December 2016 Plaintiff magazine · 2016-11-30 · From To Kill a Mockingbird to finding success...

2016DECEMBER

THE MAGAZINE FOR NORTHERN CALIFORNIA PLAINTIFFS’ ATTORNEYS

ProfilesRJ WaldsmithFrom To Kill a Mockingbird to finding successin the courtroom through technology

10 common mistakesin appellate procedure— Donna Bader

Don’t let your motion for new trial sinka potential for appeal— Jerry Clausen

The court granted summary judgment:Now what?— Valerie T. McGinty and Daniel U. Smith

You just got SLAPPed: What next?— Holly Boyer and Joseph Persoff

Tips from the bench on bringing and prevailing on your motions— Hon. Holly J. Fujie

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Trial PracticeLegislative intent: How to read“Procrustean reasoning”— Elinor Leary

Appellate ReportsNickerson v. Stonebridge Ins. Co.Affirms punitive-damage award 10 timesthe amount of compensatory damages

Did your judge just “Google it?”A look at judges’ use of the internet

for independent research— Gary Simms

Appeals&Law and Motion

The Magazine forNorthern California Plaintiffs’ Attorneys

December 2016 issue

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BY GARY SIMMS

As advocates for plaintiffs in the trialand appellate courts, we are accustomedto presenting evidence for our clientsand to responding to evidence presentedby our opponents. And it is only the evi-dence presented in court that can prop-erly be considered. Indeed, as we know,the standard admonition to jurors is toreach “a verdict based on the evidence.”(CACI No. 100.)

They are further instructed not toengage in any independent research andare told that “This prohibition extends tothe use of the internet in any way.” (Ibid.)That seems to be a wise admonitionbecause, as the United States SupremeCourt has observed, the internet is a“vast library including millions of readilyavailable and indexed publications” withvirtually unlimited scope and diversity.(Reno v. American Civil Liberties Union(1997) 521 U.S. 844, 853.)

But what about information obtainedindependently by judges, information ofwhich we might not even be aware?Should judges in trial courts or appellatecourts be able to independently research

information sources that are not in evi-dence and, if so, in what circumstancesand subject to what restrictions and pro-cedures?

In particular, with the internet’s riseand vast scope, the subject of independ-ent factual research has been a matter ofgrowing concern, scholarly commentary,and some attempts at regulation. (See,e.g., Edward K. Cheng, IndependentJudicial Research in the Daubert Age (2007)56 Duke L.J. 1263.)

The purpose of this article is not toadvocate any particular approach but tonote some of the ways in which questionsand concerns arise and to note some ofthe ways in which the issue has beenaddressed thus far. The issue arises inboth the trial and appellate courts.

Terminology

First, a word about terminology: Onemust distinguish between legal researchand factual research. No one can serious-ly dispute that judges, especially appel-late judges, are allowed to conduct theirown legal research, i.e., they are notbound by the legal authorities cited by the parties in their briefs or at oral

argument. As one court observed, “inde-pendent research is indispensable to anefficient appellate system.” (Giraldo v.Dept. of Corrections & Rehabilitation (2008)168 Cal.App.4th 231, 251, citing Witkin,Manual on Appellate Court Opinions(1977) § 64, p. 106.) Indeed, few of uswould want precedent to be made solelyon the basis of authorities cited in theparties’ briefs. If that were the situation,inadequate briefs in a prior case wouldhamstring all of us.

Thus, as used in this article, “inde-pendent research” will mean research bya judge into non-legal information. Thisis commonly referred to as “independentfactual research.” But even that label canbe misleading because not all informa-tion discovered by a judge may be “factu-al” in the sense of being true. Indeed,that is one of the problems posed byindependent judicial research. The judgemay discover something he or shebelieves to be true but which is entirelyincorrect. Nonetheless, with this caveat in mind, this article will, for convenience,use the label “independent factualresearch” to describe research into non-legal matters outside the judicial record.

Independent factual researchby the benchA look at judges’ use of the internet for independentresearch on non-legal information.GARY SIMMS

Don’t let your motion for new trial sinka potential for appealThe motion for new trial can save tremendoustime and expense, but some missteps candoom the appeal.JERRY CLAUSEN

10 common mistakesin appellate procedureProcedural pitfalls that can jeopardizeyour client’s appeal.

DONNA BADER

You just got SLAPPed: What now?A primer on the anti-SLAPP motionand the procedural and substantive hurdlesit creates for plaintiffs. HOLLY BOYER AND JOSEPH PERSOFF

Profile: RJ WaldsmithFrom To Kill a Mockingbird to finding successthrough technology, teamwork and a passion for helping clients. STEPHEN ELLISON

The court granted summary judgmentor adjudication; now what?Your three options following the court’s grant of summary judgment or summary adjudication to the defense.VALERIE T. MCGINTY AND DANIEL U. SMITH

Motion practice: A judicial perspectiveTips from the bench on bringing and prevailingon your motions.HON. HOLLY J. FUJIE

Trial Practice and Procedure

How to read “Procrustean reasoning”A step-by-step approach to statutory interpretationby counsel to fit their goals. What was the real legislative intent?ELINOR LEARY

Appellate ReportsNickerson v. Stonebridge Ins. Co.Affirms a punitive-damage award that is 10 times the amount of compensatory damages; holds thatinsurer’s claims handling was highly reprehensible.JEFFREY I. EHRLICH

Back Story

The StoicOpening yourself to outcome.MILES B. COOPER

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Independent factual researchby the benchA look at judges’ use of the internetfor independent research on non-legal information

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The procedural rules

A well-known cardinal rule of appel-late procedure is that all factual asser-tions must be supported by citations tomatters in the appellate record and that,conversely, matters not contained in theappellate record must not be cited inappellate briefs. (Cal. Rule of Court, rule8.204(a)(2)(C); Citizens Opposing aDangerous Environment v. County of Kern(2014) 228 Cal.App.4th 360, 366; seegenerally, Eisenberg, Horvitz & Wiener,Cal. Practice Guide: Civil Appeals &Writs (The Rutter Group 2015) § 9:131,p. 9-39.) This restriction obviously gov-erns attorneys in appellate courts. Butdoes it govern the court themselves ortheir opinions? The answer is unclear, atleast in practice, if not in theory.

The issue is also far from new. Anearly example is People v. Tedesco (1934)1 Cal.2d 211, in which the CaliforniaSupreme Court affirmed a first-degreemurder conviction of a man in RedondoBeach. Associate Justice WilliamLangdon dissented, saying only, “I dis-sent. The evidence in this case waspurely circumstantial, and in my opin-ion insufficient to justify the verdict ofguilt of murder in the first degree.”(Id., at p. 222.)

That was not the end of the matter.Justice Langdon went to Redondo Beachand personally investigated the case. Hereported his findings to his SupremeCourt colleagues. He persuaded three of them, including Chief Justice WilliamWaste, that the Court had wronglyaffirmed the conviction. Then, in whatthe Berkeley Daily Gazette described as a“precedent shattering appeal,” the fourJustices went to Sacramento and per-suaded Governor Frank Merriam to commute the death sentence to lifeimprisonment.

People v. Tedesco is, of course, anextreme example of independent factualresearch, and it is now almost unfathomablethat any appellate justice would do asJustice Langdon did. It appears to havetransgressed every norm of appellateprocedural and judicial ethics but it maywell have prevented a wrongful execution.

Each reader must decide for himself orherself whether Justice Langdon did theright thing.

Typical independent research

A more recent and more typicalexample of independent research arosein People v. Mar (2002) 28 Cal.4th 1201,in which the Supreme Court held thatthe trial court had erred by requiring thecriminal defendant to wear an electricstun-belt in court. The court held thiswas prejudicial error and reversed theconviction. To justify its result, the Courtcited, among other matters, articles andother information not in the appellaterecord.

Writing in dissent, Justice JaniceBrown took the majority to task for itsindependent research. “The question inthis case was not whether stun belts poseserious medical risks for persons withheart problems or other medical condi-tions, nor was it whether the currentdesign of the stun belt could beimproved upon. There is absolutely noevidence in the record bearing on thesequestions. In the absence of such evi-dence, we had two choices. We couldhave deferred to the Legislature, whichcan make law after hearing from distin-guished experts on all sides of controver-sial issues. Or we could have waited for acase that raised these questions on anadequate record. Instead, the majority,rushing to judgment after conducting anembarrassing Google.com search for informa-tion outside the record, has tied the handsof the Legislature, to the likely peril ofjudges, bailiffs, and ordinary citizenscalled upon to do their civic duty.” (Id.,at p. 1233, italics added.) Regardless ofwhether one agrees with Justice Brown’sview, it highlights the issues raised byindependent research. Do we really wantprecedent, especially on constitutionalquestions, to be influenced, perhaps evencreated, based on a judge’s or judicialstaff attorney’s wanderings in theWikipedia bramble bushes?

The issue is directly addressed byCanon 3 of the California Code ofJudicial Ethics. It states, “Unless other-wise authorized by law, a judge shall not

independently investigate facts in a pro-ceeding and shall consider only the evi-dence presented or facts that may beproperly judicially noticed. This prohibi-tion extends to information available in all media, including electronic.”(Canon 3B(7).) This would seem to putto rest any debate regarding whether ajudge can independently investigate fac-tual matters. And in some cases, appel-late courts have made clear that inde-pendent research is impermissible.“[T]he judge cannot receive informationoutside the evidence in the case or conduct out-of-court experiments.”(Guadalupe A. v. Superior Court (1991) 234Cal.App.3d 100, 108-109.) One judgewas formally admonished for violatingthis rule: “Petitioner’s [the judge’s] mis-take was abandoning his adjudicative rolefor an investigatory one.” (Wenger v.Commission on Judicial Performance (1981)29 Cal.3d 615, 632.)

In another case, the trial judge wasfaulted for having done independentresearch to determine whether the weath-er had been rainy on a date relevant tothe case. (Catchpole v. Brannon (1995) 36Cal.App.4th 237.) For that reason andothers, the Court of Appeal found thejudge had been biased, requiring a rever-sal of the judgment. Pointing to thejudge’s weather research, the Court ofAppeal noted that “The factual inquiryindependently undertaken by the courtin this case without notice is uncharacter-istic of an impartial judge.” (Id., atp. 259, fn. 9.)

But other instances of independentresearch have been viewed less harshly.For example, in People v. Sikat (2010) 2010Cal. App. Unpub. LEXIS 360, the trialjudge had referred to information that hehad found on an internet site (a blog’scomments). The Court of Appeal statedthat it did not “condone” the judge’s ref-erence at trial to that information. (Id., atp. *35.) But the court also stated thatindependent research, i.e., reading theblog’s comments, was not “tantamount to‘investigation’” because the commentsreflected a “public sentiment well knownto all judicial officers.” (Id., at p. *36.)

Internet research, continued from Previous Page

See Internet Research, Page 10


But of course, if that were true, the trialjudge could simply have taken judicialnotice of the alleged facts contained in theblog’s comments. Moreover, Canon 3B(7)

specially prohibits independent internetresearch. It is fortunate that People v. Sikatwas not certified for publication and thuscannot be cited as precedent.

Criticism, or a free pass?

Perhaps the most that can be said isthat, sometimes, an appellate court willcriticize a trial court’s independent factu-al research. But in other cases, the appel-late court will be willing to give suchindependent research a free pass despiteCanon 3B(7). Perhaps the bigger prob-lem is that the attorneys may not evenknow if the judge has done any inde-pendent research. In the cases citedabove, the judges, for better or worse,revealed what they had done. But it isentirely possible, even likely, that some,perhaps most, judges will not, “put theircards on the table” by disclosing thatthey have used the internet or othersources to do independent factualresearch.

Another consideration is what typesof facts are subject to the proscriptionagainst independent research. Morespecifically, it is well understood thatthere are two types of facts: adjudicativeand legislative. As the Supreme Courthas put it, adjudicative facts are “factsconcerning immediate parties and whathappened to them.” (Franz v. Board ofMedical Quality Assurance (1982) 31 Cal.3d124, 139, fn. 6.) For example, the ques-tions “Was the car speeding?” or “Wasthe pedestrian in the crosswalk when shewas hit?” would be resolved by adjudica-tive facts.

By contrast, legislative facts arefacts “utilized for informing a court’s [oragency’s] legislative judgment on ques-tions of law and policy.” (Franz, supra, 31Cal.3d at p. 139, fn. 6.) Thus, for exam-ple, in deciding the legal question ofwhether a duty of care exists for a par-ticular type of situation, a court mustconsider several factors including “thepolicy of preventing future harm, theextent of the burden to the defendantand consequences to the community ofimposing a duty to exercise care withresulting liability for breach, and theavailability, cost, and prevalence ofinsurance for the risk involved.”(Peterson v. San Francisco CommunityCollege Dist. (1984) 36 Cal.3d 799, 806.)

Internet research, continued from Page 8

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Many of these items will or shouldrequire a court to consider facts.

Consider, for example, the availabili-ty, cost, and prevalence of insurance forthe risk involved. Should a court simplygo with its hunch on this factor? Orshould the court require the parties tosubmit evidence? Or should the court doits own research into insurance availabili-ty and cost? There appears to be very lit-tle California authority on these ques-tions. As explained above, in People v.Mar, supra, 28 Cal.4th 1201, the majoritydid its own independent internetresearch to justify its public-policy deter-mination regarding the forced wearing ofa stun-belt. The dissent took the majorityto task for that. But the practical reality isthat nothing constrains an appellatecourt for doing as much independentresearch as it wishes to do.

Reversals rare on legislativefacts

Indeed, there appears to be no casein which a trial or appellate court hasbeen reversed by a higher court for hav-ing independently researched legislativefacts. And notwithstanding California’sCanon 3B(7) and similar canons else-where, the legal commentary is also rela-tively more forgiving of independentresearch into legislative facts thanresearch into adjudicative facts. But this“legislative research” poses a problemgreater than “adjudicative research.” If ajudge independently investigates an adju-dicative fact –“Was the car speeding?”–his conclusion will affect only that caseand those parties. But the purpose of leg-islative-fact research is much broader, e.g.,to decide matters of public policy. Andbecause appellate courts will have the lastword on such questions, they can promul-gate rules that are binding precedent.

