The Failure to File Proper Appellate Briefs Can End in Disaster for Your Appeal

On July 27, 2017, the Third District Court of Appeal published a decision in Ewaid v. Nationstar Mortgage, LLC In that case, the court never reached the merits of the appeal because of the manner in which the appellate briefs were prepared. Appellant’s counsel did not state the applicable standard of review, did not cite or discuss relevant legal authority and did not file a reply brief. The result, the judgment against the appellant was affirmed and the appeal was a complete waste of time.

This decision provides an extreme example of how arguments can be lost due to the manner of presentation. Even experienced trial lawyers who do not regularly handle appeals can miss some of the nuances of appellate law practice and can get in the way of a Court of Appeal understanding and ruling on the merits of arguments.

Jeff Lewis is an experienced appellate attorney who can advise you about the specifics of your appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to an appeal in your matter, consider retaining a certified appellate specialist as your lawyer or co-counsel on appeal. Don’t wing it, win it.

Three Ways to Guarantee that the Court of Appeal Ignores Your Arguments

How can an appellate specialist help you present your arguments on appeal? Sometimes having assistance in preparing a complete appellate record and supporting legal arguments with citations can ensure that the appellate court actually understands and hears the merits of your arguments. The Third District Court of Appeal issued an opinion on May 1, 2017 that is illustrative. In Stover v. Bruntz (May 1, 2017 No. C077206) two parties — Stover and Bruntz — represented themselves in an appeal. Several facts and arguments were not successful due to the brief writing and appellate record issues in the appeal.

Stover wanted to argue on appeal that by accepting the benefits of the lower court order, Bruntz had waived an argument. The Court of Appeal observed:

We note that, Stover’s brief also makes a passing reference questioning whether Bruntz can appeal the court’s order because she allegedly accepted certain child care support payments following the trial. But he does not support the argument with any reasoned analysis or citation to authority. We therefore deem the issue waived.

Bruntz attempted to refer to a motion for relief she had filed but the Court of Appeal wrote:

While Bruntz claims she filed a motion for relief pursuant to Code of Civil Procedure section 473.5, she does not include any such filing in her appendix on appeal. (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364[“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two”].)

Bruntz also raised an argument without citing to the appellate record:

Bruntz also contends without any citation to the record that the court found the April 2007 order ambiguous which could not be enforced by contempt. The court’s order itself contains no such finding. The court, moreover, did find Stover in contempt for the six month period from February 2011 to July 2011, which was the subject of Bruntz’s second order to show cause for contempt. In light of the above, and given our conclusion that retroactive modification is only permitted to the date a motion to modify is filed, we need not address Bruntz’s improperly raised ambiguity argument. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte) [“If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived”].)

As to both parties, the Court of Appeal observed:

Both parties’ briefs make numerous factual assertions without any supporting citation to the relatively sparse record, which does not contain a reporter’s transcript or settled statement of the trial proceedings.

The Stover v. Bruntz decision provides extreme examples of how arguments can be lost due to the manner of presentation. The parties in this case were self-represented. However, even experienced lawyers who do not regularly handle appeals can miss some of the nuances of appellate law practice and can get in the way of a Court of Appeal understanding and ruling on the merits of arguments.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to an appeal in your matter, consider retaining a certified appellate specialist as your lawyer or co-counsel on appeal. Don’t wing it, win it.

SLAPP’d in Boston: Massachusetts High Court Waters Down First Amendment Protection

California’s anti-SLAPP law protects persons who are unfairly targeted in a lawsuit arising from activities protected by the First Amendment. A defendant who is sued for speaking out at a city council meeting or filing a lawsuit can invoke the anti-SLAPP statute and obtain a quick dismissal of a frivolous case. California’s courts have long held that there is no “intent to chill” requirement to obtain a dismissal. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67). The plaintiff’s intentions in filing a lawsuit are “ultimately beside the point.” (Ibid.)

Today, Massachusetts’ high court issued a decision that substantially waters down anti-SLAPP protection in that state. In Blanchard v. Steward Carney Hospital, Inc. (May 23, 2017 No. SJC-12141), the high court ruled that a plaintiff can avoid a dismissal if it can demonstrate that the lawsuit was not filed primarily to chill a defendant’s First Amendment rights. This is a low-threshold that will be easily met by the great majority of plaintiffs in Massachusetts opposing anti-SLAPP motions. Hopefully, California will not follow this direction and introduce a “good faith” intention exception to California’s robust anti-SLAPP statute.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel. Don’t wing it, win it.

