Not To Be Published (4/25/23)

tl;dr:

-- Appellate Tidbits: Senate to face off against court reporters, and new Notice of Appeal form coming.

-- What the heck is a protective cross-appeal, anyway?.

-- When a case turns on credibility, and there is not an oral record, do not even think about appealing.

-- A stipulated reversal on appeal may allow parties to instruct the trial court.

-- New Cal.App.Law.Pod episode w/ Should AI Replace Law Clerks? Yes, says Adam Unikowsky.

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

Appellate Tidbits: Senate to face off against court reporters, and new Notice of Appeal form coming

Here are some recent news items of interest to attorneys and court-watchers:

• ??California courts spent nearly half-billion dollars on court reporters, but that’s not enough.
• ??So if a court reporter isn’t available, SB 662 would allow electronic recordings to create the appellate record.
• ??The Judicial Council has invited comment on 6 proposed changes affecting appellate rules, including changing the notice of appeal form to allow the attorney to join the appeal (such as in appeal from sanctions against the attorney), and highlighting the requirement to specify the date of the order being appealed (so that it is not overlooked).
• ??Frustrated when a corporate defendant stays a case by appealing from a denial of a motion to compel arbitration? SB 365 would end the automatic stay for such appeals.
• ??Supreme Librarians: David Carrillo and Stephen Duvernay say that our state high court exists to maintain consistency and clarity in the law – not to correct errors.

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Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

What the heck is a protective cross-appeal, anyway?

“One more thing,” the appellate attorney darkly muses. “Be ready to file a protective cross-appeal.”

Wait, what? What the heck is that? Is this just one more way we appellate specialists try to get added to trial attorneys’ speed-dial?

Here a 3-minute explainer. Basically, just remember: if you lost a verdict but won a JNOV, think protective cross-appeal—because if you lose the JNOV, then you’re back to challenging that nasty verdict again.

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

This is a clip from episode 78 of the California Appellate Law Podcast. Listen to the full episode here: https://bit.ly/41fwcCE

When a case turns on credibility, and there is not an oral record, do not even think about appealing

After dissolving her marriage and entering a marital settlement agreement, Darya Khankin went through some old boxes and found over a million dollars in undisclosed funds she claimed were taken by her ex, Anatoly Dumov. So she moved to set aside the dissolution judgment.

But the trial court at the hearing considered the parties’ declarations as well as testimony, and concluded Anatoly’s explanation was more reasonable.

That’s “absurd”! argued Darya on appeal. But the court in Dumov v. Khankin (D6 Apr. 14, 2023 no. H050180) 2023 WL 2942989 (nonpub. opn.) noted that challenging a factual finding “requires that she demonstrate not merely that Dumov's evidence could be disbelieved but that her own evidence was “ ‘of such character and weight’ ” that she was entitled to relief as a matter of law.” That means that, to prevail on appeal, the appellant “would have to establish that no reasonable trier of fact could have failed to credit her evidence over” the respondent’s. This is almost always impossible.

To seal the deal, Darya did not provide an oral record of the hearing at which the trial court heard the parties’ testimony. “Where no [record of the oral proceedings] has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters.”

Darya noted that she was not aware that there was not a court reporter during the hearing. But that is of no moment, because when she later did become aware, she could and should have moved for a settled statement.

Comment

The appellant in this case misapprehended the principles of appellate review so badly, in fact, that it could easily have been argued that the appeal was objectively frivolous so as to support a motion for appellate sanctions. Before appealing, ask yourself if you are challenging a credibility determination. If you are, reconsider your decision.

And if in addition you had the burden of proof on the credibility determination, a trip to Vegas may be a wiser investment (and more enjoyable) than pursuing the appeal.

And if on top of all that you also do not have a record of the oral proceedings, get ready to get sanctioned.

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 stipulated reversal on appeal may allow parties to instruct the trial court

Sometimes when a case on appeal settles, the settlement will involve stipulating to reversal of the judgment. That much was no surprise in the stipulated reversal of a citizens group’s challenge to the City of Palo Alto’s utility rate structure in Green v. City of Palo Alto (D6 Mar. 27, 2023 no. H049436) 2023 WL 2644025 (nonpub. opn.).

The surprising part was that the Court also went along with the parties and issued their agreed list of instructions to the trial court on remand. And all this over a class-action settlement clocking in at less than $18,000.

The settlement would allow the city to avoid issue preclusion (about whether the city may continue charging rents for the use of general-fund assets). And, of course, the settlement would allow the plaintiffs’ attorneys to seek their attorneys’ fees.

The surprising thing about the opinion is that it directs the trial court “to consider and implement the parties' settlement in a manner consistent with the parties' settlement agreement.” This includes allowing the parties to amend the complaint (to add new claims consistent with the settlement); direct notice to the settlement class, hold a fairness hearing, and consider approving the settlement and attorneys’ fees; and finally, to enter judgment on the settlement and direct the City to comply with it.

The law imposes a presumption against stipulated reversals, and ordinarily that presumption is very difficult to overcome. (Hardisty v. Hinton & Alfert (2004) 124 Cal.App.4th 999.) Green is surprising because the court seems to give light treatment to the presumption.

The reason stipulated reversals are difficult that we do not want people to get the idea that judgments may be manipulated by private, interested litigants.

As relevant to this class action, it is possible that, as the court noted, the reasons for the settlement are valid given that nearly all the ratepayers in the city are parties, and thus will all share in the proceeds of a little more than $17,000. It is possible that that is the reason for the settlement.

But is it probable? Or it is similarly possible—even probable—that observers may wonder if many of those ratepayers wouldn’t rather let their pennies ride and try to vindicate their position that the city may not continue charging rents to its utilities. And observers might further wonder if the driving force behind plaintiffs’ stipulation was less about the $17,000, and more the forthcoming motion for PAGA attorneys’ fees.

In any event, if you are exploring settlement on appeal, do not expect to receive such light treatment as was illustrated here. Try to avoid structuring a settlement that depends on a stipulated reversal.

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.

Should AI Replace Law Clerks? Yes, says Adam Unikowsky

Adam Unikowsky, an appellate litigator with nine appearance in the U.S. Supreme Court, argues that judicial law clerks could be replaced by AI. We discuss:

?? “AI will make judges release more accurate decisions more quickly. This is good.”

?? Judges already rely on clerk summaries, so if AI produces better summaries faster, that is good.

?? AI is a mysterious black box, you say? Well, law clerks are already invisible to the public yet influence judicial decisions without any input from the litigants.

?? True, law clerks are human—but they are still often wrong. “Is it really preferable that judges receive recommendations and draft opinions from ideological 26-year-olds?”

? A writing tip: “Unclear writing usually implies unclear thinking. If something is unclear, it’s probably because I haven’t really figured it out.”

?? ?? An an oral argument tip: Don’t read from your notes. Adam relates a story when the Supreme Court stopped an advocate by asking, “Counsel, are you reading this?”

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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