Moreover, legislative-fact researchmay be more prone to error than case-specific research. For example, if a judgedecides on her own to visit the scene ofan automobile accident to obtain a first-hand view of the location, there may notbe much that she can “get wrong.” Butlegislative-fact research is rife with thepotential for error. Very few judges or

judicial staff attorneys on whom judgesgreatly rely have any expertise outsidethe law. Thus, when they wander intofields such as science, economics, or his-tory, they are likely to reap inaccurate ormisleading results. How, for example, is ajudge supposed to evaluate the method-ology used for an economic analysis or astudy of current theories of brain devel-opment? Indeed, the sources themselvesmay be unreliable or even intentionallybiased, e.g., “studies” by partisan think-tanks. And of course, they can be cherrypicked for conclusions that support thejudge’s inclinations.

But although legislative-fact researchcan have a much greater effect than adju-dicative-fact research on the law, judgesare given much greater leeway to do legislative-fact research. Is this desirable,or should such research be subject togreater scrutiny and control, as suggestedby Justice Brown’s dissent in People v.Mar, supra, 28 Cal.4th 1201, 1233?

Does trial court disclose itsresearch?

In another respect, the two types ofindependent research pose differing con-cerns. It seems likely that trial judges arefar more likely than appellate justices toengage in adjudicative-fact research.This, of course, cannot be empiricallyproved, but the nature of the appellateprocess is such that it seems highlyunlikely that an appellate justice wouldseek to interview a witness or to visit anaccident site. Such factual determinationsare the trial judge’s province. But when atrial judge independently investigates thefacts, this raises a question of fairness,even due process, and it goes to theheart of our adversarial system. This isespecially true when the judge does notdisclose his research. And this concern is,of course, the premise for Canon 3B(7)’sproscription against independentresearch, at least for adjudicative facts.

Independent research into legislativefacts also raises a question of fairness,although perhaps more indirectly thandoes adjudicative-fact research. Assume,for example, that an appellate justicereads an internet “fact-based” article that

he finds persuasive and that affects hisdecision. He does not have to cite thearticle. And if he does not do so, the par-ties will be unaware that it affected thedecision, so they cannot respond to theindependent research. Or as might bemore likely, to bolster his conclusion, thejudge can cite the article in the court’swritten opinion. At least he has disclosedwhat he has done. But what is the losingparty to do? In reality, virtually nothing.In theory, he could petition for rehearingand explain why the article was incorrector biased. But good luck with that. Atbest, the court might modify its decisionby deleting the citation to the article. Butthe court would almost certainly denyrehearing.

In summary, independent judicialresearch, particularly at the appellatelevel, where legislative-fact research ismost likely, raises concerns of accuracyand fairness. The question is whethersuch research should be more explicitlyand closely regulated than it is now. Inparticular, should Canon 3B(7) beamended to make clear that it applies to legislative-fact research as well as toadjudicative-fact research? There may beno easy answer, but the question meritsfurther study.

Gary Simms was a seniorjudicial attorney at theCalifornia Supreme Courtfor almost nine years for for-mer Justice David Eaglesonand then current JusticeMarvin Baxter. Simms iscertified as an appellate spe-cialist by the State Bar of

California’s Board of Legal Specialization.Since leaving the Supreme Court, he has rep-resented plaintiffs on appeal in the CaliforniaCourts of Appeal and Supreme Court, theU.S. Ninth Circuit Court of Appeals, andappellate courts in Oregon and Texas. Simms serves on the Amicus Curiae Com-mittee of the Consumer Attorneys of Californiaand has been named a Northern CaliforniaSuper Lawyer for several years. Simms hasoffices in Davis, California, and Ashland,Oregon. He can be contacted [email protected].

Internet research, continued from Page 10

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BY JERRY CLAUSEN

A motion for new trial is essentially a method of review. If successful, it cansave the litigant a tremendous amount oftime and expense in obtaining a retrialversus through an appeal. If unsuccessful,the litigant can still seek review onappeal — unless a misstep in the new trialprocedure precludes such review.

To help litigants avoid such missteps,this article reviews two of the ways inwhich a motion for new trial may impactthe availability and scope of a subsequent

appeal: First, it examines the issuesrequired to be raised in a motion for newtrial in order to preserve them forappeal. Second, it explains the complexrules under which the deadline to file anotice of appeal will be extended by anunsuccessful motion for new trial, so thatcounsel can ensure a deadline is notinadvertently missed.

Issues that must be raised

There are two issues that must beraised by motion for new trial to preservethem for appeal. “A motion for a new

trial is not, generally, a condition prece-dent to an appeal. Generally speaking,any error of law can be raised on anappeal even though a motion for a newtrial has not been made.” (Schmidt v.Macco Construction Co. (1953) 119Cal.App.2d 717, 721; see 9 Witkin, Cal.Procedure (2016 Supp.) Appeal, § 405, p. 463 [“Generally speaking, (a motionfor new trial) is an alternative method ofreview, and an error may be raised onappeal although it could have been made the basis of a motion for a new trial”].)

See Sink, Page 16


Don’t let your motion for newtrial sink a potential for appealThe motion for new trial can save tremendous timeand expense, but some missteps can doom the appeal


There are, however, two caveats to thisrule – and there are additional caveatsto each of the two caveats.

•Jury misconduct. The first caveat con-cerns a claim of jury misconduct. (CCP §657, subd. 2.) A motion for new trial

based on a claim of jury misconduct must be made upon affidavits. (CCP § 658; Markaway v. Keesling (1963) 211Cal.App.2d 607, 610.) The affidavits mustbe presented to the trial court on amotion for new trial; they cannot be pre-sented to the court of appeal in the firstinstance. (Markaway, supra.) In Markaway,the plaintiff made a motion for new trialbased on jury misconduct supported byan affidavit, but the trial court dismissedthe motion because it was untimely. Theappellate court held (1) because themotion was untimely, the affidavit sup-porting it was a nullity; (2) because thetrial court never passed on the merits ofthe motion there was no ruling for theappellate court to review on appeal; and(3) an appellate court cannot take cog-nizance of such an affidavit as evidence tobe considered in the first instance. (Ibid.)

Thus, as a practical matter, a claimof jury misconduct required to take on amotion for new trial will not be availablefor review on appeal if it was not firstraised by affidavit on such a motion.

However, it is important to note thata party is required to raise juror miscon-duct on a motion for new trial only if theparty was unaware of the misconductprior to rendition of the verdict. In fact,a litigant seeking a new trial on thisground must aver in the supporting affi-davits that neither it nor its attorney wasaware of the misbehavior until after theverdict was returned. (Weathers v. KaiserFoundation Hospitals (1971) 5 Cal.3d 98,103.) The purpose of this rule “is to pre-vent a party who, personally or throughcounsel, has discovered some jury mis-conduct during the course of the pro-ceedings from gambling on the outcomeof the jury’s deliberations while secretlypreserving the error to be raised on amotion for a new trial in the event of an unfavorable verdict.” (Ibid.)

If a party becomes aware of jurormisconduct prior to rendition of the ver-dict, it must preserve it by immediatelyobjecting and seeking an appropriateremedy (such as removal of the juror or amistrial). (See People v. Stanley (2006) 39Cal.4th 913, 950 [failure to object to

See Sink, Page 18

Sink, continued from Page 14

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juror’s continued service or request mis-trial waived claim of juror misconductoccurring at outset of trial].) In such a

case, the misconduct need not be raisedagain on a motion for new trial in orderto preserve it for appeal.

•Inadequate or excessive damages. Thesecond caveat concerns a claim of inade-quate or excessive damages. (CCP § 657,subd. 5.) Failure to move for a new trialordinarily precludes a party from com-plaining on appeal that the damagesawarded were either excessive or inade-quate. (Glendale Fed. Sav. & Loan Assn. v.Marina View Heights Dec. Co. (1977) 66Cal.App.3d 101, 122; Jamison v. Jamison(2008) 164 Cal.App.4th 714, 719.) Therationale for this is twofold. First, thetrial court is in a better position than areviewing court to determine whether ajury verdict was influenced by passion orprejudice. Second, the power to weighthe evidence and resolve issues of credi-bility is vested in the trial court, not thereviewing court. (Glendale Fed. Sav. &Loan Assn., supra.)

But this requirement applies onlywhere the ascertainment of the amount ofdamage requires resolution of conflicts inthe evidence or depends on the credibilityof witnesses. The failure to move for a newtrial does not preclude a party from urg-ing legal error in the trial of the damageissue, such as erroneous rulings on admis-sibility of evidence, errors in jury instruc-tions, or a failure to apply the properlegal measure of damages — even thoughsuch error resulted in an improper reduc-tion of damages. (Schmidt v. MaccoConstruction Co., supra, 119 Cal.App.2d717, 721; Glendale Fed. Sav. & Loan Assn.,supra, 66 Cal.App.3d at p. 122; Jamison,supra, 164 Cal.App.4th at p. 721.)

Determining the deadlinefor appeal

An unsuccessful motion for new trialwill never shorten the time for filing anotice of appeal and will usually extendit. But in order to extend the deadline,the new trial motion must be “valid.”Furthermore, the rules for calculating theextension are complicated and dependon a number of contingencies that mayvary from one case to the next.

Extending the deadline

To extend the deadline to appeal,the motion for new trial must be valid.


See Sink, Page 20

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A motion for new trial will extend thetime to file an appeal only if it is valid.(CRC rule 8.108(b) [“If any party servesand files a valid notice of intention to move for new trial, the following extensions of time apply”].) This meansthat, at a minimum, (1) the motion fornew trial must be timely and (2) theunderlying decision must be one as to which a new trial may properly begranted.Timeliness. A motion for new trial ismade by filing a notice of intention tomove for new trial. (See CCP § 659(b)[the notice of intention “shall be deemedto be a motion for new trial”].) Thenotice must be filed within 15 days ofservice of notice of entry of the judg-ment or order. (CCP § 659, subd. (a)(2).)This time limit is jurisdictional; the trialjudge has no power to act on a late-filedmotion. (8 Witkin Cal. Procedure (5thed. 2008) Attack on Judgment in TrialCourt, § 54, pp. 639-640.) A late-filednotice of intent thus does not extend thetime to file a notice of appeal. (Reber v.Superior Court (1961) 189 Cal.App.2d622, 625.)Appropriateness. A motion for new trialwhich is not authorized by the new trialstatute does not extend the deadline toappeal. (Hall v. Hall (1954) 42 Cal.2d435, 437, overruled on another point inCarney v. Simmonds (1957) 49 Cal.2d 84,89, 90-91.)

Consequently, in order for a motionfor new trial to extend the time to appealfrom the underlying judgment or order,it must be an appropriate device forattacking that judgment or order.

At one time it was held that amotion for new trial could not be used toattack a decision where no issue of factwas tried. (See 8 Witkin, supra, § 23, p.605.) This rule was repudiated in Carney,supra. In Carney the Supreme Court heldthat the new trial procedure could also beused to review judgments based solely onan issue of law. (49 Cal.2d at p. 90.) Thecourt concluded that a motion for newtrial is proper, for example, following ajudgment of dismissal after the sustain-ing of a demurrer, a judgment on thepleadings, a judgment of dismissal

generally, a judgment on an agreed state-ment of ultimate facts, and a summaryjudgment. (Ibid.)

Subsequently, the First District Courtof Appeal, relying on Carney, stated that“a prerequisite for a motion for a newtrial is a trial court proceeding whichresults in a judgment or appealableorder.” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1501.) This rulewould sanction a motion for new trial to attack a wide variety of appealableorders, such as an order granting ordenying attorney fees, an order quashingservice of summons, or an order stayingan action on the ground of inconvenientforum. (See CCP § 904.1, subd. (a)(2) & (3).)

The formal rules

There are formal rules governingthe effect of a motion for new trial on the deadline to file an appeal:CRC 8.104: the “normal” deadlines to appeal. The “normal time” for filing a notice of appeal is stated inCRC 8.104(a)(1). Under this rule, anotice of appeal must be filed by theearlier of:(A) 60 days after service of notice ofentry of judgment or of a filed-endorsed copy of the judgment or(B) 180 days of entry of the judgment.

CRC 8.108: the extended deadlines toappeal when a motion for new trial isdenied. CRC 8.108 provides for exten-sions of the time to appeal if a validmotion for new trial is filed. Rule 8.108expressly provides that it operates only toextend the time to appeal otherwise statedin CRC 8.104(a). In other words, if thenormal time to appeal stated in rule8.104(a) is longer than the time providedin rule 8.108, rule 8.104(a) governs.(CRC 8.108(a).)

Under CRC 8.108(b)(1), if a validmotion for new trial is made anddenied1, then the notice of appeal mustbe filed by the earliest of:(B) 30 days after denial of the motion by operation of law (CRC 8.108(b)(1)(B)), or (C) 180 days after notice of entry ofjudgment. (CRC 8.108(b)(1)(C).)

Illustrations of the extendeddeadlines

As the provisions of rule 8.108(a)(1)suggest, calculation of the deadline toappeal when a motion for new trial isdenied is subject to a great many contin-gencies, as the following hypotheticalsillustrate:(a) On the 59th day after notice ofentry of judgment was served, Judge Xhears argument on a motion for newtrial and takes it under submission.Two days later she signs an order deny-ing the motion. The moving party filesa notice of appeal 30 days after that(i.e., on the 91st day after service ofnotice of entry of judgment).

The notice of appeal is untime-ly. A judge’s power to rule on amotion for new trial expires on the60th day after service of notice ofentry of judgment. (CCP § 660, 3dpar.) Thus, if the motion is not“determined” by the court withinthat time, it is deemed denied byoperation of law on the 60th day.Judge X’s signed order on the 61stday was therefore a nullity, and,under CRC 8.108(b)(1)(B), the lastday to appeal was 30 days after themotion was deemed denied byoperation of law on Day 60 – or, inother words, on the 90th day afterservice of notice of entry of judg-ment. The notice of appeal was aday late.