SLAPP’d in LA: California Supreme Court Narrows the Reach of California’s Anti-SLAPP Law

This post is part of a series on California’s anti-SLAPP law from the perspective of Los Angeles appellate and trial attorney, Jeffrey Lewis. The First Amendment and California’s anti-SLAPP law have long been held to protect litigation related activities. Filing a lawsuit, for example, is protected by the First Amendment. Statements made in court proceedings are likewise protected. If a defendant is sued for such litigation activities, the defendant can usually quickly obtain a dismissal by filing an anti-SLAPP motion.

This month the California Supreme Court issued an opinion that narrows the application of California’s anti-SLAPP law. In Park v. Board of Trustees of the California State University (May 4, 2017 No. S229728), the Supreme Court considered the following question: What nexus must a defendant show between a challenged claim and the defendant‘s protected activity for the claim to be struck?

In Park, a professor applied to a university for tenure. The application was denied. He sued the university alleging discrimination. The university responded with an anti-SLAPP motion. The university argued that the communications leading up to the decision to deny his application were protected by the First Amendment and subject to the anti-SLAPP law. The trial court denied the motion and found that the decision to deny tenur

The trial court denied the motion. It agreed with Park that the complaint was based on the University‘s decision to deny tenure, rather than any communicative conduct in connection with that decision, and that the denial of tenure based on national origin was not protected activity, so the University had not carried its burden of showing Park‘s suit arose from protected activity within the meaning of section 425.16, subdivision (e). Accordingly, the trial court did not reach the second step of the anti-SLAPP inquiry. The Court of Appeal reversed and the California Supreme Court restored the trial court ruling finding that the anti-SLAPP motion should not have been granted. The Supreme Court reviewed a number of appellate court decisions that have properly respected the difference between “activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.” The Park decision represents an important limitation on the scope of anti-SLAPP motions that might otherwise insulate abusive judicial and legislative activities from judicial review.

Slapp’d in Butte County: Funding a Lawsuit Held Protected by the First Amendment

Last month, the Third District Court of Appeal issued its ruling in Sheley v. Harrop (March 20, 2017 No. C077747). In Sheley, the court ruled that funding a lawsuit is an activity protected by the First Amendment and California’s anti-SLAPP law. In footnote 8 of the opinion, the Sheley court ruled:

We disagree with the court to the extent that it concluded that spending money to fund a lawsuit does not constitute protected activity within the meaning of the statutory scheme.

This opinion represents a significant expansion of protection of the First Amendment for defendants targeted in a lawsuit.

SLAPP’d in Palos Verdes: the Intersection of Free Speech and HOA Law

A Strategic Lawsuit Against Public Participation or “SLAPP” is a civil lawsuit brought to either prevent or punish another person for exercising their First Amendment right to petition the government or to speak about public issues. The primary purposes of these lawsuits is to use the courts to obtain economic or other coercive leverage over the defendants unrelated to the merits of the underling claims. In 1992, California enacted Code of Civil Procedure section 425.16, the anti-SLAPP statute, as a response to these types of lawsuits. Prior to the enactment of Section 425.16, the defendants would spend years in litigation and be out of pocket thousands of dollars in attorney’s fees before their First Amendment rights were vindicated. With the protection of Section 425.16 in place, a defendant can now very quickly get a ruling on the merits of the case, get the case dismissed and get all of his attorney’s fees paid for. A defendant who believes he has been named in a SLAPP lawsuit may file a special motion to strike which, if granted, results in a dismissal of the case and immediate right of appeal.

In Colyear v Rolling Hills Community Association of Rancho Palos Verdes (Feb. 28, 2017 B270396), the Second District Court of Appeal heard a case involving First Amendment issues, California’s anti-SLAPP law and homeowners association proceedings. This is not the first time California courts have addressed First Amendment rights in the context of HOA proceedings. Prior decisions have found that statements made in connection with HOA board elections are protected activity and fall within the scope of California’s anti-SLAPP statute. The opinion in Colyear found that a person who files an application with a homeowners association and thereafter is sued based on that application may file an anti-SLAPP motion in response. In other words, the action of filing an application with a homeowners association — in this case a view dispute — is an action protected by the First Amendment and is subject to anti-SLAPP motions:

the issue was an ongoing topic of debate between the board and homeowners, resulting in multiple hearings, letters, and several changes to the board’s policy on the matter starting as early as 2002 and continuing up to the current dispute. In this context, Liu’s application sought to invoke the HOA process at the center of that dispute

This decision is another in a continuing trend in expanding the scope of anti-SLAPP protection. Lawyers practicing in the area of Homeowners Association law may find themselves unwittingly making or opposing an anti-SLAPP motion if the informal procedures of the HOA spills into the Superior Court.

