The California Appellate Law Podcast

Couldn’t make this year’s ClioCon? Don’t know why you would if you could? Jeff is on location in Austin, Texas, and reports in on the latest legal tech trends, like:

• The death of the billable hour? A review of attorney tasks suggests 70% could be done with AI. This could mean more shops switch to flat fees. It could mean they increase their hourly rates. But if you’re not even in the AI game, you may soon find yourself among the dinosaurs.
• Worried that AI will steal from your billing? Wisetime does the opposite—it tracks what you do so that you bill more time, not less. It’s a chatbot on steroids.
• Clio Duo is another “gateway drug” to AI, giving attorneys and staff an AI assistant to fetch details from the Clio matters.

We also discuss the new Doxing Victims Recourse Act, Civil Code section 1708.89, which creates a cause of action for online doxing—publishing a person’s personal identifying information (including a photo) with the intent of causing harm to that person. Another dicey intersection between harassment and Free Speech.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

• Wisetime for Clio.
• Clio Duo.
• The Battle for Your Brain, the book by Duke Prof. Nita Farahany who spoke at Clio Con about neuro technology.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

In a (non)definitive survey of writing instruments, big-law attorney turned solo employer counsel Michelle Strowhiro reveals her pick for the best pen for lawyers.

Then we turn to the U.S. District Court of Texas ruling in Ryan LLC v. FTC, blocking an FTC rule that would ban non-competes. This rule would eliminate trade restraints already banned in California. What comes next?

Michelle Strowhiro’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

The Supreme Court of California isn’t always interested in money disputes, but throw attorney misconduct into the mix and you get the City of LA v. Pricewaterhousecoopers reinstating a sanction for “egregious” city attorney’s office collusion totaling $2.5 million.

Angling for contractual attorneys’ fees in your defense? The recent Am. Bldg. Innovation v. Balfour Beatty Constr. case reminds attorneys to consider whether asserting the contract in an affirmative defense is enough, or if you need to file a cross-complaint.

We also discuss:

• Family law contingency agreements are invalid.
• Was the directed verdict for the NFL appropriate in the $14 billion antitrust case? The judge ruled that the plaintiffs’ expert opinion should have been excluded. But isn’t the remedy pretty clearly a new trial rather than JMOL?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

• City of Los Angeles v. Pricewaterhousecoopers, LLP, Case No. S277211 (Cal. Supreme Ct. Aug. 22, 2024) (published). Previously discussed in “PMQ Declarations, Extortion & AI Judges”, and **$2.5M Discovery Sanction Reversed Because Not Authorized by a Specific Statute, But Justice Grimes Pens a Strong Dissent.**
• **Prevailing on a Contract Affirmative Defense Gives Rise to Civ. Code § 1717 Fees** Am. Bldg. Innovation v. Balfour Beatty Constr. (D4d3 Sep. 3, 2024) No. G062471 [pub. opn.]
• Wright v. Wright, Case No. B330901 (2d Dist., Div. 1 Aug. 23, 2024) (unpublished) via CalAttorneysFees.com
• Judge Philip S. Gutierrez entered judgment as a matter of law for the NFL
• Reductio ad arbitrium absurdum: Disney wants to kick a wrongful death lawsuit in Florida to arbitration.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Los Angeles Superior Court will now offer electronic recordings where a court reporter is not available. But not all courts have the equipment. And even if they do, by statute these recordings may not be used to create an appellate record. So what does it mean?

Also, the Supreme Court in Meinhardt v. City of Sunnyvale has confirmed that orders granting writs of mandamus are not appealable—you have to wait for the judgment.

So how did the Court of Appeal in **Wastexperts, Inc. v. Arakelian Enters.** reverse a pre-judgment anti-SLAPP order while leaving the judgment intact?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

• the murder conviction against Adnan Syed, discussed on the podcast *Serial,* reinstating Syed’s conviction for the murder of Hae Min Lee.
• LASC 9/5 General Order
• Ben Shatz’s blog write up of the LASC electronic recording order
• Meinhardt v. City of Sunnyvale
• **Are Anti-SLAPP orders “judgments”?. Wastexperts, Inc. v. Arakelian Enters.** (D2d4 Jul. 11, 2024 No. B325299) [pub. opn.]
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

After discussing SCOTUS voting blocs and public perception, in part two of our discussion Adam Feldman rounds up the 2023-2024 term. We cover:

• SEC v. Jarkesy, holding that 7th Amendment procedural rights apply in agency proceedings, and whether Adam is surprised at the voting alignment (conservatives pro, liberals con).
• Loper Bright v. Raimondo, overruling Chevron, and what to make of the liberal bloc joining the government in both these administrative state cases.
• CFPB v. Comm. Fin. Svcs Assn, holding that CFPB funding fits with history and tradition, and whether Adam was surprised that Justice Thomas broke with the conservative group to join.
• Trump v. Anderson, holding the 14th Amendment did not disqualify Trump from the ballot, and whether Adam was surprised it was 9-0.
• Fischer v. U.S., holding 18 USC 1512 (prohibiting congressional obstruction) does not apply to Jan. 6, and whether Adam was surprised that Justice Jackson joined, and Justice Barrett dissented.
• Rahimi, holding the text, history, and tradition test supports civil restraining order disarmament, and whether Adam was surprised the court even took this case, and surprised that the court only issued GVRs on companion cases, despite there being so many Rahimi concurrences. (Akhil Amar, renowned constitutional scholar and an originalist of a liberal variety, has an interesting take on Rahimi at his podcast here.)

