Not To Be Published (5/16/23)

tl;dr:

-- No reporter's transcript, no problem: denial of motion to compel arbitration still reversed on appeal.

-- Early filing deadlines coming, poor bar bass rate, and Maxine Waters loses her SLAPP appeal: Legal News for May 11, 2023.

-- City law held unconstitutional? Just amend! “See how easy it is to be a city attorney?”.

-- When it comes to writs of administrative mandamus, the appealability rules are confused.

-- New Cal.App.Law.Pod episode w/ From BigLaw to Solo: Carl Cecere on the freedom to take significant cases.

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

No reporter's transcript, no problem: denial of motion to compel arbitration still reversed on appeal

I have previously noted that California appellate courts ought to change their practice of requiring an oral record when the appellant does not seek review of any factual findings. Appellate justices are openly split on this point.

On the side of relaxing the requirement of having an oral record, there is good news from Guzman v. Front Porch Communities and Services (D2d3 May 5, 2023 No. B314877) 2023 WL 3265696 (nonpub. opn.). The appellant there did have a reporter's transcript. But the appeal involved only a pure question of law. So the lack of an oral record did not affect review.

The Upshot: If you find yourself without a reporter's transcript, consider whether you have a good appellate issue based on a pure issue of law. But like the respondent did here, you will have to accept all the trial court’s factual findings, including any implied findings.

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Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

Early filing deadlines coming, poor bar bass rate, and Maxine Waters loses her SLAPP appeal: Legal News for May 11, 2023

Here are some legal trends and trivia from the week ending May 11, 2023:

?? 5:00 filing deadlines coming! The Third Circuit adopted a rule that requires filings be submitted by 5 pm on the due date. Watch for other circuits to possibly follow suit.

???SCOTUS oral arguments are, like, way long. One Supreme Court practitioner pines for the old days of 30-minute arguments. Now they can be over 3 hours.

??The press don’t get law. Supreme Court says a lawsuit based on a public-construction contract can go forward, but a headline reports that the Court declared the contract invalid.

??Defamation complaint against Maxine Waters for falsely saying her opponent was “dishonorably discharged” can go forward after Court of Appeal reverses her anti-SLAPP victory.

?? Should I include a stand-alone “introduction” section in my brief? Apparently there are jurisdictions that do not allow them. Otherwise, the answer is always the same: Yes.

? CA Bar Exam pass rate = 32.5%

?? The Supreme Court denied review to a would-be lawyer’s attempt to force the State Bar to allow him to take the bar exam. James Camper III was excluded from the exam because he didn’t have his law degree; his law school was withholding his degree due to his failure to repay a loan issued by the school for tuition and fees.

#AppellateLinkedIn

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.

City law held unconstitutional? Just amend! “See how easy it is to be a city attorney?”

Sometimes you CAN beat city hall. But the city, even after a court loss, can still win.

Municipal law attorney Peter Prows discusses strategies to keep in mind if you ever go up against the city.

The key takeaway: Once its made up its mind to do something, a city (or agency or whatever) will keep trying until it gets its way. So if you sue the city, don’t bring a claim that is easy for it to fix. You want to prevail on a claim that will constrain its discretion the next time around.

Even Supreme Court Justice William Brennan remarked on how difficult it is to beat a city attorney, in this passage, quoting a city attorney giving advice to colleagues at a conference of the National Institute of Municipal Law Officers in California:

"IF ALL ELSE FAILS, MERELY AMEND THE REGULATION AND START OVER AGAIN. "If legal preventive maintenance does not work, and you still receive a claim attacking the land use regulation, or if you try the case and lose, don't worry about it. All is not lost. One of the extra 'goodies' contained in the recent [California] Supreme Court case of Selby v. City of San Buenaventura, 10 C.3d 110, appears to allow the City to change the regulation in question, even after trial and judgment, make it more reasonable, more restrictive, or whatever, and everybody starts over again. . . . . . "See how easy it is to be a City Attorney. Sometimes you can lose the battle and still win the war. Good luck."

(San Diego Gas & Elec. Co. v. City of San Diego (1981) 450 U.S. 621, 655 n.22 (Brennan, J., dissenting) (quoting Longtin, Avoiding and Defending Constitutional Attacks on Land Use Regulations (Including Inverse Condemnation), in 38B NIMLO Municipal Law Review 192–193 (1975)).)

Watch the clip here: https://lnkd.in/gnWF4zyU

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

When it comes to writs of administrative mandamus, the appealability rules are confused.

When challenging an agency action via a writ of administrative mandamus, the trial court’s ruling is the appealable order. If you are going to appeal, do not wait around for a judgment, or you could be too late.

But that is not what happened in the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The case involved allegations that a sheriff’s deputy, Kelly Kent, failed to properly act on allegations of sexual misconduct against a correctional officer at the county jail. The Civil Service Commission overruled the sheriff’s demotion, and instead imposed a three-day suspension. The sheriff and the county filed a petition in the Superior Court for administrative mandamus.

After a hearing, the court granted the writ via minute order, ordering the commission to set aside its decision and demote Kent rather than suspend him. That was in November 2021.

But three months later in February 2022, the court entered its statement of decision. Kent appealed from the statement of decision on March 4.

So which was the appealable order? Last year in Meinhardt v. City of Sunnyvale (2022) 76 Cal.App.5th 43, the court held that an order on a writ of mandamus was the appealable order—waiting for a later judgment was too late. (But the Supreme Court granted review in Meinhardt.)

And a statement of decision ordinarily is not an appealable order.

Here is how the Sixth District came down:

“[W]e are satisfied that the trial court's February 1, 2022 statement of decision determined the rights of the parties and disposed of all issues in this case, constituting a final and appealable judgment.

Comment: These cases that conclude that orders that ordinarily are not appealable—like orders sustaining demurrers, orders granting summary judgment, or statements of decision—are appealable, should make you nervous. When the courts are consistent that such orders are not appealable, there is no need to worry about taking an appeal from them: you know you need to wait for a final, appealable order. But when courts hint that they MIGHT be appealable, you need to consider taking an appeal, in an abundance of caution.

Let’s hope the Supreme Court gives some guidance when it takes up the appealability of orders on administrative writs of mandamus in Meinhardt.

This is a summary. Read the full article at the tvalaw.com blog here. 

Watch the clip here: https://lnkd.in/g6t6hcTg

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

From BigLaw to Solo: Carl Cecere on the freedom to take significant cases

Opioids, takings, terrorism—these are at the core of a few of the cases that appellate attorney Carl Cecere is handling. After deciding to leave BigLaw, Carl found that a combination of Twitter and lots of travel with the purpose of meeting interesting colleagues has fueled a pipeline of provocative cases into his solo practice.

We discuss:

• Clerking for Mary Lou Robinson, who started her judicial career when women still were not allowed to vote or own property
• The Purdue opioid case, and the trend of using bankruptcy to shield liability. Reading the BK code textually may reign this in—one good thing about the judicial approach of the current SCOTUS composition.
• The Sokalow case in which Congress extended the courts’ jurisdiction over terrorism cases by creating a presumption of consent to jurisdiction—a presumption now being taken up by the 2nd Circuit.

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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