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.

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 Butte County: Funding a Lawsuit Held Protected by the First Amendment

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.

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.

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.

 

 

 

 

Discovery Permitted in Public Records Act Litigation

In California, the Public Records Act allows citizens to request that the government produce documents relating to the operation of the government. When the government and the citizen have a dispute on whether the government has complied, a citizen can file a lawsuit to compel the government to produce the requested documents. This is known as Public Records Act litigation. This month, the California Court of Appeal ruled that a party in Public Records Act litigation can use the discovery process under the California Discovery Act.  The case is City of Los Angeles v. Superior Court (March 2, 2017 No. B269525).  This is a significant decision because no longer will a citizen have to accept the government’s word regarding the existence and location of public records. Discovery can now be used to assess and verify the government’s position in responding to Public Record Act requests.

 

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.

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.

Statements Made in HOA Recall Election Campaign are Subject to Anti-SLAPP Protection

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 Glassner v. Smith (May 4, 2015, A140876), the First Appellate District found that a slander, libel and false light invasion of privacy lawsuit was subject to California’s anti-SLAPP law and should be stricken.  In an unpublished decision authored by Associate Justice Kathleen M. Banke, the court found that a person involved in a Homeowners Association (“HOA”) election campaign is a limited purpose public figure:

“We have no trouble concluding Glassner, who sought out election to and retention on the HOA board, was a public figure, limited to the context of his suitability for HOA.  All of the alleged defamatory statements were made in the context of challenging Glassner’s fitness for the office he had just won.  While the dispute may have arisen partly from petty spite, the composition of the HOA’s board and the decisions it makes are of critical importance to the hundreds of HOA members and other residents of Pointe Marin, for whom the HOA plays the unique role of a “second municipal government.”

The court went on to hold that because all of the statements alleged to be defamatory were true in substance, the lawsuit should be stricken under California’s anti-SLAPP law.  Although this case is unpublished and not citable in California courts, there are lessons to be gleaned from this case:  If you file a lawsuit based on actions arising from the governance of a HOA, it is likely the defendants will file an anti-SLAPP motion in response.  A plaintiff in such a case must be prepared to meet such a motion with evidence to support every element of his claim.  Absent such evidence, the anti-SLAPP motion will likely be granted and the plaintiff will likely be ordered to pay the defendants’ attorney’s fees.  An attorney experienced in anti-SLAPP procedure and the First Amendment can guide a potential plaintiff about the potential pitfalls of filing a lawsuit in this context.

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 Orange County: Court of Appeal Confirms Right to Recover Post-Judgment Fees

California has an anti-SLAPP law that protects defendants from lawsuits brought to chill their First Amendment rights.  The anti-SLAPP law, Code of Civil Procedure, section 425.16, provides  “for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”  (Club Members For An Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315).  When a defendant prevails and obtains an early dismissal under the anti-SLAPP law, a defendant can also obtain an award of attorney’s fees.  California courts have routinely held that the anti-SLAPP law is to be broadly construed to fully compensate a defendant who prevails in filing an anti-SLAPP Motion.

In York v. Strong (March 10, 2015, G049778), Division Three of the Fourth District Court of Appeal considered the right of a defendant, who prevailed on an anti-SLAPP motion and motion for attorney’s fees to recover additional, post-judgment attorney’s fees incurred in collection efforts.  In an opinion authored by Presiding Justice William F. Rylaarsdam, the court held that post-judgment fees — that is fees incurred by a prevailing defendant in collecting costs and fees awarded following an anti-SLAPP motion — are recoverable.

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.

Celebrity SLAPP’d in Los Angeles: Lawsuit arising from American Idol Negotiations Reinstated

California has an anti-SLAPP law that protects defendants from lawsuits brought to chill their First Amendment rights.  When the anti-SLAPP law applies, a defendant can obtain a fast dismissal at the early stage of the lawsuit and get an award of attorney’s fees.  For example, if a person is sued for defamation for writing a negative review on Yelp!, the defendant may bring an anti-SLAPP motion under the theory that the reviewer has a free speech right in connection with consumer protection issues.  Likewise, a defendant sued for malicious prosecution can bring an anti-SLAPP motion under the theory that the defendant’ First Amendment right of petition (access to the courts) has been infringed.  However, not every lawsuit qualifies for anti-SLAPP protection.  Private communications between private individuals generally do not qualify for anti-SLAPP protection.

In Kovac Media Group v. LaPolt (Feb. 26, 2015 B247579), a defendant obtained a dismissal based on a successful anti-SLAPP motion.  The Court of Appeal disagreed, reversed the trial court’s order and reinstated the lawsuit.  From the opinion authored by Presiding Justice Lee Smalley Edmon:

This case arises out of a dispute between a talent manager and an entertainment lawyer over common clients. The manager alleges, among other things, that the lawyer interfered with his attempts to negotiate a lucrative contract for Aerosmith lead singer Steven Tyler to appear on the popular show American Idol, and disrupted the manager’s relationship with the band Mötley Crüe. The manager sued the lawyer, contending that her actions gave rise to multiple causes of action, including for breach of fiduciary duty, breach of the duty of confidence, intentional interference with contract, and intentional interference with prospective economic advantage.

The core of the lawsuit were a pair of emails written about the contract negotiations.  The defendants urged the court to apply the anti-SLAPP law under the theory that the lawsuit concerned communications about an issue of public interest.  The Court of Appeal disagreed.  The mere fact that the email communications mentioned celebrities or the successful show American Idol is not sufficient to transform private email into a communication about a public issue worthy of anti-SLAPP protection.  Because the anti-SLAPP law did not apply, the defendant was not entitled to a summary dismissal of the lawsuit at its early stage.

You can read the original complaint filed in October 2012 by Steven Tyler’s former management company seeking $8,000,000 here and the February 26, 2015 appellate opinion reinstating the lawsuit here.

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.