(b) Same facts as in a), except that theorder denying the motion is signedand filed on the 60th day and the nextday the clerk serves a copy of it on theparties. The moving party files a noticeof appeal 30 days after that (i.e., onthe 91st day after service of entry ofnotice of judgment).

The appeal is timely. A motionfor new trial is considered to be“determined” when an order on it is either entered in the permanentminutes or signed by the judge andfiled with the clerk. (CCP § 660, 3dpar.) Thus, the motion was notdenied by operation of law – it wasdetermined by the judge when her


See Sink, Page 22

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signed order was filed (on the 60thday). The deadline to file a notice ofappeal was therefore extended until30 days after the clerk served a copyof the order – which occurred on the61st day. Consequently, the notice of appeal filed on the 91st day wastimely.

(c) Same facts as in a), except that theorder denying the motion is entered inthe minutes on the 60th day. However,the clerk never serves a copy of theminute order or notice of its entry. Themoving party files a notice of appealon the 91st day after service of entry of notice of judgment.

The appeal is timely. Entry inthe minutes of the order denying themotion constituted a “determina-tion” of it. (CCP § 660, 3d par.)

Consequently, the motion was notdenied by operation of law, so CRC 8.108(b)(1)(B) does not apply.The 30-day deadline under CRC8.108(b)(1)(A) is triggered by serviceof the order or notice of its entry,not by mere entry of the order itself.Here, there was no such service.Consequently, the deadline to filethe notice of appeal was 180 daysafter service of notice of entry of thejudgment under CRC 8.108(b)(1)(C).The notice of appeal was filed wellwithin that time.

Four guidelines to determinethe extended deadlines

The manner in which the deadlineto appeal will be extended by a motionfor new trial under CRC 8.108(b)(1) can

be summarized in the following fourguidelines.

Measuring from the date notice ofentry of judgment was served, the dead-line to file a notice of appeal will be:no earlier than the 60th day and no laterthan the 180th day. Earlier than the 90thday only if:•an order or notice of its entry is servedprior to the 60th day.•on the 90th day only if either:(a) an order or notice of its entry isserved on the 60th day or (b) the court fails to determine themotion by the 60th day (and hence it is denied by operation of law.)Later than the 90th day only if: •the motion is determined on orbefore the 60th day, but a copy of the


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order or notice of its entry is either (a) served on or after the 61st day or(b) not served at all.

When In doubt, appeal earlyFor any number of reasons, doubt

can arise as to the precise deadline for

filing the notice of appeal. The penaltyfor being wrong is high, because the timeto file the notice of appeal is jurisdiction-al; a late notice is void and cannot besaved. (9 Witkin, Cal. Procedure (5th ed.2008) Appeal, § 614, p. 689.) Thus, incase of doubt, the safest route is to filethe notice by a date as to which there isno doubt, even if it is earlier than a dif-ferent date that might apply.

For example, an issue may arise as tothe validity of the notice of intention tomove for new trial, thus casting doubtover whether the normal time to appealunder CRC 8.104(a) will be extended atall. In that case, the safest approachwould be to assume CRC 8.108 will notapply and to file the notice of appealwithin the time specified under CRC8.104(a). Even if the notice of appeal isfiled before the motion for new trial hasbeen decided, the trial court still retainsjurisdiction to determine it. (VarianMedical Systems, Inc. v. Delfino (2005) 35Cal.4th 180, 191.)

Jerry Clausen is aplaintiff-side appellate lawyerspecializing in tort, insur-ance, and employment law,with an emphasis in publicentity liability law. He speaksand writes frequently on var-ious tort and appellate lawtopics and is an author ofCalifornia Government Tort LiabilityPractice (published by CEB). He is a StateBar Certified Appellate Specialist. Visit himon the Web at clausenappeals.com andclausenblawg.com.

Endnote1 The rules stated in CRC (8.108(b)(1) for extending the timeto appeal apply only when a motion for new trial is denied. If the trial court finds the damages were excessive or inade-quate and grants a new trial conditioned on a remittitur oradditur, the time to appeal is extended as stated in CRC8.108(b)(2) rather than (b)(1). An order unconditionally grant-ing a motion for new trial is itself appealable (CCP 904.1);thus, the time for filing a notice of appeal from such an orderbegins to run anew and is governed by CRC 8.104.


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BY DONNA BADER

After almost forty years of practicingappellate law, I have probably seen everytype of error made by trial attorneys inhandling appeals. Some may hurt theappeal, while others are fatal to prosecut-ing it. Here is a list of my top ten:

1. Determining when the noticeof appeal is due

The timely filing of the notice ofappeal is absolutely crucial; the deadlinesare jurisdictional. (Van Beurden Ins.Services, Inc. v. Customized WorldwideWeather Ins. Agency, Inc. (1997) 15 Cal.4th51, 56.) There is generally no relief from

filing a late notice of appeal, except insome clerical error or criminal appeal fil-ings. The court cannot extend the timeby its inherent power nor can relief beconferred by stipulation, waiver or estop-pel. (Hollister Convalescent Hosp., Inc. v.Rico (1975) 15 Cal.3d 660, 666-667;Marriage of Eben-King & King (2000) 80Cal.App.4th 92, 114.) Nor will a motionfor relief under Code of Civil Proceduresection 473(b) provide any relief.(Maynard v. Brandon (2005) 36 Cal.4th364, 372-373.)

Some attorneys have tried to bypassthis rule by reentering judgment, prepar-ing a formal order after the minute orderis entered and no formal order is

required, or transmitting a new notice ofentry of judgment. The deadline cannotbe restarted or extended by a new judg-ment or appealable order from the samedecision. (Laraway v. Pasadena UnifiedSchool Dist. (2002) 98 Cal.App.4th 579,583.)

There are three possible deadlines:• 60 days after a party is served withnotice of entry of judgment. (Cal. Rulesof Court, rule 8.104(a)(1)(B).) If you aregiving notice of entry of judgment, usepreprinted form, Form CIV-130, entitled“Notice of Entry of Judgment or Order.”Be sure to include a signed copy of thejudgment or order, as well as a proof of

See Common Mistakes, Page 28

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service. A party can prepare his or herown notice of entry of judgment, as longas it is entitled as “Notice of Entry.”(C.R.C. 8.104(a)(1)(B).)

A file-stamped copy of the judgmentor order, accompanied by a proof of serv-ice, will also qualify as giving notice ofentry of the judgment or order. (C.R.C.8.104(a)(1)(B).) The label of “Notice ofEntry” is not required. Many attorneyshave fallen into the trap of waiting for a“Notice,” but in this situation, the timehas already started running.

If no notice is given, the deadline is180 days after entry of judgment. Whywould a prevailing party want to give theappealing party an additional 120 daysto appeal when the deadline could bereduced to 60 days by filing a simplenotice of entry? If an attorney is repre-senting the prevailing party, assume theattorney has given notice and calculatethe deadlines accordingly.• 60 days after the clerk’s notice ofentry of judgment. (Cal. Rules of Court,rule 8.104(a)(1)(A).) The clerk can sendout notice of entry of judgment, whichwill also trigger the 60-day period. Asnoted above, the clerk could also, butrarely will, send out a confirmed copy ofthe judgment. If the phrase “notice ofentry” is not on the mailing and it doesnot contain the file-stamp, the 180-dayperiod will apply. (Cuenllas v. VRL Intern.,Ltd. (2001) 92 Cal.App.4th 1050, 1054.)• 180 days after entry of judgment.(Cal. Rules of Court, rule 8.104(a)(1)(C).)If no notice of entry of judgment isgiven, then the appealing party has 180 days to file the notice of appeal.

These are general rules. Be sure todetermine whether special circumstancesapply to the appeal. If the appeal is froma limited-jurisdiction case, the time limitis much shorter. (Cal. Rules of Court,rule 8.822(a)(1).) Certain proceedingshave special time limits built into theapplicable statute. Do not add additionaltime under Code of Civil Procedure sec-tion 1013. (Code Civ. Proc., §§ 1013(a),(c) and (e); Cal. Rules of Court, rule8.104(b); InSyst, Ltd. v. Applied Materials,Inc. (2009) 170 Cal.App.4th 1129, 1134-1135.) The time will be extended,

however, when the deadline occurs on aholiday. (Code Civ. Proc., §§ 12, 12a,12b.)

Save yourself a lot of grief. Calculatethe shortest period and you will never belate. And don’t wait until the last day tofile the notice of appeal. What if theagent for the attorney service runs into a problem, has an accident or otherproblem?

Don’t forget to include in your calcu-lations extensions of time after the denialof post-trial motions, which in unlimitedjurisdiction cases is usually 30 days fromthe notice of entry of the order. (Cal.Rules of Court, rule 8.108.) The deadlinecannot be extended beyond the 180-dayoutside limit nor can it shorten the nor-mal appeal period. One caveat: the post-trial motion must be valid and timely.

2. Advising your client whennotice of appeal is due

If a prospective client met with anattorney to discuss a potential case, theattorney would certainly advise the clientas to the applicable statute of limitations.Smart attorneys would probably also put the date in written correspondenceto the client.

Most trial attorneys do not exercisethe same care when it comes to advisingthe client about when the notice ofappeal is due, leaving it to the appellateattorney. If you are not sure when thenotice of appeal is due, then consult withan appellate attorney and put it in writ-ing to the client.

3. Determining the date ofentry of an appealable order

Attorneys frequently ask whether thedate of entry of an appealable order isbased on the minute order or a later pre-pared formal order. The answer dependson whether the court ordered the prepa-ration of a formal order. If no formalorder was required, then the date ofentry is when the order is entered in thepermanent minutes. (Cal. Rules of Court,rule 8.104(c)(2); Walton v. Mueller (2009)180 Cal.App.4th 161, 167.) The appealperiod is triggered even if the attorneydecides to prepare and file a written

order. (Marriage of Adams (1987) 188Cal.App.3d 683, 689.) If the minuteorder expressly requires the preparationof a formal order, the order is deemed“entered” on the date the signed order is filed. (Cal. Rules of Court, rule8.104(c)(2); Matera v. McLeod (2006) 145 Cal.App.4th 44, 59.)

4. Figuring out whether to filean appeal or a writ

Determining whether to file a directappeal or a writ is crucial. If an order orjudgment is appealable, you must file anappeal or lose the right to do so at alater date. If the order or judgment isnonappealable, consider whether toimmediately file a petition for a writ or wait until there is an appealable order or judgment.

The appellate court cannot consideran appeal taken from a nonappealablejudgment or order on jurisdictionalgrounds. (Griset v. Fair Political PracticesCommission (2001) 25 Cal.4th 688, 696.)If your appeal is premature, the appel-late court may consider it by construingthe appeal from a subsequent appealablejudgment or order. Don’t rely on theappellate court grant relief. Some courtshave expressed harsh criticism of attor-neys who fail to determine whether anorder is appealable and have suggestedthey might not “help” attorneys in thefuture. (Shpiller v. Harry C’s Redlands(1993) 13 Cal.App.4th 1177, 1180;Modica v. Merin (1991) 234 Cal.App.3d1073, 1075 [court abandons “its policy of tolerance”], but see ABF Capital Corp.v. Grove Properties Co. (2005) 126Cal.App.4th 204, 213.)

The appellate court can treat anappeal from a nonappealable order as awrit petition. (Sheller v. Superior Court(2008) 158 Cal.App.4th 1697, 1709.)Again, don’t rely on the court to save yourfaulty appeal; it will only do so under lim-ited circumstances and with an adequaterecord. (Safaie v. Jacuzzi Whirlpool Bath, Inc.(2011) 192 Cal.App.4th 1160, 1169.)“Routine granting of requests to treatimproper appeals as writs where there areno exigent reasons for doing so would

Common Mistakes, continued from Page 26



only encourage parties to burden appel-late courts with reviews of intermediateorders.” (Estate of Weber (1991) 229Cal.App.3d 22, 25.)

Attorneys frequently rely on the “onefinal judgment rule.” (Code of Civ. Proc., §904.1(a)(1).) But the inquiry should notend there. Sometimes the appealability ofan order defies logic. For example, anorder granting or denying an anti-SLAPPmotion is immediately appealable. (Codeof Civ. Proc., §§ 425.16(i), 904.1(a)(13).)Orders and interlocutory judgments can bemade appealable by statute, such as Codeof Civil Procedure section 904.1, the FamilyCode, the Probate Code or other statutes.

If the order or judgment is notappealable, consider filing a writ peti-tion. The next step in the analysis isdetermining whether the writ is statutoryor common law. Statutory writs are usual-ly easy to spot; a provision for writ relief,including applicable deadlines, is builtinto the applicable statute.

A common-law writ may not have abuilt-in deadline, but that doesn’t meanthe attorney can relax. After all, theattorney is requesting immediate relief toavoid irreparable injury. Since writs areequitable in nature, relief may be barred

by laches. Courts will generally apply a60-day rule (equivalent to the time forfiling a notice of appeal) after service ofthe order (Cal West Nurseries, Inc. v.Superior Court (2005) 129 Cal.App.4th1170, 1173), but if you are challenging acourt order that requires compliance witha set time period, then the writ petitionshould be filed before the date of per-formance to allow for a stay and toobtain effective orders to deal with thetrial court’s order.

5. Appealing from non-appealable orders, particularlyin demurrers and motions forsummary judgment

Attorneys frequently file appealsfrom orders sustaining a demurrer with-out leave to amend. These are notappealable orders. (Hill v. City of LongBeach (1995) 33 Cal.App.4th 1684, 1695.)If the demurrer has been sustained withleave to amend, an appeal can be takenfrom the judgment after trial, or from ajudgment or order of dismissal if thedemurrer is sustained without leave toamend. (Kong v. City of Hawaiian GardensRedevelopment Agency (2002) 108Cal.App.4th 1028, 1032, fn. 1.)

