Not To Be Published (1/31/23)

tl;dr:

-- No notice of appeal means no appeal, sorry, no exceptions…except the court really wanted to reach the merits in this case

-- Corp VP testimony about 50-year-old corp decisions is hearsay, and there’s no “corporate representative” or PMQ exception to hearsay. SJ reversed.

-- Do normal workplace rules apply in special places like Hollywood & courts? Not really, but they should.

-- New Cal.App.Law.Pod episode w/ Latest Trends in Defending Unfair Competition Claims, with Greg Nylen.

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

Clerkships are uniquely valuable, so do normal workplace rules apply?

Even judicial clerks face harassment and discrimination by their judge-employers. Aliza Shatzman knows this first hand, and it’s why she started the Legal Accountability Project. But how can we achieve accountability in such a strange place as a court?

Judicial jobs are not like normal jobs. Former Supreme Court clerks command signing bonuses in the stratosphere of $400,000 or more. Similarly, over 80 former staffers in Senate Maj. Leader Chuck Schumer’s office are now working in Big Tech. The Hill is not exactly where you go looking for top coders.

The value of working for a judge—like the value in working with Harvey Weinstein—is the value of the connections. So some people take the attitude that these jobs are a privilege, and those who get them should suck it up and not complain.

Do normal rules apply to these privileged workplaces—like Hollywood, or courts?

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

This is a clip from episode 39 of the California Appellate Law Podcast. Listen to the full episode here:?https://lnkd.in/gc6_aH5w

Judges and law schools must do more to protect law clerks

Aliza Shatzman ’s dream of a judicial clerkship turned into a nightmare. Just to get the experience, and the career credit, of a judicial clerkship, Shatzman would have put up with her judge calling her “bossy” like his wife, and telling her he preferred the company of her male co-clerk. But then her judge terminated her clerkship early—and gave her a negative reference—because, he said, she made him uncomfortable and she “lacked respect” for him.

Her HR complaint? Shatzman was reminded judges are special people and HR doesn’t have any control over them. What about the misbehaving judges’ colleagues? “Judges are notoriously unwilling to discipline their own.”

As for judicial complaints, they are routinely mishandled, and this mishandling sends the message: suffer in silence—don’t bother sending up further complaints.

In this clip from episode 39 of the California Appellate Law Podcast, Aliza Shatzman shares the origin story of the Legal Accountability Project, and why misbehaving employers need to be held accountable—even when the misbehaving employer is a judge.

Watch the clip here:?https://lnkd.in/g5APtPym

This is a clip from episode 39 of the California Appellate Law Podcast. Listen to the full episode here:?https://lnkd.in/gc6_aH5w

Summary Judgment Not Appealed, But Reversed Anyway

What happens when the unmovable object—here, a jurisdictional limit—meets an unstoppable force—here, the liberality doctrine. We find out in Magyar v. Kaiser Permanente Medical Center (D2d2 Jan. 23, 2023 No. B315353) 2023 WL 355173 (nonpub. opn.): the unmovable object gave way. And so the plaintiff, who lost on summary judgment and forgot to appeal the judgment, got it reversed anyway.

What happened was there were two summary judgments, entered six days apart. The plaintiff appealed from the first, but apparently neglected to appeal from the second. The court said that, ordinarily, this means that the second judgment was outside the court’s jurisdiction to review. But under the “liberality doctrine,” the court inferred the plaintiff intended to appeal from both, because there was “nothing that would logically and conclusively demonstrate plaintiffs intended to appeal solely from one of the judgments.”

This is about the broadest application of the liberality doctrine that I’ve seen. And it starts from the assumption that all judgments are contained in the notice of appeal unless something in the record “logically and conclusively demonstrate[s]” otherwise. That seems off to me.

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

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y .

There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness

A trial court relied on a hearsay declaration when it granted summary judgment to Avon in this talcum-powder case alleging asbestos-exposure. There is a growing consensus that trial court rulings on evidence are reviewed under the more lenient abuse-of-discretion standard, even on summary judgment. And Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915) supports that consensus.

But the court still reversed. There are limits to what qualifies as evidence that can shift the burden of proof in the summary judgment context to the nonmoving party.

The important thing to take away from the published Ramirez opinion is that corporate litigants cannot get around hearsay and foundation problems by designating their witnesses “corporate representatives” or “persons most qualified.” These are deposition tools, not end-runs around the rules of evidence. As the court put it:

“There is no special category of “corporate representative” witness, as the trial court suggested. There is no exemption from the Evidence Code for a witness who has conducted an “independent review,” whatever the trial court meant by that phrase.”

Comment: The opinion is not clear how the trial court “abused its discretion,” as opposed to merely commit legal error, **in overruling the hearsay and foundation objections to Avon’s evidence—other than that the evidence was, in fact, hearsay and devoid of foundation. The upshot is that the distinction between de novo and abuse of discretion when it comes to evidentiary rulings may come down to more of a mood or nuance than a legally measurable difference.

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

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y .

Latest Trends in Defending Unfair Competition Claims, with Greg Nylen

With his background as a brewery owner, business litigator Greg Nylen defends attorneys from “the triumvirate” of unfair-competition claims: the Unfair Competition Law, the False Advertising Law, and the Consumer Legal Remedies Act. Greg shares some trends, tips, and traps emerging in this space, including:

?? Courts are getting a bit more stringent on the “reasonable consumer test”—the determination whether a large portion of the target market is likely to be misled. Does “krab meat” come from crab? Are rumors that outlet stores carry nowhere-to-be-found merchandise actionable? Increasingly, the courts’ answer to these questions is: Come on.

?? But the “reasonable consumer” depends on what the product is. King’s Hawaiian bread is actually made in Torrance, CA. Does that matter? Probably not, because bread is bread. But what if the product was beer—where consumers may have more discriminating tastes, and the quality of the water matters to the product? The answer might change.

?? The “reasonable consumer” is often determined as a matter of law. So plaintiffs’ strategy is to rely on consumer surveys, to make the determination factual in nature. Does it work? As Greg explains, you may be able to attack the survey as a matter of law.

?? Litigation consumer claims in federal court? Beware of Article III standing. And bookmark the Sonner v. Premier Nutrition case—plaintiffs might not be able to get both legal and equitable relief in federal court.

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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