SLAPP’d in San Bernardino: Public Defender’s Retaliation Lawsuit Deemed a SLAPP

In an unpublished decision on Friday, Division One of the Fourth Appellate District ruled that a retaliation civil claim filed by a former public defender against the County of San Bernardino was a Strategic Lawsuit Against Public Participation (“SLAPP”) and subject to accelerated scrutiny and dismissal under California’s anti-SLAPP law. In Lawrence v. County of San Bernardino (Dec. 12, 2014 D066204), the Court reviewed a decision by Judge Donna G. Garza granting in part and denying in part an anti-SLAPP motion. The Court of Appeal held that the entire action was subject to anti-SLAPP review and because the plaintiff could not prove a probability of prevailing on his claims, the entire action was ordered dismissed. Lawrence alleged that he was investigated and fired as a public defender as retaliation for reporting his superiors for conflict of interest and other rules. The Court of Appeal ruled that all of his claims arose from the investigation into Lawrence and the ensuing dismissal. Without the investigation into Lawrence, the plaintiff would have no retaliation claim. Internal investigations of misconduct by government employees are protected activity giving rise to anti-SLAPP protection. Former public defender Jeffrey Lawrence had been investigated for, among other things, allegedly secretly redacting statements from a witness interview before disclosing the interview to the prosecutor in discovery. On appeal, Lawrence was required to detail in his brief the facts demonstrating a probability of Lawrence prevailing against the County. This is an admittedly low burden. However, Lawrence’s respondent’s brief did not include a single citation to the appellate record. Instead, he invited the Court of Appeal to review 139 exhibits filed in the trial court to find support for Lawrence’s arguments. As a matter of procedure, the Court of Appeal found this improper and found that Lawrence forfeited the issue on appeal.

The teachings of the Lawrence case are two-fold: First, before filing a lawsuit that touches upon activities protected by the First Amendment, such as internal investigations, a plaintiff needs to consult with an experienced anti-SLAPP attorney to ensure that sufficient evidence exists at the outset of the lawsuit to withstand the inevitable anti-SLAPP motion. Otherwise, the plaintiff will find themselves on the losing end of an anti-SLAPP motion and a hefty attorney’s fee award. Second, on appeal, there is no excuse for forfeiting an issue because of not citing the appellate record. An experienced appellate attorney, familiar with appellate procedural rules, can ensure that arguments are preserved on appeal and considered on their merits. While no appellate attorney can guarantee a victory on appeal, an experienced appellate attorney can maximize the chances that the argument will be presented in its best light and in a manner that appellate justices expect to see it.

The Intersection of Budget Cuts and Due Process

Due to budget constraints, the Los Angeles Superior Court no longer provides a court reporter for most law and motion matters. Instead, parties must prearrange and privately pay for a court reporter to transcribe a hearing. If no reporter transcribes the hearing and if some record of the hearing is needed for an appeal, an appellant must then proceed by way of an agreed statement under Rule 8.134 (where the parties agree to a summary of what happened at the hearing in lieu of a reporters transcript) or a settled statement under Rule 8.135 (where the trial court approves a summary of what happened at the hearing in lieu of a reporter’s transcript). The process of an agreed statement or settled statement may fall short of accurately portraying what occurred in court. Time and biases inevitably color the record.

On November 4, 2014, Division Seven of the Second District Court of Appeal issued its opinion in Maxwell v. Dolezal (Nov. 4, 2014, B254893). The plaintiff in that case had appealed an order sustaining a demurrer without leave to amend. The Court of Appeal reversed. Putting the merits of the appeal aside, Associate Justice Laurie D. Zelon’s opinion in Maxwell made the following observation:

No court reporter was present to transcribe the hearing on the demurrer. Aware that there was no record of the oral proceedings, the court nonetheless rested its decision on the demurrer in part on “the reasons stated in open court” without setting forth in the ruling what those reasons were. Similarly, the court justified its denial of leave to amend the complaint in part on Maxwell’s failure to articulate a basis “in open court” to support his request for leave to amend, but it did not describe the showing Maxwell had made at the hearing. In this case, because the correctness of the court’s ruling with respect to the first cause of action and its error with respect to the second were both readily apparent from a review of the operative complaint and the demurrer, neither a transcript of the hearing nor the court’s statement of specific grounds for its ruling (Code Civ. Proc., § 472d) was essential to permit effective appellate review. However, we view this case as an exception. We remain profoundly concerned about the due process implications of a proceeding in which the court, aware that no record will be made, incorporates within its ruling reasons that are not documented for the litigants or the reviewing court.