Orders granting or denying amotion for summary judgment or sum-mary adjudication are also not appeal-able orders. (Levy v. Skywalker Sound(2003) 108 Cal.App.4th 753, 761, fn.7.)If summary judgment is granted, theappeal is taken from the judgment.(Code Civ. Proc., § 437c(m)(1).) Review ofan order granting summary adjudicationis done from the final judgment or a writpetition. (Jennings v. Marralle (1994) 8Cal.4th 121, 128). An order denyingsummary judgment can be challengedonly by a timely writ petition. (Code Civ. Proc., § 437c (m)(1); Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1256.)

One word of caution here: make surethe orders indicated above are ordersand that a final judgment of dismissalwill be separately prepared. Some ordersalso contain judgments (or, more com-monly, dismissals) that will start the timerunning for an appeal.

Attorneys may try to appeal from astatement of decision, which sets forththe trial court’s reasoning as to the appli-cable law and evidence. A statement ofdecision is generally not appealable



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(Industrial Indemnity Co. v. City and Countyof San Francisco (1990) 218 Cal.App.3d999, 1003, fn. 3), although the appellatecourt may treat the statement of decisionas appealable when it constitutes thecourt’s final decision on the merits.(Native Sun/Lyon Communities v. City ofEscondido (1993) 15 Cal.App.4th 892,896, fn. 1.)

6. Failing to ask for a statementof decision and following upwith the proper procedures

If you are involved in a court trial,you should request a statement of deci-sion on all material issues pursuant toCode of Civil Procedure section 632. Ifthe trial lasted less than one calendar day or took less than eight hours overmore than one day, the request must bemade before the matter is submitted fordecision. (Cal. Rules of Court, rule3.1590(n).) In all other cases, the requestmust be made within 10 days after thecourt announces its tentative decision,which can be extended by Code of CivilProcedure section 1013(a). (Code Civ.Proc., § 632; Cal. Rules of Court, rule3.1590(d).)

There are several reasons for doingso:•Protects against implied findings andpresumptions;•Allows the trial court to correct itsintended decision;•Frames the issues on appeal; and•Helps the appellate court conduct itsreview.

If you fail to determine the court’sreasoning on factual determinations, yourappeal will be bound by the doctrine of“implied findings,” which means that allfactual determinations are presumed infavor of the judgment. (Marriage ofArceneaux (1990) 51 Cal.3d 1130, 1133-1134.) “In other words, the necessaryfindings of ultimate facts will be impliedand the only issue on appeal is whetherthe implied findings are supported bysubstantial evidence.” (Shaw v. County ofSanta Cruz (2008) 170 Cal.App.4th 229,267.) The failure to request a statement of decision will expand and complicatethe scope of the appeal.

Don’t forget to follow the proceduresinvolved in requesting a statement ofdecision, including making objectionsand proposals. The court may even ordera hearing on the proposals and objec-tions. (Cal. Rules of Court, rule 3.1590(k).Don’t make a request that is argumenta-tive, attacks the trial judge, or asks for astatement of decision on every fact, espe-cially if they are subsidiary issues. “Thetrial court need not discuss each questionlisted in a party’s request; all that isrequired is an explanation of the factualand legal basis for the court’s decisionregarding the principal controvertedissues at trial as are listed in the request.”(Hellman v. La Cumbre Golf & Country Club(1994) 6 Cal.App.4th 1224, 1230.)

7. Failing to ask for a stay of enforcement from the trial court

While some types of judgments or orders are automatically stayed onappeal, a money judgment is not. (CodeCiv. Proc., § 917.1(a)(1).) A money judg-ment can usually be enforced as soon asjudgment is entered, which can cripple aparty’s ability to pursue an appeal orarrange for a bond or undertaking. At the last hearing before judgment isentered, ask the trial court for a tempo-rary stay pursuant to Code of CivilProcedure section 918. A temporary staycan be granted to allow the losing partyto decide whether or not to appeal and,if necessary and possible, to arrange for a bond.

8. Failing to bring a motion fornew trial

There are a few grounds wherebringing a motion for new trial isrequired: if inadequate or excessive dam-ages are awarded, or jury misconduct. Inthe first instance, the appellate court rea-sons that the trial court is in a betterposition to determine – and correct – ifinadequate or excessive damages wereawarded. (Glendale Fed. Sav. & Loan Assn.v. Marina View Heights Development Co.(1977) 66 Cal.App.3d 101, 122.) In thesecond instance, how else would theappellate court know if the jury committed

misconduct as these matters are oftenbrought to the trial attorney’s attentionafter the trial is over and he or she isconducting interviews of the jurors?

9. Failing to ask for a courtreporter

With so many courts suffering budg-et cutbacks, court reporters are often notprovided. If you think a hearing on amotion or trial may result in the need foran appellate challenge, make sure a courtreporter is present. After all, the appel-lant has the burden of showing error onan adequate record. (Iliff v. Dustrud(2003) 107 Cal.App.4th 1201, 1209.)Contact the court before the hearing anddetermine if a court reporter will be pro-vided. If not, make sure one is available.The alternatives, such as obtaining a set-tled statement, are less effective.

10. Failing to keep the exhibitswith the trial court

At the conclusion of the trial, thelower court often urges the parties topick up their exhibits. Request that thecourt maintain possession and custody ofall exhibits. If the trial court maintainsthe exhibits, at least the parties knowwhere the exhibits are and that no onehas access to them to alter them withoutconsent. It also makes it easier to trans-mit the originals to the court of appealwhen required. (Cal. Rules of Court, rule8.224.)

Conclusion

Appellate procedural rules oftenseem like a maze for trial attorneys. Thisarticle has identified the more commonmistakes and can help you avoid pitfallsthat will jeopardize your client’s appeal.

Donna Bader is a certi-fied specialist in appellatelaw with 30 years’ experi-ence, practicing in LagunaBeach. She is the former edi-tor-in-chief of Advocate andPlaintiff magazines, and isthe author of An Appeal toReason: 204 Strategic Tools

to Help You Win Your Appeal at Trial.www.anappealtoreason.com


Bader


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Referred to as an “anti-SLAPP”motion, a special motion to strike underCode of Civil Procedure section 425.16 isa procedural tool that allows defendantsto dismiss a plaintiff ’s claim withinmonths of the filing of the complaint.After concluding that there was “a dis-turbing increase in lawsuits brought

primarily to chill the valid exercise of the constitutional rights of speech andpetition for the redress of grievances,”the Legislature enacted this proceduraldevice in an effort to help defendantsagainst these strategic lawsuits againstpublic participation (“SLAPPs”). (CodeCiv. Proc. § 425.16, subd. (a).)

Simply put, the anti-SLAPP statuterequires a plaintiff to make a summary-judgment showing mere months after thecommencement of the action and usually

without the benefit of discovery. Thereare several procedural and substantivehurdles the anti-SLAPP statute createsfor plaintiffs that everyone needs to beaware of, and the purpose of the article is to highlight those hurdles. While thisarticle discusses fundamental anti-SLAPPissues, additional, more complex issuesmay arise that are not discussed here butcould each warrant an in-depth article on their own.

See SLAPPed, Page 36

You just got SLAPPed;What now?

A primer on the anti-SLAPP motion and the proceduraland substantive hurdles it creates for plaintiffs

When does the anti-SLAPPstatute apply?

The anti-SLAPP statute applies to an“act in furtherance of a person’s right ofpetition or free speech under the UnitedStates or California Constitution in connec-tion with a public issue.” These acts include:• Any written or oral statement or writ-ing made before a legislative, executive,or judicial proceeding, or any other offi-cial proceeding authorized by law, • Any written or oral statement or writingmade in connection with an issue underconsideration or review by a legislative,executive, or judicial body, or any otherofficial proceeding authorized by law, • Any written or oral statement or writ-ing made in a place open to the publicor a public forum in connection with anissue of public interest, or • Any other conduct in furtherance ofthe exercise of the constitutional right ofpetition or the constitutional right of freespeech in connection with a public issueor an issue of public interest.

Quintessential examples of conductfalling under the anti-SLAPP statute aredefamation and malicious-prosecutionclaims. (See, e.g. Taus v. Loftus (2007)

40 Cal.4th 683 [defamation]; Greene v.Bank of America (2013) 216 Cal.App.4th454 [malicious prosecution].) Courts havealso extended the protections of the anti-SLAPP statute less obvious claims such asto claims arising out of a hospital’s peer-review proceedings, as these claims mayarise out of an “official proceedingauthorized by law,” (Kibler v. Northern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192), and to employment-discrimination claims. (See, e.g. Hunter v. CBS Broadcasting, Inc. (2013) 221Cal.App.4th 1510.)

The test to determine whether theanti-SLAPP statute applies is not as simpleas looking at the name of the cause ofaction asserted. In determining whetherthe anti-SLAPP statute applies, courtslook to the conduct underlying the causeof action and analyze whether that con-duct falls under one of the four categorieslisted above. (Equilon Enterprises v. ConsumerCause, Inc. (2002) 29 Cal.4th 53, 67.)

Burden shifting under theanti-SLAPP statute

Anti-SLAPP adjudication involves atwo-step process. First, referred to as“prong one,” the moving party must

demonstrate the statute applies. Thisshowing involves the analysis describedin the previous section of determiningwhether the conduct complained of is anact in furtherance of the moving party’sconstitutional rights of petition or freespeech. It is the moving party’s burden toestablish and does not involve the merit ofthe claim at issue. (Comstock v. Aber (2012)212 Cal.App.4th 931, 942 [“The questionis what is pled – not what is proven.”].)The statute is to be interpreted “broadly.”(Code Civ. Proc., § 425.16, subd. (a).)

If the defendant meets its burden ofestablishing the application of the anti-SLAPP statute, the burden then shifts to the plaintiff to establish that its claimhas “minimal merit.” (Navellier v. Sletten(2002) 29 Cal.4th 82, 88-89.) This show-ing, referred to as “prong two,” is akin to the showing required to defeat a sum-mary-judgment motion. (Grewal v. Jammu(2011) 191 Cal.App.4th 977, 990.) Theplaintiff therefore must present admissi-ble evidence that could allow the plaintiffto obtain a favorable judgment if theplaintiff ’s evidence is credited. (Navellier,supra, 29 Cal.4th at pp. 88-89.) The courtdetermines whether the plaintiff has metthis burden by considering the pleadings

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and supporting and opposing affidavits“stating the facts upon which the liabilityor defense is based.” (Code Civ. Proc., §425.16, subd. (b)(2).)

Most of the anti-SLAPP statuteapplies in Federal Court – for now

As the law currently stands, the anti-SLAPP statute is applicable in the NinthCircuit. (Batzel v. Smith (9th Cir. 2003)333 F.3d 1018, 1024-1026.) In Batzel, theNinth Circuit construed the anti-SLAPPstatute as California substantive law,thereby applicable to federal diversitycases under the Erie Doctrine. As dis-cussed below, there are some aspects ofthe anti-SLAPP statute that do not applyin the Ninth Circuit.

Despite Ninth Circuit precedentapplying the anti-SLAPP statute, there is

a recent trend resisting application of theanti-SLAPP statute in the Ninth Circuit.In Travelers Casualty Insurance Company ofAmerica v. Hirsh (9th Cir. 2016) 831 F.3d1179, 1182-1186, Judge Kozinski stated in his concurrence that the anti-SLAPPstatute has “no place in federal court,”noting that “anti-SLAPP cases have spreadlike kudzu through the federal vineyards.”

When a defendant files themotion, adjudication movesquickly and discovery is stayedin State Court

A defendant may file the anti-SLAPPmotion within 60 days of service of thecomplaint, but may also file the motionlater with the court’s permission. (CodeCiv. Proc., § 425.16, subd. (f).) Once thedefendant files the motion, the clerk of

the court “shall” schedule a hearing forno more than 30 days after service of the motion. (Ibid.) An exception to thisrequirement is if the court’s docket is too crowded to schedule the motion.(Ibid.) This is a short amount of time toprepare an opposition and supportingevidence that must establish a likelihoodof success on your claim.

Additionally, once the defendantfiles the motion, discovery is automatical-ly stayed. (Code Civ. Proc., § 425.16,subd. (g).) You may move the court for“specified discovery” upon a showing of good cause, but it is a difficult burdento meet as the intent of the statute is to minimize the costs and burdens of unmeritorious litigation. (SlausonPartnership v. Ochoa (2003) 112Cal.App.4th 1005, 1021.)


SLAPPed, continued from Page 34


network because selection of a newsanchor is in furtherance of the exerciseof free speech rights], some courts havebegun to push back (see Un Hui Nam,supra, 1 Cal.App.5th 1176).

Opposing an anti-SLAPP motion ischallenging given the short amount oftime and only 15 pages to provide thecourt a background of the case and to address both prongs of the statute. Thischallenge requires the opposition to bal-ance which arguments to focus on with-out waiving arguments on appeal.

A firm grasp of anti-SLAPP funda-mentals makes this task more manage-able. This primer is in no way exhaustiveas there are other issues that may arise, such as the illegality exception

(Flatley v. Mauro (2006) 39 Cal.4th 299)and mixed causes of action (Baral v.Schnitt (2016) 1 Cal.4th 376), but willhopefully provide a foundational under-standing of the anti-SLAPP statute so youcan anticipate the motion and be readyto respond when the defendant strikes.

Holly Boyer is a part-ner in Esner, Chang &Boyer, a boutique appellatefirm with offices in Southernand Northern California. All of the partners are certified by the State Bar of California as appellatespecialists. In addition tohandling all aspects of appellate litigation,

the firm also assists trial lawyers with disposi-tive and post-judgment motions.

Joseph Persoff is anAssociate with Esner,Chang & Boyer, an appellate firm with offices in Southern and NorthernCalifornia. All of the part-ners are certified by the StateBar of California as appel-late specialists. In addition to handling all aspects ofappellate litigation, the firm also assists triallawyers with dispositive and post-judgmentmotions. Joseph has handled numerous anti-SLAPP issues both in the trial court and inthe Court of Appeal.


This automatic stay of discovery doesnot apply in federal court, however, asthe Ninth Circuit has concluded that an automatic discovery stay would becontrary to the Federal Rules of CivilProcedure and therefore in violation ofthe Erie Doctrine. (Metabolife Intern., Inc.v. Wornick (2001) 264 F.3d 832, 845-847.)

