Not To Be Published (3/14/23)

tl;dr:

-- 3 Judgment-Collection Tips Focusing on the Debtors’ Paramours, IP, and Their Little Dog, Too.

-- Random Violence to Appellate Procedure.

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

-- HOA May Go Forward with Representative Action for Construction Defects.

-- New Cal.App.Law.Pod episode w/ Legal-Writing Mentor John Nielsen Compares CA and UT Courts.

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

3 Judgment-Collection Tips Focusing on the Debtors’ Paramours, IP, and Their Little Dog, Too

When you are trying to enforce a judgment, you may be tempted to seize special personal property, like mementos, or the beloved family pet. But while these are personal property, if they do not have significant value, it will be seen as an improper purpose. So that might not be a good strategy.

But judgment-enforcement attorney Joseph Chora suggests a couple of good collection practices:

??Does the debtor have a girlfriend? Set the examinations for the debtor, his wife, and his girlfriend all on the same day. You may find that the examinations will quickly become unnecessary.

??Does the debtor have valuable intellectual property? The creditor may be able to acquire the IP for nominal value, depriving the debtor of its golden goose. In one case, Joseph relates, this resulted in settling the judgment for 125% of its face value!

Watch the clip here: https://lnkd.in/gVbs3Svj

This is a clip from episode 46 of the California Appellate Law Podcast. Listen to the full episode here: https://lnkd.in/gq_9_u35

Random Violence to Appellate Procedure

Two clearly untimely appeals—and I use “clearly” advisedly here—were not dismissed. If appellate deadlines are jurisdictional, then how to explain this?

Because the judgment was affirmed anyway, you answer? Well, I say, if the court is going to affirm anyway, then why not dismiss as the jurisdiction rules require? Otherwise, is this not just random violence to the rules of appellate procedure?

Jeff has a different view. Here is the Jeff Lewis hypothesis for the utility of complicated appellate rules: relaxing the machinery of arcana is how appellate judges show sympathy to deserving litigants without changing the actual outcome.

But regardless, the no-harm-no-foul excuse only applies to one of the cases. The other case we discuss ended in reversal. How did the court explain how it could possibly reverse a judgment based on an untimely appeal? Simple: It ignored the issue.

Are these cases just exceptions to the normal operation of the rule of law? Of course. But remember: because the sovereign decides the Exception and when, the sovereign is not, in the end, subject to the Rule of Law except, in the final analysis, by the sovereign’s consent. The Rule of Law, then, becomes merely a slogan.

Watch the clip here: https://lnkd.in/g9edmR4c

This is a clip from episode 35 of the California Appellate Law Podcast. Listen to the full episode here: https://lnkd.in/g2fr6ceQ

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

CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). 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.

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.

HOA May Go Forward with Representative Action for Construction Defects

Can you appeal an order sustaining a demurrer as to less than all causes of action? No—if there is still a cause of action hanging around, the order does not satisfy the one-final-judgment rule.

But if the order sustaining the demurrer would result in a “needless and expensive trial and reversal,” then the order may be reviewed on a petition for writ of mandate.

But there was still one more problem with the homeowner’s association’s writ petition in River’s Side at Washington Square Homeowners Ass’n v. Superior Court (D3 Mar. 6, 2023 no. C095860) 2023 WL 2364423. After the trial court sustained the defendants’ demurrer on the HOA’s construction defects claims on standing grounds, the HOA filed an unsuccessful motion for reconsideration. By the time the HOA filed its writ petition, it had been 95 days since the notice of entry of the order, and 33 days after the order denying reconsideration.

So the writ petition was untimely, right? And appellate deadlines are jurisdictional, right?

No, not on writ petitions. The delay was not unreasonable.

One more useful bit from the case: Another reason the Court of Appeal readily granted writ review was that the Superior Court certified its order sustaining the demurrer under Code of Civil Procedure section 166.1, indicating that the threshold standing issue “raises a controlling question of law as to which there are substantial grounds for difference of opinion, and there was virtually no chance the case would settle until that issue is resolved.”

This factored in the Court of Appeal’s analysis in granting writ review.

If a key question of law is involved in an interlocutory order denying a demurrer, motion for judgment on the pleadings, or motion for summary judgment, consider asking the trial court to certify the question for review. You might entice the trial judge further if resolution of the issue would facilitate a settlement.

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.

Legal-Writing Mentor John Nielsen Compares CA and UT Courts

Appellate attorney John Nielsen is forever grateful to his mentors when he was a young attorney, and he pays it forward now both as a mentor himself and by offering tips on legal writing published at the Appellate Advocacy Blog. John discusses his approach to training young associates, and to legal writing.

Then we turn to how Utah differs from California in civil and appellate procedure, including:

?? Unlike CA, the UT Supreme Court promulgates its own rules that govern the courts.

?? Perhaps as a result, in UT there is no court-reporter crisis. Instead, proceedings are electronically recorded. If you need a transcript, a court reporter will transcribe the recording. (This is an important #AccessToJustice issue.)

?? Unlike CA, UT appellate decisions are binding on the appellate court. The court can overrule its past decisions, but it cannot just ignore them, as often happens in CA.

?? Unlike CA, all UT appellate opinions are published.

?? Unlike CA, UT appellants are not entitled to a reasoned opinion on affirmance—which is why many appeals are disposed of by order.

And in true appellate-nerd fashion, during the Lightning Round John and Tim briefly debate the exceptions to using ‘s to make possessives of certain words ending in s.

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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