This case underscores the growing gap between the justice available to wealthy litigants who can afford to pay for court reporters and litigants of modest means who may be denied due process because no record is made of their hearing. The latter group of litigants must resort to no record (in which case appellate courts will frequently not even review an issue if there is no transcript) or an inferior record (a settled statement or agreed on statement) that does not accurately portray what occurred at the hearing.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your writ or appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to an appeal in Los Angeles or Orange County, consider hiring a certified appellate specialist as your lawyer or co-counsel. Don’t wing it, win it.

Checking the Wrong Box Almost Ends Appeal Before it Starts

On Friday, the Third Appellate District in California issued an opinion in Ellis Law Group v. Nevada City Sugar Loaf Properties (Oct. 3, 2014 C072820). The appellate proceeding arose from an attorney’s fee award following a successful anti-SLAPP motion by a law firm, Ellis Law Group. Ellis Law Group was awarded $14,553.50 in attorney’s fees by the trial court and the court of appeal reversed the fee award. The opinion was interesting for three reasons.

First, the opinion’s opening line was memorable and, sadly, true: “This case illustrates that ‘[a]ll too often attorney fees become the tail that wags the dog in litigation.’ (Deane Gardenhome Assn. v. Denktas (1993) 13 Cal.App.4th 1394, 1399.)”

Second, the appellant almost lost the appeal before it even started by checking the wrong box on the judicial council form notice of appeal. The appellant had checked the box indicating that the appeal was from an “order or judgment under Code of Civil Procedure section 904.1(a)(3)-(13).” That was not the correct box to check to appeal from an order awarding attorney’s fees. On appeal, Ellis Law Group argued that checking the wrong box was fatal to the appeal. Fortunately for the appellant, the Court of Appeal applied California’s public policy of liberal construction of notices of appeal and deemed the notice of appeal “sufficient” despite the wrong box being checked.

Third, although generally a prevailing party in an anti-SLAPP motion is entitled to an award of attorney’s fees, this is not the case where the prevailing party is a law firm that chooses to represent itself during the anti-SLAPP proceedings. Here, the prevailing party used the services of a contract lawyer who, for the most part, identified himself as a member of the Ellis Law Group. The Court of Appeal was not impressed with Ellis Law Group’s arguments that its lawyer was a mere contract lawyer. The tax treatment and compensation of a lawyer is not dispositive of whether the attorney is a member of the prevailing party law firm for purposes of the anti-SLAPP motion. More convincing was the attorney’s apparent self-identification as a member of the Ellis Law Group on pleadings and communications. The $14,553.50 fee award was, therefore, reversed. A law firm that wishes to avoid the impact of this ruling in the future needs to retain truly outside counsel to recover attorney’s fees in an anti-SLAPP motion.

An appellant cannot always count on an appellate court to forgive a defective notice of appeal. All too often meritorious arguments are waived and never considered on appeal due to mistakes made by lawyers inexperienced in the subtleties of appellate procedure in California. Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your writ or appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to an appeal in Los Angeles or Orange County, consider hiring a certified appellate specialist as your lawyer or co-counsel. Don’t wing it, win it.

Four Things Every Trial Lawyer Should Know About Civil Writs

This post is the sixth in an ongoing series about maximizing a party’s chances of prevailing on appeal. A frequently asked question by trial lawyers is whether and when to seek review of a trial court order by way of a petition for writ of mandate or prohibition (“writ”) instead of a direct appeal following entry of judgment. Here are four things every trial lawyer should know about filing civil writs in California’s courts of appeal:

1. Sometimes writs are the only way of securing appellate review of an order. Certain orders are only reviewed by way of a writ. The failure to file a writ will preclude appellate review after the judgment. Four Continue reading “Four Things Every Trial Lawyer Should Know About Civil Writs” →