Not To Be Published (11/08/22)

tl;dr:

• judges notice when you're throwing spaghetti at the wall, says Justice Lambden;
• Gov. Newsom's office appears defensive about having appointed rather than having nominated Justice Evans to Supreme Court;
• 998 offer expires upon oral ruling granting SJ (but not a tentative ruling? hm...);
• latest Cal.App.Law.Pod covers:
• 128.7 motion filed on day 21=too early;
• default filed w/o telling OPC=unethical; and
• forwarding A/C email to hotel clerk to print=privilege destroyed.

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

Concede Weak Arguments, Gain Credibility, Says Justice Lambden

Even more than being buried alive, Justice Lambden says attorneys are terrified of missing an argument. This is why attorneys tend to indulge the temptation to be overinclusive in their arguments.

But making too many arguments comes at the cost of credibility. If the attorney is just “running the loop again,” the bench is more likely to tune out. “We always notice,” Justice Lambden recalled from his time on the Court of Appeal, when an attorney told the court which argument to focus on. You will show courage if you acknowledge a certain argument is not your strongest, and you will earn credibility when you pivot to the argument that is your strongest.

Watch the clip here:?https://bit.ly/3tbGaG8

This is a clip from episode 51 of the California Appellate Law Podcast. Listen to the full episode here:?https://lnkd.in/gk_nQsG6

Gov Newsom appointed a new Supreme Court justice, but he should have nominated her?

When Governor Gavin Newsom selected Justice Patricia Guerrero as the new Chief Justice, he also “appointed” Judge Kelli Evans to fill the empty seat. But there was some debate about whether the governor may “appoint” Evans, or whether instead he needed to “nominate” her, to be confirmed by the voters.

Supreme Court-commentator David Ettinger has written extensively that, under the state constitution, the governor needed to nominate Guerrero’s successor.

Ettinger visits the California Appellate Law Podcast to explain the difference, why it matters — and how his commentary on the issue got him a call from the governor’s office.

Ettinger’s posts explaining the issue are here and here.

The full episode featuring David Ettinger is here.

Watch the clip here:?https://lnkd.in/gKkTUTDX

This is a clip from episode 53 of the California Appellate Law Podcast. Listen to the full episode here:?https://lnkd.in/gGUS4uci

Settlement Offer Under § 998 Automatically Expires If Judge Grants Summary Judgment

There are several odd things about Trujillo v. City of Los Angeles (D2d1 Oct. 27, 2022 No. B314042) -- Cal.Rptr.3d -- (2022 WL 15119812), a case about accepting a Code of Civil Procedure section 998 offer of compromise. The court held the acceptance was not valid because, even though it was within the statutory 30 days, the acceptance came after the trial court had already granted summary judgment.

The set-up is pretty simple: The City was defending against a claim that it negligently maintained a cracked sidewalk that caused Trujillo to trip during a late-night jog. The City filed a motion for summary judgment. Then just a few days before the hearing, the City served a section 998 offer.

At the hearing, the trial court orally granted the City’s motion for summary judgment. Four minutes later, Trujillo accepted the 998 offer, and then immediately filed the executed 998 offer.

The trial court rejected the 998 acceptance. And so did the Court of Appeal. The court held that “a still-pending 998 offer expires when a trial court orally grants summary judgment.”

I count several odd things:

1. You are supposed to get 30 days to accept a 998, but here, the court only would have given the plaintiff “a few days.”
2. The court reasoned that a 998 offer only stay in effect so long as there remains a “dispute to be resolved,” but that is not actually what the statute says.
3. What about tentative rulings? The opinion suggests a litigant may still accept a 998 offer after a tentative so long as it’s before the oral ruling.
4. Why didn’t the court accept the argument that an MSJ hearing is akin to the “commencement of trial,” and thus the 998 offer filed less than 10 days before that time was never valid in the first place?

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.

Where’s the Harm?! & Other October 2022 Cases

Every attorney knows that to reverse an order, it’s not enough to prove error. You also have to prove the error harmed your client. But when the Court of Appeal in Trujillo v. City of Los Angeles reversed a sanctions order for the reason that the offending party was not given the full 21-day safe-harbor period (motion was filed a day early), the court did not explain why the one extra day would have mattered.

What’s going on here?

Jeff and Tim also discuss some other nuts-and-bolts cases that attorneys should bookmark:

• All defamation lawsuits involving the management of publicly-traded companies are not necessarily SLAPP-able as arising from a public issue. (Heffernan v. Bilzerian.)
• The 21-Day Safe Harbor Means 21 Days: Motion Filed Day 21 Is Too Early.
• Don’t Seek Default Without Notifying Opposing Counsel.
• Oral MSJ ruling cuts off ability to accept 998 offer. (Trujillo v. City of Los Angeles.)
• Forwarding email to hotel clerk to print destroys the privilege.
• Good recap on recent church-and-state showdowns: Covid-restrictions on churches are likely unconstitutional where secular establishments are exempted.

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.

________________________

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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