Not To Be Published (4/04/23)
tl;dr:
-- Use a settled statement to fill gaps in your record (but don’t try to rewrite the record).
-- Oral record on appeal was required to review the validity of a trustee notice to beneficiaries.
--?Excessive information leads to worse, not better, arguments.
--?$37k in discovery sanctions appealable, but not the related issue sanctions.
-- New Cal.App.Law.Pod episode w/?Top Tips for Respondents on Appeal to Get Your Judgment Affirmed.
-- A special edition of the California Appellate Law Podcast will release on Thursday.
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
Use a settled statement to fill gaps in your record (but don’t try to rewrite the record)
Nice try, but this is not what a settled statement is for.
On appeal from the denial of his motion to set aside the judgment in Rok Mobile, Inc. v. Brannon (D2d2 Mar. 24, 2023 No. B308642) 2023 WL 2621771, Brannon came up with a clever application of the settled statement process. Remember that a settled statement is a summary description of the documents or oral proceedings in the trial court. Brannon put together a settled statement that said he never got notice of the October default. This, Brannon hoped, would be good grounds to get the default judgment vacated.
But the settled statement contradicted the declaration of Rok's counsel in the written record. Rok’s counsel declared under penalty of perjury that he mailed Brannon the default the day the court clerk entered it. So the court concluded “We reject this use of the settled statement.”
Besides, the court went on, “nonreceipt of the notice [of default] shall not invalidate or constitute ground for setting aside any judgment.” (Code Civ. Proc., § 587; Rodriguez v. Henard (2009) 174 Cal.App.4th 529, 537.)
Comment: You should still consider the appellant’s example here and use a settled statement to fill gaps in your appellate record. Do not use a settled statement to try to rewrite the record, of course. But if documents or an oral transcript are not available to clearly show what happened, consider using a settled statement.
Some good possible applications of a settled statement:
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.
Oral record on appeal was required to review the validity of a trustee notice to beneficiaries
We are in the middle of a nationwide shortage of court reporters. Probate departments recently have stopped providing court reporters. California needs 2,750 new court reporters to fill its gap. One thing that would help would be for the appellate courts not to insist on an oral record where it’s pretty clearly unnecessary.
I wonder if that might be the case in Kendrick v. Wyckoff (D1d3 Mar. 21, 2023 No. A165494) 2023 WL 2592029 (nonpub. opn.). Wyckoff, a trust beneficiary, challenged the validity of a trust amendment. He claimed the trustee’s notice to beneficiaries under Probate Code 16061.7 was invalid. That sort of thing is normally determined just by looking at the documents.
But the Court of Appeal said it would not review the issue unless it had an oral record of the hearing. No oral record meant the order had to be affirmed: “Without a record of any evidence received” at the hearing, “we must presume the evidence supports the trial court's findings and its resulting orders were appropriate based on those findings.”
Comment:
The requirement that an oral record be supplied already imposes difficult technical and administrative burdens on less well-heeled litigants, but especially so given the court-reporter shortage. If the respondent indicates in its brief that, yes indeed, evidence was taken at the hearing, that is one thing. But where no party indicates there was any oral evidence taken, the appellate courts should stop letting their imaginations run away with 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.
Excessive information leads to worse, not better, arguments
You have an avalanche of evidence for your upcoming trial. Document after document, email after email, photo after photo, and witness after witness promise to bury your opponent.
But are you overdoing it? Appellate attorney Stefan Love, drawing on the lessons from John Blumberg’s Persuasion Science for Trial Lawyers, notes that “we can’t hold on to that much information at once.”
We also relate one of the studies in Blumberg’s book about some study participants who were given a series of numbers to remember and report to scientist with a clipboard at the end of the hall. The first group did fine, but the second group were confronted with one extra bit of information before they reached the fellow with the clipboard. With brains already filled to the brim, the last bit of information made the earlier information spill out.
领英推荐
Lesson: There is such a thing as too much evidence. Consider carefully what it is going to take to persuade, and then stop.
Watch the clip here:?https://lnkd.in/gYJdv5jk
This is a clip from episode 43 of the California Appellate Law Podcast, available at?https://lnkd.in/dRQcMsyD.
$37k in discovery sanctions appealable, but not the related issue sanctions
Discovery orders can sometimes be devastating. But are they appealable? Rarely. But under the appealability statute, CCP 904.1, sanctions orders greater than $5,000 are appealable.
That gave the defendants in Deck v. Developers Investment Co., Inc. (D4d3 Mar. 24, 2023 No. G061287) ___ Cal.Rptr.3d ___ an idea. The defendants got hit with issue sanctions for their “blatant disregard of discovery and discovery orders.” Although the issue sanctions were “potentially case-dispositive,” their were not appealable. But the court also had imposed $37,575 in monetary sanctions, which were appealable. And they related to the same conduct, so won’t the Court of Appeal have to resolve all the issues at once?
Close, but no dice.
The court noted that there is a limited exception to permit review of a discovery order as part of an appeal from an order directing payment of monetary sanctions greater than $5,000. But the issues underlying the orders have to be based on the same conduct and they have to be “inextricably intertwined.”
Here, the money sanctions and issue sanctions were based on the same conduct. But they were not inextricably intertwined. Here is how the court concluded: “The appeal from the order imposing monetary sanctions therefore can be examined and resolved independently of the order imposing issue sanctions. Put another way, we can, and do, resolve the issue of the propriety of the monetary sanctions without also resolving the propriety of the issue sanctions.”
The Upshot: Interlocutory appellate review of a discovery order usually is going to require a writ. But those are tough in any case, and especially in a case like this where the court-appointed discovery referee commented that, in his almost 20 years of service as a neutral, mediator, arbitrator, and referee he had never seen “such blatant disregard of discovery and discovery orders.”
Courts do not like discovery disputes, and that includes appellate courts. So once something like this has made it into the record, the chances of getting any extraordinary relief from the Court of Appeal are going to be vanishingly remote.
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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