Once the motion is filed, youcannot amend the complaint inState Court

The Court of Appeal has held thatallowing a plaintiff to amend a complaintonce an anti-SLAPP motion is filedwould be contrary to the Legislativeintent of resolving SLAPPs expeditiously:“By the time the moving party would beable to dig out of this procedural quag-mire, the SLAPP plaintiff will have suc-ceeded in his goal of delay and distrac-tion and running up the costs of hisopponent.” (Simmons v. Allstate Ins. Co.(2001) 92 Cal.App.4th 1068, 1073-1074.)This rule of prohibiting amendment hasgenerally held firm but a few opinionshave opened the door slightly. (See M.F.Farming, Co. v. Couch Distributing Co.(2012) 207 Cal.App.4th 180, 186, n. 2[amendment permissible where defen-dant failed to object]; Nguyen-Lam v. Cao(2009) 171 Cal.App.4th 858, 870-871[plaintiff permitted to amend complaint

to plead actual malice when actual malicesupported by evidence].)

Like the rule staying discovery, thisrule does not apply in the Ninth Circuiteither, as the Ninth Circuit concludedthat a prohibition on discovery would be contrary to Federal Rule of CivilProcedure 15 which instructs courts to“freely” give leave to amend. (VerizonDelaware, Inc. v. Covad Communications Co.(9th Cir. 2004) 377 F.3d 1081, 1091.)

If you lose, the defendant isentitled to attorney fees

As part of the Legislature’s intent todiscourage frivolous lawsuits seeking toharass and chill the valid exercise of con-stitutional rights, the anti-SLAPP statutegenerally entitles a prevailing defendantto attorney’s fees and costs. (Code Civ.Proc. § 425.16, subd. (c)(1).) There aresome exceptions to this rule, listed in subdivision (c)(2) of the statute.

Win or lose, the trial court’s ruling is immediately appealable

The statute provides that an ordergranting or denying a special motion tostrike shall be appealable under Code ofCivil Procedure § 940.1, subd. (a)(13).(Code Civ. Proc. § 425.16, subd. (i).) TheNinth Circuit also allows appeals fromthe grant or denial of an anti-SLAPP

motion. (Travelers Casualty InsuranceCompany of America v. Hirsh (9th Cir.2016) 831 F.3d 1179, 1180-1181 [percuriam].) Appellate courts review ordersgranting an anti-SLAPP motion de novo,applying the same two-prong, burdenshifting analysis as the trial court.(Mendoza v. ADP Screening and SelectionServices, Inc. (2010) 182 Cal.App.4th1644, 1651-1652; Mindys Cosmetics, Inc. v.Dakar (9th Cir. 2010) 611 F.3d 590, 595.)

Notably, and in line with the NinthCircuit’s recent resistance to applicationof anti-SLAPP, the ability of a defendantto appeal from an order denying its anti-SLAPP motion may be vulnerable. Inaddition to criticizing the application ofthe anti-SLAPP statute in federal courtgenerally, Judge Kozinski also criticizedthe ability of defendants to appealdenials of their anti-SLAPP motions:“Our acceptance of anti-SLAPP specialmotions was bad enough, but we madethe problem worse by allowing defen-dants to bring interlocutory appeals.[Citation.] This case is a perfect exampleof the consequences of that decision.Robert Hirsh appealed to our court afterthe district court denied his meritlessmotion to strike. That was in the springof 2014. Two years and a few hundredbillable hours later, we’re sending thecase back for the district court to pick upright where it left off.” (Travelers CasualtyInsurance Company of America v. Hirsh(9th Cir. 2016) 831 F.3d 1179, 1184.)

Anti-SLAPP motions have become apowerful tool for defendants to not onlyget rid of claims against them after onlya few months, but to get their attorney’sfees paid. Application of the anti-SLAPPstatute has arguably developed farbeyond the initial intent of theLegislature to deter actions “filed by aneconomic powerhouse to dissuade itsopponent from exercising its constitu-tional right to free speech or to petition.”(Un Hui Nam v. Regents of the University of California (2016) 1 Cal.App.5th 1176,1193.) While many courts continue toapply the statute very broadly, seeHunter, supra, 221 Cal.App.4th 1510[anti-SLAPP statute applies to genderdiscrimination claim against a television

SLAPPed, continued from Previous Page

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to a team strategy when going to trial, hesaid, and he and his colleagues, BillSmith and Jeffrey Smith (no relation), aredriven by the Winston Churchill maxim,“Deserve victory!”

“(Trial) practice has become so muchmore difficult in many ways, from theclaims adjusters and lienholders to theovercrowded courthouses that causedelays in hearings and trial dates,”Waldsmith said. “I used to go to trial solo but now my firm takes the teamapproach, which is much more enjoyable.It is fun to bounce ideas off each otherand to share the load.”

And while preparation and team-work may be second nature to him thesedays, Waldsmith has come to recognizethat jurors’ attitudes are more fluid thanever, and thus his methods in court mustkeep up with the changing ideals.

As a rhetoric major at UC Berkeley,he studied the classical forms of argu-mentation and persuasion, and it is withthose very areas he has observed a majorshift in the jury box.

Modes of persuasion

“The successful modes of persua-sion are evolving from ethos (appealingto one’s ethics through the credibilityor character of the persuader) andlogos (appealing to one’s logic withreason) to more pathos (appealing toone’s emotions),” he explained. “Therecent presidential election exemplifiedthis, with emotion succeeding overcharacter and reason. In my view,jurors today are more persuaded byemotion than they used to be. We arein a post-truth era.”

In 2003, Waldsmith was honored as a Trial Lawyer of the Year finalist by both the SFTLA and ConsumerAttorneys of California after securingone of the largest verdicts in the state in a case that involved a diver who wasparalyzed at a public pool in WalnutCreek.

The client was a 20-year-old statediving champion who collided with a syn-chronized swimmer during diving prac-tice. The diver was rendered a quadriple-gic as a result of the collision.

The city of Walnut Creek owned andoperated the pool and rented its divepool to a diving team and a synchronizedswimming team simultaneously to holdpractices without providing any means ofsafely separating the two teams with verydifferent purposes. The fateful collisionoccurred because the diver did not see a15-year-old synchronized swimmer pushoff the wall under the diving boardtoward his landing area just as he beganhis dive.

Waldsmith and Bill Smith got a ver-dict of $27.75 million in Contra CostaCounty Superior Court. More important-ly, the city pool now requires floatinglane lines to separate the two groups.The verdict was identified as the 12thlargest in California and the 67th largestin the United States in 2003, accordingto the firm’s website.

Waldsmith remembered it as a busytime.

“It was a very hectic year with allthe pretrial and trial work while still try-ing to be a good husband and father tothree young boys,” he said.

“But the commitment certainly wasworth it. The excellent results dramati-cally changed the lives of both clients.We keep in touch, and I see them peri-odically. It is so gratifying to see myclients receive the day-to-day care theyneed and have some comfort in life. It isvery difficult for them to live with suchdevastating injuries and having to relyon others for all aspects of their dailyactivities. And while financial compensa-tion didn’t restore their health, theresources have made life much betterfor them. I am so proud to have helpedimprove their lives.”

Awards and rewards

Waldsmith also received a nationalaward in 2004 for “Most Innovative Useof Technology during Trial.” He hasconducted numerous classes and semi-nars for the State Bar of California andthe SFTLA, not only on the subject oftechnology at trial but also on publicentity liability, government tort liability,witness preparation and basic trialskills.

Along with catastrophic injuries andwrongful death, Waldsmith specializes ina wide variety of plaintiffs’ cases includinggovernment tort liability, medical mal-practice, elder abuse, sports injuries andproduct and premises liability.

When he’s not working, Waldsmithenjoys spending time with his family andfriends, playing softball, biking, kayak-ing, hiking and traveling.

“I love spending time in Hawaii,Europe and all over California,” he said.“We live in such a great place for theopen minds and outstanding access torecreational activities. There are so manyfun places to see and experience inCalifornia.”

Advice for aspiring lawyers

On the subject of advice for aspiringlawyers, Waldsmith reasoned that he hashad a gratifying career primarily becauseof the one element most plaintiffs’ attor-neys point to: He’s passionate about thework.

“The legal profession can be verydifficult, adversarial, tedious and mun-dane,” he said. “If you are not passionateabout what you do, you will not enjoy itand will burn out.”

Indeed, helping people successfullynavigate the civil justice system hasbeen very rewarding, Waldsmith said.His clients come to him after somethinghorrible has happened to them,whether it’s a devastating injury or the tragic loss of a loved one, and theyare generally vulnerable emotionallyand financially.

“They usually do not understandthe civil justice arena,” Waldsmithexplained. “I am passionate about pro-viding them with the best legal repre-sentation I can provide to at least makethis part of their lives go as well as itcan. I feel very lucky to have such anopportunity to help people through dif-ficult times and hope young lawyers canfind an area of the law as rewarding as I have found.”

Stephen Ellison is a freelance writerbased in San Jose. Contact him at [email protected].


BY STEPHEN ELLISON

It’s not often fictional characters inbooks and/or film have such widespreadappeal and real-world influence as tosteer the youth of society toward a gener-al ethos and, further, into a specific liveli-hood. It just so happens Robert J.Waldsmith had such an experience, andeven as time and invention have alteredthe moral landscape of society over theyears, he continues to draw on that inspi-ration.

“When I read To Kill a Mockingbird at15 years old, the integrity and moralconscience of Atticus Finch inspired meto become a trial lawyer,” said Waldsmith,partner with Abramson Smith Waldsmithof San Francisco. “The novel describedthe courts as the ‘great levelers’ and pro-moted equal justice for all men.”

The story itself, which dealt with theserious issues of rape and racial inequali-ty, and the backstory of Atticus Finch asa father, and ultimately a hero, wasenough to set Waldsmith on a course tobecome a lawyer. Unfortunately, authorHarper Lee’s negative portrayal ofAtticus in the recently published Go Set aWatchman shattered his admiration ofAtticus, which is symbolic of the times,Waldsmith said.

“When Mockingbird was published in 1960, Mickey Mantle and John F.Kennedy served as heroes in our society,and now the superstar athletes tend to be flawed, and we have Trump as ourpresident-elect,” he explained. “It is diffi-cult to find people to look up to today. Itis unlikely that people have only recentlydeveloped these shortcomings, but theyare more likely going to be publiclyrevealed and scrutinized today. The pressdid not publicize the private issues andfailings of Mickey Mantle and JFK, asthey would today.”

Thesedays,Waldsmithis an inte-gral partof one ofthe mostforward-lookingand tech-nologicallysavvy lawfirms inNorthernCalifornia.The firmwas one of

the earliest adopters in the legal commu-nity, having embraced the advances inelectronic and visual presentation ofcases since the early 2000s.

Before he landed at his current firm,Waldsmith briefly pursued an interest incriminal law. He quickly realized that hispersonality did not fit as a prosecutor ora defender, he said.

“I then was fortunate to clerk for BillSmith at Abramson & Smith while in lawschool and immediately recognized thatplaintiff ’s personal injury work was mycalling,” said Waldsmith, who earned hisjuris doctor from Golden Gate UniversitySchool of Law. “I have worked with Billever since. He has been such a greatmentor to me with his integrity and workethic. He epitomizes the qualities of agreat trial lawyer.”

Waldsmith and Smith have co-authored numerous articles on the sub-ject of technology in trials, and they havelong contended the use of technology toeffectively communicate their cases in thecourtroom gives them an indisputableadvantage.

In a 2004 piece for the SanFrancisco Trial Lawyers Association,

Waldsmith and Smith likened litigationto marketing, saying that jurors today aremore apt to listen, learn and retain whenthey get information through visuals such as video, slides and infographics.Video, especially, “attracts attention andconveys information that is more readilyabsorbed in a more efficient presenta-tion,” the authors wrote.

In the article, Waldsmith and Smithoutlined five reasons why all lawyersshould consider using technology in trial:• People accept and retain visual evi-dence more readily. Studies have shownjurors retain up to 80 percent of whatthey see, and that retention rate drops to as low as 20 percent when there is no visual input.• Technology helps overcome jurorbias. Jurors who may not initially supporta plaintiff ’s case are more likely tochange their mind based on visual ratherthan verbal information.• A well-planned visual presentationshortens a case. One judge estimatedthat computer technology can reducetrial time by as much as 50 percent.• Technology will help a lawyer win aclose case. The use of digital files in trialallows a lawyer to easily and quicklyrecall evidence that is prejudicial to the opponent.• A visual presentation enables a plain-tiff to get higher damages. This type ofbullet-point slideshow helps illustrateexpert testimony and focuses attentionon particular elements of a client’s loss.

Preparation and teamwork

When it comes to his generalapproach to trying cases, Waldsmith hada more traditional answer: Thoroughpreparation is critical. When a lawyer isproperly prepared, he or she can get intoa rhythm during a trial, “and that makesit fun,” he said. Also, his firm subscribes

Profile: RJ WaldsmithFrom To Kill a Mockingbird to finding successthrough technology, teamwork and a passionfor helping clients

Waldsmith

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“notice of entry of judgment.” (Cal. CodeCiv. Proc., § 659.)

On the other hand, if the ordergrants summary judgment and then goeson to “dismiss” all causes of action (orsomething similar), then it constitutes ajudgment, service of which starts theclock on the 15-day period to file yournotice. (Cal. Code Civ. Proc., § 581d, § 659.)

Second, you must ensure that yournotice is timely filed. Because the dead-line for filing the notice is jurisdictional,the court lacks authority to consider anynew-trial motion that is untimely, makinga late filing fatal. (Ehrler v. Ehrler (1981)126 Cal.App.3d 147.)

Calendaring the correct deadlinecan be confusing, because multiplenotices of entry of judgment (possiblyfirst by the clerk and then later by aparty) are not uncommon – lulling eventhe most experienced lawyers into a falsesense of security when they mistakenlycalendar the deadline from a later noticeinstead of from the first.

