Not To Be Published (3/28/23)

tl;dr:

-- Can You Read It Back? Tackling Court Reporter Scarcity in California.

-- “The Law That Swallowed California”.

-- The 60-day appellate deadline runs from mailing—receipt is irrelevant.

-- New Cal.App.Law.Pod episode w/ Top Tips for Respondents on Appeal to Get Your Judgment Affirmed.

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

Can You Read It Back? Tackling Court Reporter Scarcity in California

CEB has published my CLE presentation, “Can You Read It Back? Tackling Court Reporter Scarcity in California.” You can watch the presentation here (though you will need a subscription): https://lnkd.in/gWj5xqSH.

I discuss why there is a shortage of court reporters, why an oral record is indispensable to preserving appellate rights, and then demystify the settled-statement and agreed-statement procedure and offer practical applications.

The entire presentation may be summed up as: Get a court reporter….but if you can’t, here’s what to try instead.

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

“The Law That Swallowed California”

It has been called “the law that swallowed California.” CEQA, the California Environmental Quality Act, accomplished good things at its inception in 1970 but now it is used to thwart nearly any kind of development someone doesn’t want.

“CEQA is not intended as a population control measure,” observed the Court of Appeal in a recent CEQA case, Tiburon Open Space Comm. v. Cnty. of Marin (May 12, 2022, A159860), which rejected a neighborhood group’s efforts to stymie a development project. And yet the way it is used today suggests that “[s]omething is very wrong with this picture.”

In this clip, Peter Prows, an environmental attorney who handles a lot of CEQA cases, runs down the good, the bad, and the ugly of CEQA and the Tiburon case:

• The original “grand design” of CEQA was not to frustrate the democratic process but to promote it: projects could go forward, “but only after the elected decisionmakers have their noses rubbed in [the project’s] environmental effects, and vote to go forward anyway.”
• Matt Taibbi’s article about how CEQA, as deployed today, acts as a ****backdoor subsidy to owners of California’s existing housing stock, paid for by new entrants to the housing market (who happen also to be laboring under swelling tuition debt).
• CEQA is often used to frustrate high-density projects. But Tiburon involved a decades-long battle to thwart just 43 single-family homes. CEQA can be used as a bludgeon for anyone, so there is something to hate for everyone.

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

This is a clip from episode 50 of the California Appellate Law Podcast. Listen to the full episode here: https://lnkd.in/gjjAZz_7

The 60-day appellate deadline runs from mailing—receipt is irrelevant

Trick Question: You have 180 days to appeal if no one serves a notice of entry or a file-stamped copy of the judgment. You never received one of those documents. So you have 180 days to appeal, right?

Wrong. Or at least, you can’t be so sure. That’s what the defendants learned in Dannelley v. Wu (D4d3 Mar. 16, 2023 No. G062072) (nonpub. opn.).

They never received a notice of entry, so they appealed just under the 180-day deadline. And it was a big appeal too, over a $3.3 million default judgment.

But the plaintiffs had served a notice of entry. They mailed it to the addresses the defendants had on file. And they did so just a few days after entry of judgment, about five months before the defendants filed their appeal.

But we never got the notice of entry! said the defendants.

Nope. Receipt doesn’t matter. The 60-day clock runs upon deposit into the mail. "[T]he risk of failure of the mail is on the addressee[.]" (Meskell v. Culver City Unified School Dist. (1970) 12 Cal.App.3d 815, 824.)

Doesn’t this rule invite abuse? Would it allow a prevailing party to prepare a false notice of entry and proof of service, without any recourse? The court suggests that such allegations may be given ear, but not here, because the defendants did “not claim any irregularity,” such as “fail[ing] to mail the notice,” or that the addressees were incorrect.

The Upshot:

The best practice is to assume the deadline to appeal is 60 days from entry of the judgment. You can never prove the negative proposition that a clerk or another party never deposited a notice into the mail. So the date of entry is the only date you can confirm with any certainty. Take that, add 60 days, and mark it on your calendar with a fat-tip Sharpie.

Thanks to Ben Shatz for blogging this case: https://bit.ly/407U376

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.

Top Tips for Respondents on Appeal to Get Your Judgment Affirmed

As the prevailing party defending an order on appeal, you know the odds are in your favor. Statistically, 75-80% of judgments are affirmed on appeal. But 25% is still worse odds than Russian Roulette.

So on this episode of the California Appellate Law Podcast, Jeff and I discuss some tips to seize maximum advantage of your superior position on appeal. The tips include:

?? Appellants often appeal from non-appealable orders. Or they file their notice of appeal untimely. Check for these grounds for a motion to dismiss.

?? Enforce the judgment, unless it is clearly stayed. Enforcement can put a lot of pressure on an appellant.

?? Are there record defects? Jeff and I debate the different approaches. You can either counter-designate to add missing items, or you can argue that the appellant failed its burden to furnish a complete record.

?? Help out the trial court’s reasoning. A judgment is appealed for its result, not its reasoning. If there are reasons the trial court didn’t think of, raise them in your respondent's brief.

?? Did the appellant fail to cite authority? Was the opening brief scattershot without clear organization or well-developed arguments? You might argue that these poorly identified issues and arguments are forfeited.

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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