TextExpander populates an complete email with a macro. (And it will getting your gears turning about other ways to automate your day-to-day.)
• Automated Calendaring (e.g., Acuity, Calendly) — No attorney should be booking their own appointments.

Listen to the podcast here.

Video clips from the podcast are available here.

You can also subscribe to the California Appellate Law Podcast on your favorite podcast player.

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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?www.tvalaw.com/articles. Contact Tim at?[email protected]?or (714) 641-1232.

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