Moreover, service of notice of entryis complete at the time of deposit in themail and receipt by you is not necessary forservice to be effective. (Cal Code Civ. Proc.,§ 1013(a); Sharp v. Union Pac. R.R. Co.(1992) 8 Cal.App.4th 357, 360.)

Accordingly, to ensure the notice istimely filed, the safest method is to filethe notice within 15 days of the datejudgment was entered.

Third, your notice should includetwo things: (a) all possibly applicablegrounds (Cal Code Civ. Proc., § 657); and (b) the date the court’s jurisdictionexpires. (Cal Code Civ. Proc., § 660.)

Including all possibly applicablegrounds in the notice provides maxi-mum flexibility both for you and thecourt of appeal. For example, newgrounds may emerge as you draft thepoints and authorities (due 10 daysafter the notice). But if you have notincluded these in the notice, you maynot rely on them in your points andauthorities. Also, the court of appealmay (with a couple exceptions) general-ly affirm a new trial on any ground stat-ed in the notice – and the more options

a reviewing court has, the greater thechance of affirmance.

Your notice should also include inthe caption or on the front page the dateon which the court’s jurisdiction expires.This will help ensure that both you andthe court have this date in mind. Anorder granting a new trial dated afterjurisdiction has expired is a nullity – andwould be a travesty! So, protect yourselfby putting the date that jurisdictionexpires on the front page of the notice(and repeat that date in all your support-ing papers).

2. Writ: Reasons to file

If the court grants summary adjudi-cation (not summary judgment), a writmay be appropriate, especially if thesummary-adjudication order eliminatesthe heart of your case.

However, because writ review iswholly discretionary and less than 10percent of writs are granted, you shouldassess whether you have any novel issueof law or any issue that would otherwiseinterest the court.

If you have such an issue, then a writ may be worth your while and, ifgranted, would be much faster than wait-ing until after trial to appeal plus the two years it takes for the appeal to run its course. Writ: Best practices for filing

If you decide to file a writ, youshould do three things: (1) ensure thewrit is timely; (2) ensure your supportingrecord is sufficient to show that review iswarranted; and (3) highlight any novelissues that may make your petition par-ticularly interesting to the court ofappeal.

First, ensure the writ is timely by cal-endaring “20 days after service of noticeof entry of the order.” (Cal Code Civ.Proc., § 437c(m)(1).) It is safest to assumethat the order was served on the date itwas entered. Also, “for good cause,” thetrial court may extend your time to filefor “one additional period not to exceed10 days” so long as you apply for the extension before the “expiration of theinitial” 20-day period. (Cal Code Civ.Proc., § 437c(m)(1).)

Second, ensure your supportingrecord is sufficient. Judges report thatattorneys’ failure to provide an adequaterecord is a significant factor in the highpercentage of summary denials.

At a minimum, you should includethe following: (1) legible copies of theorder from which you seek relief; (2) theminute order and any attorney-preparedorders; (3) all documents and exhibitssubmitted to the trial court supportingand opposing your position; (4) any otherdocuments necessary for a completeunderstanding of the case and the rulingunder review; and (5) reporter’s tran-script of the hearing, per CaliforniaRules of Court, rule 8.486(b)(3). Also, be sure to check the local rules in theappellate district where you will be filingto see if anything else is required.

Third, because writs are rarely grant-ed and are wholly discretionary, you mustframe your issue to the extent possible insuch a way as to show it is novel, impor-tant, or may otherwise evade review if thecourt of appeal does not grant reviewnow. The petition is your chance to sellthe court on your issue.

3. Appeal: Reasons to file

When faced with an erroneous sum-mary judgment where neither a new-trialmotion nor a writ is suitable, you shouldappeal.

Of all the appeals to take, an appealfrom summary judgment confers one ofthe most favorable standards of reviewpossible – de novo review with the evi-dence viewed in the light most favorableto the plaintiff. (Collin v. CalPortlandCompany (2014) 228 Cal.App.4th 582,588.)

And because “summary judgment isa drastic procedure to be used with cau-tion,” “[a]n appellate court will reverse asummary judgment if any kind of a caseis shown.” (Levin v. State of California (1st Dist. 1983) 146 Cal.App.3d 410, 414 (emphasis added).)

Moreover, courts reviewing summaryjudgment must “accept as true the facts”contained in plaintiffs’ evidence, andplaintiffs are also entitled to all “the reasonable inferences that can be drawn”


BY VALERIE MCGINTY

AND DANIEL U. SMITH

This article explores the benefitsand best practices of three options fol-lowing the grant of summary judgmentor summary adjudication: (1) a new-trial motion, (2) a writ, and (3) anappeal.

1. New-trial motion: Reasonsto file

If the court granted summary judg-ment (not summary adjudication), a new-trial motion may be the best move fortwo reasons.

First, a new-trial motion may get youexactly what you want – a new trial! And,if successful, a two-month new-trial motionis much faster than a two-year appeal.

Accordingly, you must always askyourself if there is a chance you can turnthis judge around. Possibly the judge hasa reputation for being especially open-minded. Also, you may be able to presentthe briefing with even greater clarity andsimplicity, having had the benefit ofbriefing it once already.

Second, a new-trial motion can helpyou complete the record. This is especial-ly applicable if newly discovered evidence surfaced after the hearing. But it is broader than that.

For example, if the court deniedyour continuance motion that would haveallowed you to take a critical depositionand you deposed the witness the dayafter the hearing, consider making anew-trial motion and attaching to yourdeclaration the most relevant excerpts

from that deposition. Or if the courtexcluded your expert’s declaration forlack of qualifications, consider includingin your new-trial motion a new declara-tion from your expert that clearlydemonstrates the expert’s qualificationsto render the opinions given.New-trial motion: Best practices for filingthe notice

When filing a new-trial motion, youshould do three things.

First, you must determine whetherthe summary judgment order operates asa judgment (and so starts the clock onyour time to file the notice).

If the order merely “grants” themotion, then it is just an order. Underthis scenario, you may choose whether tofile your notice before “the entry of judg-ment” or within “15 days” of service of

Summary judgment granted andyou’re on the ropes: now what?Your three options following the grant of summaryjudgment or summary adjudication

Motion practice: A judicial perspectiveTips from the bench on bringing and prevailingon your motions


BY HON. HOLLY J. FUJIE

I am writing this based upon myalmost five years on the bench, duringwhich time I have seen the same errorscountless times. As such, I believe that itcould be helpful, especially to lessexperienced lawyers, to set out thesesimple rules to make prevailing on yournoticed motion more likely.

Before you file or oppose a noticedmotion, consider the following: (1) is themotion necessary to advance your client’scase (anger at opposing counsel, forexample, is not a reason to file or opposea motion); (2) what is the motion/opposition going to cost my client andwhat is the likely result (my Court sees asurprising number of unopposedmotions which possibly could have beenresolved by stipulation); and (3) is therelief I am seeking within the Court’sjurisdiction and its custom and practice?(If this judge is known for never grantingcertain types of motions, is it worthwhileto bring it?)

If there is a requirement or a customin your court for counsel to meet andconfer before a motion is filed (or even ifit is not), meet and confer in good faithand, if possible, do so in person, or byphone if not, rather than exchangingendless voluminous letters. Be sure toinclude a declaration that sets out yourmeet and confer efforts.

If discovery is being sought, considerwhat you really need or can reallyproduce and try to work towardsresolving the issue without resorting to amotion to compel.

If the court provides for an InformalDiscovery Conference (IDC), takeadvantage of that and be prepared todemonstrate your good faith to the judgein attempting to resolve the issue. ManyIDC Statements waste space complainingabout the other side, often inexcruciating detail, or say generically thatthe other side “only objected to thespecial interrogatories” without saying

what the special interrogatories sought,and why they are calculated to lead to thediscovery of admissible evidence.

Listen to the judge in the IDC.Although it is, as indicated, an“informal” proceeding, the judge willgenerally be frank about what is likely to occur if a motion to compel isbrought/heard. We often hear counsel say“Well, I’ll take my chances on a motion”when they don’t hear what they want tohear from the judge. This attitude doesnot recognize that the judge is unlikely to change positions between the IDC and the hearing, thus resulting insanctions. Do not go into an IDC with animpassioned and indignant speech moreappropriate for a jury. The judge istrying to resolve a discovery matter, notdecide your case.

If you are able to reach anagreement on discovery but you havealready filed a Motion to Compel (whichshould not happen, as the parties shouldagree to extend the time to file a Motionuntil after supplemental responses asprovided), do not keep the motion oncalendar for the sole purpose of gettingsanctions. This is generally seen as awaste of everyone’s time, and the Courtis unlikely to award sanctions when thereis no accompanying relief to order.

It should obviously go withoutsaying, but follow all rules, includinglocal rules and the judge’s own rules,including page limits and format.

Check all citations and verify theircurrent validity. Make sure the cited caseand page cites support directly what you saythey do. If quoted language in the casesounds like it supports your position butthe case goes against your position,consider how the Court will view thediscrepancy. Address authority on theother side before it is presented by youropponent. No exclamation points and novilifying the other side. (Actually, youshould limit underlining and italics.)

When preparing a motion oropposition, do not waste much space

stating the obvious authority, e.g., thestandards for a demurrer or a motion forsummary judgment or a request for acontinuance. Only when you are askingthe Court to diverge from the generalstandard or where the relief requested isunusual is it necessary to recite theauthority for such an action.

Be specific about the relief you areseeking and why you are seeking it. Ifyou want to get a protective order againstyour client’s deposition being takenbefore you receive certain discovery, state exactly what it is you expect toreceive in responses, when you expect to receive it, why it is necessary for yourclient’s preparation, and when you wouldbe able to have the deposition taken. Justarguing that something is unfair is notsufficient.

For every factual statement you make,for example in opposition to a Motionfor Summary Judgment, have a citationto an admissible piece of evidence thatdirectly addresses that fact. When there isa sentence without a citation, we do notnecessarily assume that the citationfollowing the next sentence supports thefirst sentence. The same goes for everylegal statement you make; you need togive a legal citation for that proposition.

Do not string cite and do not cite tocases standing for general propositionswhen you are trying to support a morespecific legal position.

Make sure that your argumentfollows logically. Do not assume that thejudge will read everything as a whole, andthat if a fact or issue is not properlysupported or explained on page 5 thejudge will see that you cleared it up onpage 10. Avoid what I call the “huh?”moment – when I have to read back andforth through a lot of paper and differentdocuments to figure out what the attorneyis trying to tell me. Believe it or not,some judges may not make the effort.

When opposing a motion forsummary judgment, focus your papers on establishing at least one clear dispute


from those facts. (Wright v. State ofCalifornia (2015) 233 Cal.App.4th 1218, 1228.)Appeal: Best practices for filing

If you are proceeding with anappeal, you must do three things: (1)determine whether the order constitutesa judgment, (2) ensure your notice istimely, and (3) name the proper order or judgment you are appealing from.

First, as explained above, before filing your notice of appeal you mustanalyze the order to determine whetherit constitutes a judgment.

If the order is just an order, then youmust wait for the judgment and calendaryour appeal deadline from the judgment.

On the other hand, if that ordercontains language that renders it a

judgment (Cal. Code Civ. Proc., § 581d),then you should calendar your deadlineto appeal from the order.

Second, the notice of appeal must betimely – a late notice is fatal.

A reviewing court “must dismiss theappeal,” if a “notice of appeal is filedlate.” (Cal. Rules of Court 8.104(b);emphasis added.) And appellate jurisdic-tion cannot be conferred by consent, stipu-lation, estoppel, or waiver. (HollisterConvalescent Hosp. Comm. Inc. v. Rico(1975) 15 Cal.3d 660, 666-667, 674.)

Under Rules 8.104 and 8.108, threepossible deadlines govern the filing of anotice of appeal: (1) 60 days from serviceof either the judgment or appealableorder; (2) 30 days from the denial of atimely-filed post-trial motion; or, (3) if

neither of the first two applies, then 180 days after entry of judgment or appealable order.

Accordingly, if no post-trial motionswere filed, the notice of appeal is due 60 days from service of the judgment orappealable order. It is safest to assumethe judgment was served on the date itwas entered.

If a new-trial motion was timely filed,then the notice of appeal is due 30 daysfrom the denial of that motion. (Cal.Rules of Court 8.108(b).) You must con-firm whether the motion was denied byan order or by operation of law uponexpiration of the court’s jurisdiction(beware of any order entered after expira-tion of the court’s jurisdiction, which is anullity!). (Cal. Code Civ. Proc., § 660.)

Third, be sure to correctly nameeach appealable order or judgment appealed from. (Cal. Rules of Court8.100(a).) And make sure your noticeidentifies all appellants. Failure to do thiscould result in that portion of the appealbeing dismissed because the judgment is considered final as to nonappealingparties. (Estate of McDill (1975) 14 Cal.3d831, 840.)

Ms. McGinty representsplaintiffs on appeal with afocus on affirming plaintiffs’judgments and reversingsummary judgments. Shereceived CAOC’s 2014 StreetFighter of the Year Awardand was nominated forCAOC’s 2015 ConsumerAttorney of the Year Award. Follow her onTwitter @4Appeals.

Mr. Smith representsplaintiffs on appeal and is aCertified Appellate Specialist(State Bar Bd. LegalSpecialization). He belongs to the California Academy ofAppellate Lawyers, receivedCAALA’s “Appellate Lawyerof the Year” award, and was nominated forCAOC’s 2015 Consumer Attorney of the YearAward. Visit www.plaintiffsappeals.com.

On the Ropes, continued from Previous Page

�

McGinty

Smith


BY ELINOR LEARY

The Veen Firm P.C.

Procrustes had a house on the side of a well-traveled roadbetween two important cities. To every weary traveler whopassed by, Procrustes extended the invitation of a warm mealand a night’s rest in his very special bed, which he promisedwould fit exactly the body of whomever lay upon it. The unwit-ting travelers would accept, only to find that Procrustes’ methodof fitting was to stretch them if they were too short, or amputatetheir legs if they were too long.

