Not To Be Published (5/02/23)

tl;dr:

-- Anti-SLAPP denials are appealable in the 9th Cir., but they shouldn’t be, says Judge Bress.

-- Use photos in your advocacy, but don’t overdo it.

--?CEB has my article, What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal.

--?File-stamped signed order triggers the 60-day deadline to appeal, even if the file-stamp itself isn’t signed.

-- New Cal.App.Law.Pod episode w/?Untimely & Defective Notices of Appeal: April 2023 Cases & Tidbits.

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

Anti-SLAPP denials are appealable in the 9th Cir., but they shouldn’t be, says Judge Bress

The film production in which a prop-gun-wielding Alec Baldwin fatally shot the cinematographer spun off a civil lawsuit in Salveson v. Kessler (9th Cir. Mar. 29, 2023) 22-55472 (nonpub. opn.). But as the 9th Circuit holds, the civil case—involving a producer’s claims concerning his former lawyer’s business and tax practices—holds out no issues of public interest.

So uninteresting were the claims, in fact, and so devoid of protected conduct, that Judge Bress separately concurred to muse why this appeal should have sucked up a year of everyone’s time, while the case languished under a pointless appellate stay.

Judge Bress pointed out that the anti-SLAPP law, and the immediate right to appeal from denials of anti-SLAPP motions, are procedures specific to California law. The 9th Circuit has its own procedures, and under those procedures, there is no immediate right to appeal from SLAPP denials. (There is no federal SLAPP procedure at all, for that matter.)

“This piecemeal appeal, which our precedents unjustifiably allow, has resulted in a totally meritless anti-SLAPP motion delaying this litigation by nearly a year. That is neither sound as a matter of law nor sensible as a matter of litigation management.”

The 9th Circuit rule here—allowing immediate appeals and appellate stays after denials of anti-SLAPP motions—may be modified only upon U.S. Supreme Court decision or by the 9th Circuit sitting en banc. It is safe to say that Judge Bress is a reliable vote to overturn the rule.

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.

Use photos in your advocacy, but don’t overdo it

“Give your listener one thing to do at a time,” says appellate attorney?Stefan Love. So you’ve got a great photo to flash on the screen, or a damning quote for your jurors to read, but at the same time your jurors are supposed to be studying the photo or quote, the attorney is also talking at them.

You need to spoon-feed your listener. But use only one spoon at a time.

Watch the clip here:?https://lnkd.in/gxD2BdUh

This is a clip from episode 43 of the California Appellate Law Podcast. Listen to the full episode here:?https://lnkd.in/dRQcMsyD

CEB has my article, What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal

CEB has published my article, “What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal.” In the short article, I discuss a common confusing scenario: what happens when a judgment is reversed, but the fee award is still on appeal?

That is what happened in?Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC?(D4d3 Jul. 20, 2022 no. G059899) 2022 WL 2824967 (nonpub. opn.). Briefing in the fee appeal was still underway when the judgment was reversed. Do the parties still have to go through with the briefing and argument?

Nope. Instead, they filed a joint stipulated request to summarily reverse the attorney fee award. And the appellate court granted it.

The article is available?here.

The PDF is here.?Kowal_StipulatedReversal.pdf

My original blog post can be found?here.

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.

File-stamped signed order triggers the 60-day deadline to appeal, even if the file-stamp itself isn’t signed

The first step to determine whether an appeal is timely is to find out if there was a Rule of Court 8.104(a) “triggering document”—either a “notice of entry” or a file-endorsed (stamped) copy of the judgment showing the date of service. In McKenzie v. Alta Resources Corp. (Apr. 25, 2023 No. G061292) 2023 WL 3067690 (nonpub. opn.), the judgment of dismissal following demurrer was stamped and attached with a proof of service. But McKenzie waited more than 60 days to appeal. That was too late.

But wait! McKenzie urged that the judgment and certificate of service were defective and so could not trigger the 60-day deadline (meaning her deadline was 180 days). McKenzie raised three alleged defects with the triggering document:

1. The certificate of mailing was signed with an “illegible scribble.” Court’s response: We can read it fine. And so what if we couldn’t?
2. The file-stamp on the judgment was not signed. Response: Sorry, there is no requirement that the stamp be signed.
3. The certificate of mailing only says the proposed judgment was served, not the judgment. Response: No, it says “judgment.”

While the appellant’s effort did not succeed, she was right to look for challenges with the rule 8.104(a)(1)(A)-(B) triggering document. A lot of requirements there need to be met: (1) signed, (2) stamped, (3) proof of service, and (4) contained all in a single document. Miss any one of these and you have a good argument that the 60-day deadline has not been triggered. (This is why a Notice of Entry is a far cleaner triggering document.)

But the document here checked all the boxes. Untimely appeal dismissed.

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.

Untimely & Defective Notices of Appeal: April 2023 Cases & Tidbits

On this April 2023 cases & tidbits episode, we warn about several cases where an appeal is lost because of failure to appreciate the appellate deadlines—which are often tricky to determine:

?? Zen riddle: If you never received a Notice of Entry or stamped order, then does the 60-day deadline begin to run? Answer: Upon mailing. (It is possible you will never receive it—but that doesn’t affect the deadline to appeal!)

? An appeal can be filed up to midnight on the 60th day. But not a second after! Appeal filed at exactly 12:00 a.m. is the 60th day. One minute late might as well be a year late.

?? A file-stamped order is a “triggering document” that starts the 60-day clock. But what if only the certificate of mailing is stamped? No good—the 60-day clock isn’t triggered.

?? What if the order is stamped, but the stamp isn’t signed? There’s no such requirement—your 60 days still runs.

Also: Justice Yegan will follow precedent on resentencing “lemming-like,” but is going to “kick and scream on my way down to the rocks below”; CA Ct. App. overrules SCOTUS, arb denials might no longer be stayed pending appeal.

Listen to the podcast here.

Video clips from the podcast are available here.

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_______________________

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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