Not To Be Published (2/28/23)

tl;dr:

-- Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely.

-- "Is it going to matter?” Justice Zelon’s big criteria on writ petitions.

-- How to Resurrect a Dismissed Appeal Even After It’s Too Late.

--?A piecemeal notice of judgment is not sufficient to trigger the 60-day deadline to appeal.

-- New Cal.App.Law.Pod episode w/ Ten Trial Tips That Appellate Specialists Want You to Know.

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

Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely

After getting hit with an anti-SLAPP fee award, the plaintiff in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.) filed a notice of appeal. McKenna had already filed the order granting Sony’s anti-SLAPP motion based on alleged misappropriation of the likeness of the late actor Christopher Jones in the Quentin Tarantino Film Once Upon a Time … in Hollywood.

To file the notice of appeal, the attorney logged on to the e-filing system late in the evening of the appellate deadline. Like, really late—at 11:52 p.m. Owing to a reportedly “slow connection,” the notice of appeal was not file-stamped until 12:00 a.m. That is, the day after the deadline.

One minute late.

The plaintiff also had a second problem: the notice of appeal did not identify the order being challenged on appeal, or the name of the appellant, and so the clerk rejected the notice of appeal for that reason. So the morning after the deadline, the plaintiff filed a motion to amend the notice of appeal to correct those errors. The plaintiff also explained the e-filing problems.

But the Court of Appeal still dismissed the appeal.

This case applied the rule providing for relief for e-filing mishaps much more narrowly than another recent case in Garg v. Garg (D4d3 Sept. 7, 2022 No. G061500).

And it also declined to invoke the doctrine of liberality, which the same Second District invoked—rather liberally—in its recent decision in Magyar v. Kaiser Permanente Medical Center (D2d2 Jan. 23, 2023 No. B315353).

So when it comes to invoking the rules that might relax the deadline to appeal, your mileage may vary. Do not count on them.

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.

"Is it going to matter?” Justice Zelon’s big criteria on writ petitions

“I know the sting of a loss as well as anyone,” says Justice Laurie Zelon, but if the course of the case is really not going to change, writ relief is highly unlikely.

If the issue is going to be dispositive of the case so that the case would have to be retried, however, that is a good candidate for a writ. “The court does understand that the last thing you want to have happen is to have a case get fully tried and then retried.”

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

This is a clip from episode 48 of the California Appellate Law Podcast. Listen to the full episode here:?https://lnkd.in/gYC6Cm4J

How to Resurrect a Dismissed Appeal Even After It’s Too Late

This will probably never happen to you, but in case your appeal is dismissed and you are late in filing your motion to vacate the dismissal to reinstate the appeal, consider asking the Court of Appeal for a favor like in Sidney v. Riley.?The Court of Appeal asked the Supreme Court to grant review and transfer the case back.

In Sidney, the appellant’s opening brief got kicked for defects, and the appellant failed to refile on time. So the court dismissed the appeal. The court can vacate a dismissal and reinstate the appeal, but only so long as it retains jurisdiction. After 30 days, the Court of Appeal loses jurisdiction. Here, the docket indicates the motion was filed "[o]n November 15, 2022, at 12:52 a.m., a day after this court's jurisdiction ended."

But even though it no longer had jurisdiction, the court still did the appellant a favor. Division 2 asked the Supreme Court to grant review on its own motion and transfer the case back, "to allow this court to act on appellant's motion."

And the Supreme Court obliged.

Thanks to David Ettinger for this tip.

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.

A piecemeal notice of judgment is not sufficient to trigger the 60-day deadline to appeal

So you think you know how to determine the deadline to file your notice of appeal? You can test your abilities using the facts of Castillo v. McCreary (D2d3 Feb. 21, 2023 No. B317493) 2023 WL 2131341 (nonpub. opn.).

On September 3, 2021, the trial court entered a minute order imposing discovery sanctions against the defendant’s attorney totaling $6,577. That is more than $5,000, so it is appealable. (Code Civ. Proc., § 904.1(a)(12).)

The minute order was not file-endorsed. But it attached a certificate of mailing, which was filed-endorsed.

The default deadline to take an appeal is 180 days. (Cal. Rules of Ct., rule 8.104(a)(1)(C).) But a file-endorsed order showing the date it was served triggers the 60-day deadline to appeal. (Cal. Rules of Ct., rule 8.104(a)(1)(A).)

So was a non-stamped order attaching a stamped certificate of mailing a triggering document under rule 8.104?

Close call, but no, held Castillo. Under Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, the court may treat the order and certificate of mailing as the same document, for purposes of complying with the part of the rule that requires the order the show the date of mailing. But are they the same document such that a file-stamp on the certificate constitutes a file-stamp on the order? “[W]e are not aware of any courts to have taken that approach and we decline do so here.”

“Here, the trial court's minute order is not “truly” filed-endorsed.”

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.

Ten Trial Tips That Appellate Specialists Want You to Know

You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case.

And, you had better make a record on it.

On this episode of the California Appellate Law Podcast, reprising Tim’s recent CLE presentation, we cover 10 tips that appellate attorneys want every trial attorney to know:

?? The rule that contains all appellate rules: Make the Record.

??#1 Make sure your theories of the case are captured in your pleadings

??#2 Was key evidence excluded? Preserve the issue by making a proffer.

??#3 Keep objecting to evidence if the judge “defers” ruling on your MIL.

??#4 Object to Jury Instructions

??#5 Review the Verdict for Inconsistences

??#6 Request and Object to the Statement of Decision

??#7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs!

??#8 Calculate Appellate Deadlines Correctly

??#9 Avoid Common Appellate Briefing Mistakes

??#10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest)

?? Evergreen Tip: Get a Court Reporter!

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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