This story is from Greek mythology. In practice, counsel willuse “Procrustean reasoning” to extend or stretch the meaning ofa statute to fit their goals. We have seen this in demurrers,motions to strike, and other attacks on the pleadings, as well asmotions for summary judgment. What follows is intended to bea practical guide to statutory interpretation to allow you tothwart these attempts.

The law

In Halbert’s Lumber v. Lucky Stores (1992) 6 Cal.App.4th1233, the court provided a step-by-step approach to statutoryinterpretation:

First, a court should examine the actual language of thestatute. … [I]t is the language of the statute itself that has suc-cessfully braved the legislative gauntlet. It is that languagewhich has been lobbied for, lobbied against, studied, pro-posed, drafted, restudied, redrafted, voted on in committee,amended, reamended, analyzed, reanalyzed, voted on by twohouses of the Legislature, sent to a conference committee,and, after perhaps more lobbying, debate and analysis, finallysigned ‘into law’ by the Governor,

(Halbert, supra, 6 Cal.App.4th at 1238.)Second, “[i]n examining the language, the courts should

give to the words of the statute their ordinary, everyday mean-ing [citations] unless, of course, the statute itself specificallydefines those words to give them a special meaning.” (Ibid.) Acourt should give a word its plain meaning. (See, Ibid.) “If themeaning is without ambiguity, doubt, or uncertainty, then thelanguage controls. [Citations.] There is nothing to ‘interpret’or ‘construe.’ [Citations.]” (See, Id. at 1239.) If a word’s

meaning is not clear, a court must refer to the legislative histo-ry to determine intent. (See, Ibid.)

Finally, if neither the plain meaning nor statutory history revealclear meaning, a court should “apply reason, practicality, and com-mon sense to the language at hand. If possible, the words should beinterpreted to make them workable and reasonable [citations], prac-tical [citations], in accord with common sense and justice, and avoidan absurd result [citations].” (Ibid.)

Three-step approach to statutory interpretation

Examine the words;•Give the words their plain meaning, and, if it is still unclear,read legislative history to determine intent; and•Apply common sense, if neither the plain meaning nor statuto-ry history reveal intent.

Guidelines to implement this approach

Examine the wordsWords matter. Especially in a statute. Read the law. Pay

attention to the words used and omitted. Assume the legislaturedid not include or omit a word “by accident.” (Jurcoane v.Superior Court (2001) 93 Cal.App.4th 886, 894 [explaining,


regarding a material factual issue. It isnot an argument just that your client isbadly injured or defendant is a badperson.

Writing persuasively

Use headings to effectively outlineyour arguments. Read your papers inhard copy before you put them in finalform. When you read on paper, you cancatch overuse of a word or a lack of flowin the argument. And please, proofreadcarefully before submitting your papers.

Before making a request for judicialnotice under Evidence Code section 450,et seq., make sure that the matter as towhich you are seeking judicial notice fallswithin the categories for which judicialnotice is necessary/appropriate. Forexample, you need not seek judicialnotice of pleadings in the same case, andyou should not seek judicial notice of apersonal letter or a Wikipedia article.

Make sure that your declarations and other evidence provide adequatefoundation for the facts stated and arenot subject to a valid objection.

Oral argument and Court Call

While Court Call is certainly a validtool to use if necessary, be judicious as towhen you use it and when you appear inperson. If a motion is really important toyou, think twice before you decide not toappear in person for oral argument.

Sometimes the Court uses itsobservations of your demeanor inargument to weigh certain issues. Also, if you are not in court and the other side has brought a court reporter, it isvery difficult for the court reporter totranscribe your part of the hearingaccurately.

Think about whether you need to bring a court reporter to preserve your rights in the event of appellateproceedings. Also, consider whether youneed to bring a translator (for examplefor a Petition to Approve Settlementwhere your client will be testifying) to the hearing.

Again, this should go without saying,but dress formally (conservatively) forCourt. That means generally a suit with a jacket or a conservative dress. Noloosened ties, no revealing blouses.

Speak formally and respectfully toeveryone in the Court. Treat the JudicialAssistant and Courtroom Clerk as if theywere the judge.

Leave twice as early for court as youthink you need. If you are late and arenot there when the Court calls your case,even for trial, the Court will decide ordismiss the case and you are going tohave to explain that to your client. If youfind yourself running late, call the Courtand tell them your expected arrival time.

Always let the Court know that youare submitting on the tentative if that is

what you want to do. Some attorneys seea tentative in their favor and just assumethat it will be the order of the Court sothey do nothing. Often, the Court willtake a motion off-calendar if no one callsin (or emails) to submit. Sometimes, theCourt will require a call or email tosubmit on the tentative even when thetentative is to continue the hearing. Becautious and call in or email every timeyou have a tentative ruling.

Listen carefully to the questions thejudge asks and answer them directly. Donot say “I will get to that later.” Theremay not be a later and the moment willbe lost.

If there is a tentative decision that is against you, address the points withwhich you disagree and do not rehashwhat is in your papers. Do not engage inbickering with the other attorneys or withthe judge. Appear reasonable and notunreasonably wedded to an extremeposition.

If the tentative is in your favor, andthe judge has asked questions of theother (losing) party, and then asks you ifyou have anything to say, do NOT restateyour argument or even address issuesraised by the losing party, just say“Thank you, Your Honor, I submit on thetentative, but if you have any questions Iwould be happy to address them.”

Stop arguing when the Court hasstated its ruling.

Address the judge as “Your Honor”on the bench, not “Judge.”

Never use the phrase “With all duerespect” and do not roll your eyes or sighat anything said (it happens far morethan one would expect or we wouldhope).

And believe it or not, I find itnecessary to say, Do NOTwink at the judge at ANYtime!

Holly J. Fujie is a judgeon the Superior Court ofLos Angeles County inCalifornia. She was appointedby Governor Jerry Brown inDec. 2011.She was elected in2014 for a term that expires in Jan. 2021.

Motions Practice, continued from Previous Page

Kevin KearneyExpert Witness

Over 35 years of ConstructionOver 20 years of ConsultingConstruction Litigation and Management

BAY AREA/NORTHERN CALIFORNIA

[email protected]

How to read“Procrustean reasoning”A step-by-step approach to statutory interpretationby counsel to fit their goals

Trial Practice and Procedure

Fujie


BY JEFFREY I. EHRLCIH

Nickerson v. StonebridgeIns. Co.

(2016) _ Cal.App.5th _ (2d Dist., Div. 3.)Who needs to know about this case?

Lawyers litigating punitive-damage cases,particularly in insurance bad-faith cases.

Why it’s important: Affirms a puni-tive-damage award that is 10 times theamount of compensatory damages; holdsthat insurer’s claims handling was highlyreprehensible.

Synopsis: Nickerson, a paraplegic,purchased a hospital-confinement policyfrom Stonebridge, which promised benefits

of $350 per day for each day of confine-ment in a hospital for a covered injury.The policy included in its definitions sec-tion a “necessary treatment” provisionthat operated to limit the policy’s cover-age to care that was provided in “themost economical and medically appropri-ate site for treatment.”

Nickerson was a retired U.S. Marine,and eligible for free medical care inVeteran’s Administration hospitals. OnFebruary 11, 2008, Nickerson fell out ofhis wheelchair and suffered a comminut-ed displaced fracture of his right tibiaand fibula (meaning that the leg was bro-ken, splintered, and out of place.) He was

taken to the emergency room of the VAHospital in Long Beach, and then trans-ferred to that hospital’s spinal-cord unit,which was equipped to treat paraplegics.Nickerson developed complications fromthe injury, and was confined to a hospitalbed until February 29, 2008. Thereafterhe was allowed to use a wheelchair, butcould only tolerate limited time in it. Hewas ultimately discharged on May 30,2008. In all, he spent 109 days in thehospital.

When he submitted his claim toStonebridge, it ultimately submitted hisclaim to a private peer-review organiza-tion, asking it to determine, inter alia,


“As our Supreme Court stated, ‘we areaware of no authority that supports thenotion of legislation by accident.’[Citation.]”.) The legislature knew how toinclude or omit a word if it wanted. (See,Ibid.)Give words their plain meaning

A dictionary, case or statute candefine a word. A court can refer to a dic-tionary definition to determine a word’splain meaning. (See, Halbert, supra, 6Cal.App.4th at 1250 [examining the word“mechanic”].) A court can also refer tocase law or statute to determine a word’sordinary meaning. (See, Halbert, supra, 6Cal.App.4th at 1240 [examining the word“furnished”].)

Sometimes, punctuation, grammar,and statutory schemes create ambiguity.Cases recognize dozens of rules to helpanalyze laws in these situations. Theserules can be found in Cal. Jur. 3d,Statutes, Sections 83-130“Interpretation.”Examining legislative history

Examining legislative history can becomplicated and time-consuming. Thefollowing resources discuss how to con-duct legislative-history research:Cal. Jur. 3d, Statutes, Sections 110-127“Application of General Rules ofConstruction.”

The Loyola Law School, LosAngeles, web site (guides.library.lls.edu/c.php?g=497693&p=3407260) publishesthe following checklist on legislative-history research:•Check West’s Annotated CaliforniaCodes and Deering’s California Codesfor your code section;•Look up the statute in Statutes ofCalifornia and Digests of Measures;•Locate the bill number for your statutein Table of Laws Enacted or Summary Digestof Statutes of California and Digests ofMeasures;•Locate the bill history in Senate FinalHistory;•Compare different versions of the bill;•Refer to the Assembly File Analysis;•Check committee analysis;•Check the Senate Journal;•Search for committee reports and hearings;

Contact agencies for additional informa-tion;•If more information is required, youmay wish to consult additional researchguides or contact a legislative researchagency such as: •Carolina C. Rose, Research and PracticeGuide: California Legislative History andIntent (6th ed., Legislative Research Inc.2005), available online; •U.C. Berkeley Law web site:https://www.law.berkeley.edu/library/dynamic/guide.php?id=54.

Applying common sense

Applying common sense meansavoiding an absurd result. (Chan v. KoreanAir Lines, Ltd. (1989) 109 S.Ct. 1676,1682-1683.) A court should construe astatute to give it the intended effect.(See, Ibid.)

Case analysis: an employmentlaw example

Let’s imagine you practice employ-ment law. Your client has a disabledchild. She seeks reasonable accommoda-tions to care for her child. The employerdenies her accommodations. You believethat under the Fair Employment andHousing Act (“FEHA”) an association witha physically disabled person is itself a dis-ability that should be accommodated.Defendant demurs, and claims that theFEHA’s protections are limited to theemployee’s own disability and do notextend to the child of the employee. Andnow you’re off to the races.

You start with the language. It is anunlawful employment practice: “For anemployer, because of the race, religiouscreed, color, national origin…physicaldisability,… of any person,…to discrimi-nate against the person in…privileges ofemployment.” (Gov. Code, § 12940(a)[emphasis added])

But, you wonder, how far does thatprotection reach? Who does “any person”include? The law provides the answer:“’Race, religious creed, color, nationalorigin…physical disability…’includes …that the person is associated with a per-son who has… any of those characteris-tics.” (Gov. Code, § 12926(o))

It appears the Legislature didindeed extend protections to your clientwho was dealing with her child’s disabili-ty. But the defendant has claimed thatthe accommodation protections do notextend to the physical disability of anassociated person. It is an unlawfulemployment practice: “For an employer…to fail to make reasonable accommoda-tions for the known physical or mentaldisability of an … employee.” (Gov. Code§ 12940(m(1)) You believe the languageof the statutory scheme is clear if readtogether.

Of course, you look at the legislativehistory. For the FEHA, you have quite alot to work with. You may spend hours onthis part. No need to trouble you withthe details, but this will prove to be afruitful search. Finally, you apply com-mon sense and notions of fairness andjustice. Could the Legislature have meantto prohibit unlawful discrimination basedon the disability of an employee’s childyet fail to prohibit unlawful accommoda-tion? That would be an absurd andunfair result indeed.

Conclusion

In defense of their cases, defensecounsel will quote terms that don’t exist,misread words that do exist, and miscon-strue statutory schemes that otherwisehang together nicely. So, read the law.Make sure it says what you think it does.And, use statutory-interpretation rules tomake your point.

Elinor Leary is the teamleader of the Leary TrialTeam at The Veen Firm.Her cases include worksiteand workplace injuries,defective products, danger-ous property conditions,negligent security, and vehi-cle collisions. Elinor hastried cases to verdict and

has reached settlements listed among TheRecorder’s “Top Settlements.” Elinor is activein numerous organizations that championconsumer rights and that work to protect theConstitutional right to trial by jury.www.veenfirm.com.

“Procrustean Reasoning,” continued from Previous Page

* California Board of Legal Specialization

Choosing the right appellate lawyercan be the most important decisiona trial lawyer makes.

The Trial Lawyer’s Appellate Firm

818-905-3970www.ehrlichfirm.com

16130 Ventura BoulevardSuite 610 • Encino, CA 91436

Certified Appellate Specialist*; Harvard Law School, cum laude

Over 65 published appellate opinions — including cases in the U.S. Supreme Court and California Supreme Court

Ehrlich is a co-author of Croskey, Heeseman, Ehrlich & Klee, California Practice Guide – Insurance Litigation (Rutter 2016)and featured speaker on Insurance and Appellate litigation

Two-time CAALA Appellate Lawyer of the Year

•

Appellate ReportsNickerson v. Stonebridge Ins. Co. — Affirms apunitive-damage award that is 10 times the amountof compensatory damages; holds that insurer’sclaims handling was highly reprehensible

Leary


Health clubs; gross negligence: Andersonv. Fitness International, California (2016) _Cal.App.5th _ (2d Dist., Div. 7.)

Kirk Anderson joined an L.A. Fitnesshealth club in Glendale in 2011. Uponjoining he signed the club’s memberagreement, which contained a waiver ofliability and release. In September 2012,Anderson slipped in the club’s shower,breaking his arm. He sued LA Fitness in2013, alleging that it negligently andrecklessly maintained a shower roomthat was slippery because of residuefrom soap, conditioner, and body oils,and that its tile floor, which slopedtoward the two drains in the center ofthe floor, lacked any mats, frictionstrips, hand rails, or warning signs. Healleged that he had fallen in the sameshower at least twice, and had previouslyinformed L.A. Fitness’s employees at thefront desk of the club that the showerwas dangerous. The trial court grantedL.A. Fitness’s motion for summary judg-ment, finding that the release in themember agreement barred any negli-gence claims, and that Anderson hadfailed to show gross negligence.Affirmed.

