Not To Be Published (2/07/23)

tl;dr:

-- Don't try to get in evidence for a corporate litigant via a “Corporate Representative” or “Person Most Qualified” Witness – there's no such thing.

-- Don't get too excited about civil theft claims: you can't establish Penal Code 496(c) merely by nonpayment of a loan.

-- Don't wait for a cost award before appealing because it won't restart your time to appeal.

-- New Cal.App.Law.Pod episode w/ PMQ Declarations, Extortion & AI Judges.

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

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

CEB has published my article, “There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness .” The article discusses Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915), which reversed a summary judgment. The corporate defendant had supported summary judgment with a “corporate representative” declaration about matters outside the declarant’s personal knowledge. The court held 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.

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Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y .

Civil theft under Penal Code 496(c) is not established merely by nonpayment of a loan

The California Supreme Court affirmed a powerful tool for civil lawyers last year in Siry Investment, L.P. v. Farkhondehpour when it held that, yes, theft by false pretenses under Penal Code section 496(c) is available in civil actions. But don’t get too cocky: as Wang v. EOS Petro, Inc. (D2d7 Jan. 13, 2023 No. B317659) 2023 WL 178372 (nonpub. opn.) observed when reversing a default judgment based on section 496(c), a plaintiff has to prove “criminal intent,” and that means more than mere nonpayment.

In Wang, the borrower-defendants took a number of loans from the lender-plaintiffs. The borrowers never made a single payment. The lenders sued, but the borrowers never answered. So the lenders got a default judgment, including attorney fees under Penal Code section 496(c).

The Court of Appeal reversed the section 496(c) claim. If all you have is an unpaid debt, that is not enough: "a mere unfulfilled promise or misrepresentation of fact is insufficient to establish an intent to steal.” (Siry, supra, 13 Cal.5th at p. 368 (conc. opn. of Groban, J.)

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 .

Do not wait for a cost award before appealing

Judgments sometimes say the prevailing party is entitled to costs. They sometimes even have a blank for the clerk to write in the amount of costs later.

But don’t wait for that to happen before appealing. That’s what the appellant did in Worsnop v. Dept. of General Services (D3 Jan. 24, 2023 No. C091167) 2023 WL 369440 (nonpub. opn.). By the time the costs were awarded, the deadline to appeal had run. So the appellant’s appeal was dismissed.

Readers might recall that last year I covered the Second District case of Pelter v. 1-800-Get-Thin, Inc. (D2d1 May 11, 2022 no. B307771) 2022 WL 1485533 (nonpub. opn.), involving a near-identical situation. The respondent moved to dismiss the appeal, presumably based on the same principles cited in Worsnop—an amendment that merely adds costs does not resurrect the time to appeal.

But the Second District not only denied the motion to dismiss, but shot back at the respondent: “No principle or authority supports the argument—Pelter's notice of appeal specifically references only the later, amended judgment.” That was the entirety of the analysis on the issue.

The Pelter decision was wrong. The Worsnop opinion is right.

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 .

PMQ Declarations, Extortion & AI Judges

On this cases-and-tidbits episode, Jeff Lewis and I discuss:

• Ramirez v. Avon Products : There is no “corporate representative” or PMQ exception to hearsay and foundation objections. So summary judgment had to be reversed.
• Flickinger v. Finwall : Do you ever worry your prelitigation demand letters may be construed as extortion? I mean, Flatley v. Mauro shows the letter has to be really bad, but some judges find extortion where there isn’t any. That can be chilling. Which may be why the Court of Appeal published this recent opinion finding no extortion, thus reversing the trial court.
• Are DVRO or CHROs prior restraints on speech? Czodor v. Luo (Jan. 10, 2023, G060756) suggests narrowly tailoring the restrained speech to statutory abuse.
• Could AI tell the difference between extortion and a permissible demand letter? We discuss one attorney’s proposal that judges replace their law clerks with AI .
• Mitchell v. Mitchell (Jan. 27, 2023, A164780) reminds us that attacking trial court or opponent is not a viable strategy.

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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