Anderson failed to produce any evi-dence that showed that the condition ofthe shower floor at the time he fell was“an extreme departure from conditionsone would expect in a health-club show-er facility.” Nor, given his claim that hehad previously fallen in the same show-er, could he claim that the risk wasunknown to him. He failed to show thatL.A. Fitness engaged in any activity thatincreased the risk inherent in its showerfacility, or that it had concealed a knowndangerous condition. At most, it showedthat L.A. Fitness was negligent. In addi-tion, he failed to show that after he noti-fied the employees at the front desk,that his complaints were ignored.Rather, all he alleged is that he gave thenotice and that he did not notice anychanges. Since he failed to produce anyevidence that would allow a fact finderto determine that the condition of theshower represented an extreme depar-ture from the standard of care, he could

not raise a triable issue of fact on grossnegligence.

General contractor’s liability to subcon-tractor’s employees; Privette; retainedcontrol; non-delegable duty: Khosh v.Staples Construction Co. (2016) _Cal.App.5th _ (2d Dist., Div. 6.)

Privette v. Superior Court (1993) 5Cal.4th 689, holds that an employee ofan independent contractor generallymay not recover tort damages for work-related damages from the contractor’shirer. (In the typical scenario, this meansthat an employee of a subcontractor can-not proceed in tort against the generalcontractor for injuries suffered on thejob.) There are exceptions to this rule,but the court determined that they didnot apply here. California StateUniversity Channel Islands hired StaplesConstruction to install a backup electricalsystem at the campus. Staples hired DKas the high-voltage subcontractor. DKhired Myers to install the switchgear forthe system. Khosh worked for Meyers.Khosh was injured while performingwork on the system while it was still ener-gized, two hours before it was scheduledto be shut down for the job. In his com-plaint against Staples, Khosh alleged thatPrivette did not bar his claims because (a)Staples retained control over the workand affirmatively contributed to hisinjuries, and (b) Staples violated nondel-egable regulatory duties by failing tohave a qualified electrical worker presentto supervise the work, and by failing tohave a written procedure for the electri-cal shutdown. The trial court grantedsummary judgment for Staples. Affirmed.

Khosh presented competent evi-dence that Staples retained control over project safety. Its contract with theUniversity required Staples to “keep allphases of the work under its control,”including compliance with safety lawsand regulations. It also required Staplesto implement a job-safety program andinstall safety devices on equipment. Thecontract required Staples to be “exclu-sively responsible” for the health andsafety of subcontractors, and to “exerciseprecaution at all times for the protection

of persons and their property” and tocomply with all safety rules.

But in order to prevail on a retained-control theory, the employee must alsoshow that the hirer made an “affirmativecontribution” to the plaintiff ’s injury.Here, Khosh was unable to make thatshowing. His allegations of Staples’ omis-sions – the failure to provide a writtenplan for the power shutdown, or to havea superintendent onsite, were not suffi-cient. Staples did not directly participatein the construction activities. It did notassist in building the electrical substationor its component parts. Nor did it repre-sent that all steps of the construction had passed inspection before Khoshbegan his work. Staples’ contract with the University imposed only a generalduty to prevent accidents, as opposed tospecific measures that Staples wasrequired to undertake in response to anidentified safety concern.

As for nondelegable duty, the courtheld that the regulations that Khoshrelied on did not create nondelegableduties. And even if they did, he wouldstill be required to show that the breachof the duty made an affirmative contribu-tion to his injury. The absence of a workplan or a supervisor did not affirmativelycontribute to Khosh’s injuries.

Jeffrey I. Ehrlich is theprincipal of the EhrlichLaw Firm, with offices inEncino and Claremont,California. He is a cumlaude graduate of theHarvard Law School, a cer-tified appellate specialist bythe California Board ofLegal Specialization, and a

member of the CAALA Board of Governors.He is the editor-in-chief of Advocate maga-zine and a two-time recipient of the CAALAAppellate Attorney of the Year award.


whether the treatment was provided inthe most economical and medicallyappropriate site. Stonebridge did notcheck the box on its assignment formthat authorized the peer reviewer tocontact Nickerson’s treating physician.The peer-review report concluded thatNickerson could have been transferredout of the hospital “to a more economi-cal and medically appropriate facility”by February 29, 2008. Stonebridgetherefore only paid Nickerson for theperiod between February 11 andFebruary 29. Nickerson appealed, andhad his physician write to Stonebridge,explaining the reasons why the entirehospital stay was necessary. Stonebridgenever showed the letter to the peerreviewer, and denied the appeal, findingthat his confinement in an acute-caresetting was not the most economical andmedically appropriate setting afterMarch 1, 2008.

Nickerson sued. The trial courtdirected a verdict in his favor on breachof contract, finding that the “necessarytreatment” provision in the policy wasfunctionally an exclusion that was notclear and conspicuous. The jury award-ed Nickerson $35,000 in emotional-dis-tress damages, and imposed punitivedamages of $19 million. The trial courtreduced the punitive award to$350,000, ten times the compensatorydamage award on the bad-faith claim.In a prior decision, the Supreme Courtheld that the $12,500 Brandt-fee awardshould be included in the punitiveaward. The Court of Appeal affirmed,but increased the punitive-damageaward to $475,000 (ten times the emo-tional-distress award added to theBrandt fees.)

The Court held that Stonebridge’sbehavior was highly reprehensible —satisfying four of the five reprehensibilitysubfactors prescribed by the U.S.Supreme Court. Specifically, the Courtheld that the harm evinced a reckless indifference to Nickerson’s health; thatNickerson was financially vulnerable; thatthe conduct was not an isolated incidentbecause Stonebridge used its unenforce-able “necessary care” provision to deny

the claims of many insureds; and that theconduct evidenced trickery or deceit byStonebridge.

Short(er) takes:

Excessive damages; appellate reviewBigler-Engler v. Breg, Inc. (2016) _Cal.App.5th _ (4th Dist., Div. 1)

In 2003, Whitney Engler, then ahigh-school athlete, suffered a kneeinjury and consulted Dr. David Chao, an orthopedic surgeon. Chao performedarthroscopic surgery and recommendedthat Engler use a Polar Care device aftersurgery. The device is available only byprescription, and treats the affected areawith cold water circulated through a padover the injury. Chao’s medical grouprented the device to Engler. She usedthe device as directed and developednecrotic tissue on her knee. Sherequired outpatient surgery to removethe dead tissue, leaving a large openwound that took nine procedures toclose. These procedures were verypainful. When the wound healed it left a4-inch by 3-inch scar over her knee. Shelater had two scar-reduction surgeries,which by trial in 2012 left her with a“modest but noticeable scar across thetop portion of her knee.” The areaaround the scar was painful to thetouch. Engler was left with some func-tional limitations – including weaknessand pain while kneeling. She could nolonger ride horses competitively, haddifficulty with some dance styles, andhad trouble riding her bicycle accompa-nied by her leashed dog.

The jury awarded her $3 million for past non-economic damages and$2,127,950 for future non-economicdamages, (totaling $5,127,950.) TheCourt of Appeal reversed this as exces-sive and remitted the award to$650,000 for past and $650,000 forfuture non-economic damages. Thecourt held that in the nine yearsbetween Engler’s last medical procedureand the trial, her medical condition hadimproved steadily and dramatically. By

the time of trial, her pain was at a lowlevel, intermittent, and confined to thearea around her scar. Her daily activi-ties had returned to normal except forminor physical limitations, her scar wassmall and far less noticeable, and heranxiety and stress had substantiallyimproved. On the record before it, thejury’s $5.1 million award was excessive,and appears to have been the result ofmisconduct by her counsel, whichimproperly influenced and inflamed the jury.

Legal malpractice; statute oflimitations: GoTek Energy, Inc. v. SoCal IPLaw Group, LLC (2016) _ Cal.App.5th _(2d Dist., Div. 6)

SoCal IP Law Group (“SoCal”) wasGoTek’s patent counsel. SoCal informedGoTek that it had failed to timely filepatent applications for GoTek. Uponlearning that GoTek planned to file a malpractice action against it, onNovember 7, 2012, SoCal sent GoTekan email stating that it was withdrawingas its counsel, and that it no longer rep-resented GoTek. On November 8,GoTek asked SoCal to transfer its file toanother lawyer. The files were trans-ferred to the new lawyer on November15, 2012. GoTek filed its legal-malprac-tice action against SoCal on November14, 2013. The trial court grantedSoCal’s motion for summary judgmentfor failure to file the action within theone-year statute of limitations for legalmalpractice, Civil Code § 340.6.Affirmed.

The court held that SoCal’s repre-sentation of GoTek ended by November8, 2012 – the date that GoTek askedSoCal to transfer its file to new counsel.This request demonstrated that GoTekhad agreed to SoCal’s withdrawal as itscounsel as of November 7, 2012. Thedate that the files were transferred didnot define when SoCal stopped repre-senting GoTek. Since GoTek’s action wasfiled more than one year after it wasaware of its claim, and there was notolling for “continuous representation”past November 8, 2012, GoTek’s actionwas not timely filed.

Appellate, continued from Previous Page

Ehrlich

�

BY MILES B. COOPER

The lawyers sat there, stunned. The doctorsat across from them, giving the couple time toabsorb the information. Their three-year-olddaughter’s cough and fever? Not pneumonia.Cancer. A tumor. A big one, crushing the littlegirl’s right lung. Rare – a few hundred report-ed cases. And tough odds. Chemo, a surgery,

more chemo. A year-long process and the hope that it doesn’trecur… because recurrence with the particular cancer does notend well.

They had a fight on their hands, a big one. But they weretrial lawyers, used to hard battles. This time, though, theyneeded to marshal the best medical decision-making insteadof the evidence. And they needed to stay centered in the faceof turbulent emotions.

A fight’s a fight

High stakes. Emotional investment. The ability and desireto affect outcome combined with the inability to completelycontrol outcome. Sound familiar? It is any case in a lawyer’soffice, any fight worth fighting. But how does one engage con-sciously without letting emotional distraction overwhelm? Howdoes one avoid getting so tied to outcome that anything lesstarnishes all that follows? We all know how to handle victory.(We strut around singing, “We are the champions…”) But howdo we handle loss? And not loss as in, “Darn, I thought I’d dobetter on this sheet of Scratchers,” but loss as in, “My clientwon’t get justice, she’ll be destitute, and I sunk years of my lifeand hundreds of thousands of dollars into the case.”

Old Greek dudes

Philosophers tackled this challenge a long time ago. TheStoic school considered the hard learnings imbued in what weperceive as loss. The Stoics suggest we must know ourselves,that our power comes from within, and that our power overthe external is limited. Attaching all hope and glory to theexternal, then, dooms us to disappointment. Stoic philosophyis popular in military circles. One of the best known modernStoics was Admiral James Stockdale, who spent seven years asa prisoner of war in Vietnam. Don’t judge him for his much-lampooned vice-presidential debate appearance until you’veread his treatise, Courage Under Fire. It chronicles his Stanfordgraduate school work in stoic philosophy and how the learn-ing helped him survive brutal torment.

Stockdale draws heavily on Epictetus, a former Greekslave whose teachings were compiled by one of Epictetus’s stu-dents. Epictetus’s thoughts are summarized in The Enchiridion.It is easily found online and a short read. Like anything out

of its period, not everything translates. The onion and shell-fish metaphor probably meant something then that is lost onus today in the same way that a hip-hop reference to “Boknows” (something) is lost on a Millennial.

Stoicism should not be confused with stone-faced emotion-al suppression. The Stoics recognized humans are emotional.But rather than let outside attachments direct our emotions,we let our emotions pass through us and move on. One canwork into a lather over something or one can accept the out-come, be one with it, and move forward. It may not be theroad we wanted, but it is the road we are on. We might as welltry to make the journey interesting. A perfect Stoic might besick but happy, in peril but happy, dying but happy.

Rage, rage against the dying of the light

A Stoic approach does not translate to simply taking whatcomes, however. Military strategists, driven to win, would notteach it at the academies were that the case. We as lawyers doeverything in our power to tilt the outcome in our clients’favor. We rejoice when they win. We weep when they lose. Wemake sure we did everything we could on their cases. And wego on, taking up the next case with the same vigor. For that isthe only way. Not to be blinded by winning arrogance or los-ing ourselves in doubting quagmires. To be aware of the emo-tional pendulum’s pull and move beyond it. To stay in thatmoment, not the prior one or the next. A Jedi lawyer, inmind, body, and spirit.

Outro

As regular readers may know, the lawyer in the introduc-tion is usually me. This time is no different. As I write this I sitby our daughter, Dylan. She sleeps in a darkened hospitalroom. Pumps whir gently, one feeds her, others infuse potentmedicines. I cannot control whether she will live or die. Butwe can do everything in our power to tilt the outcome in herfavor. I will rejoice if she survives. I will be heartbroken if shedoes not, despite my stoic efforts. I will know that we dideverything we could to help her no matter what the outcome.And we – my wife, our son – will go on living. Hand in handwith her, hopefully. Or with her in our hearts, if we must.

Miles B. Cooper is a partner at Emison Hullverson LLP. He represents people with personal injury and wrongful death cases.In addition to litigating his own cases, he associates in as trial coun-sel and consults on trial matters. He has served as lead counsel, co-counsel, second seat, and schlepper over his career, and is a member of the American Board of Trial Advocates. Cooper’s interestsbeyond litigation include trial presentation technologies and bicycling(although not at the same time).


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December 2016 Plaintiff magazine · 2016-11-30 · From To Kill a Mockingbird to finding success...

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Transcript of December 2016 Plaintiff magazine · 2016-11-30 · From To Kill a Mockingbird to finding success...