Adam Feldman biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Empirical SCOTUS, https://empiricalscotus.com/
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.
• Legal Data Analytics | Optimized Legal Solutions (feldyfied.wixsite.com)

Adam Feldman watches Supreme Court trends: voting blocs both usual and unusual, numbers of concurring and dissenting opinions, and other analytical ways of predicting outcomes. In our discussion, we cover:

• Recent polls disapprove of how the Supreme Court “is handling its job.” What does “handling its job” mean? Does it mean outcomes, or the decision-making process? And how does Adam rate how the Supreme Court is handling its job?
• Is this a 6-3 court? Or a 3-3-3 court?
• Is it fair to group justices along lines of “institutionalist” and “non-institutionalist,” as some experts have done?

We then tee things up to do a round up of the 2023-2024 term.

Adam Feldman biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Empirical SCOTUS, https://empiricalscotus.com/
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.
• Legal Data Analytics | Optimized Legal Solutions (feldyfied.wixsite.com)

While the Supreme Court wrapped up its term, the Ninth Circuit had some interesting cases of its own. Carjacking is “nonviolent,” for-profit prisons are constitutional, and Covid vaccine religious exemptions are on the table. Practitioners might also look forward to focus letters and earlier panel notifications. All this and other recent cases and news.

• Carjacking is nonviolent? Gutierrez v. Garland
• Private prisons are not unconstitutional: Nielsen v. Thornell
• Religious exemption to Covid vaccine mandate may proceed: split panel in Bacon v. Woodward
• Arb costs denial reversed: Sanzone v. DCH Korean Imports, LLC
• No meet and confer, get sanctioned. *Gordon v. Chandler (Estate of Ambrose-Gordon)*
• A minute order is not a statement of decision. O'Neill v. Cara
• Judge VanDyke’s “disgrantle”, U.S. v. Duarte aka Shorty
• Assembly Member Garcia has proposed a bill to allow for the disqualification of appellate justices:AB-2125 Judicial officers: disqualification
• In a recent column, Justice Bedsworth states he is Trying to Retire, Again

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

• Read the full article here: https://bit.ly/3yCDzeA

A ransomware attack hit the Los Angeles County Superior Court in July 2024, affecting e-filing services. Did you miss a filing deadline because of this? We discuss two Rules of Court that could help.

We also cover:

• Are anti-SLAPP orders “judgments”?
• Court of Appeal to litigants: Your adverbs are unwelcome here. Ok to say “The order is erroneous.” But not “The order is transparently erroneous.”
• Appeal might be actually late, but constructively on time.
• Two anti-tax initiatives struck down: one too broad, the other too narrow.
• On HOA Christmas party ban, a split 9th Cir. panel with three opinions.
• If you are “seriously annoying” you can get hit with a restraining order, but not for being regular annoying.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Lawyer Toolkit: Untimely Appeals May Be Excused If There Was a Mishap with E-Filing, discussing Garg v. Garg (2022) 82 Cal.App.5th 1036, 1041–1042
• Are Anti-SLAPP orders “judgments”? Wastexperts, Inc. v. Arakelian Enters. (D2d4 Jul. 11, 2024 No. B325299) [pub. opn.] (Tim’s writeup)
• Late appeal deemed constructively filed on time, In re Santos (D5 Jun. 6, 2024 No. F087859) [nonpub. opn.] (Tim’s writeup)
• Keeton v. Tesla, Inc.: arb-killer late-fee penalty NOT preempted by FAA
• Legislature v. Weber: Tax initiative held invalid because too broad
• Loeber v. Lakeside Joint School District* Tax initiative held invalid because too narrow

Read the full article here: https://bit.ly/4dsSvL4 

Previously in part one, criminal-defense attorney Don Hammond explained why, post-Bruen, states may no longer impose discretionary constraints in concealed-carry permitting regimes. But will that change after the Supreme Court’s recent 8-1 decision in Rahimi, holding that a restraining order prohibiting a particularly violent actor from possessing firearms was consistent with the Second Amendment tests under Heller and Bruen? **

Rahimi, when attempting to comport it with Heller and Bruen, **gets a bit confusing—so what are lower courts to do with it? But one thing Rahimi did emphasize is the actual violence Rahimi committed—so would California’s authorization of disarming restraining orders merely to protect “mental calm” pass muster? Then we circle back and ask: if the Legislature amended the CCW laws to make nondisclosure a ground for denying a CCW, would that pass muster under Rahimi?

The answer seemed easy a few weeks ago, but is suddenly a bit more difficult.

Don Hammond’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Don Hammond, Bad facts make bad law: Rahimi, Daily Journal, Jun. 27, 2024
• New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022)
• United States v. Rahimi, No. 22-915 (Jun. 21, 2024)
• E.g., Parris J. v. Christopher U., 96 Cal.App.5th 108, 116 (Cal. Ct. App. 2023)
• Tim’s article, SCOTUS approves disarmament on restraining orders for “physical safety” but suggests limits
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Justice Anita Earls of the North Carolina Supreme Court knows about some reforms that will improve our justice system. But she also knows about some that will provoke an unhappy response—including an investigation against her personally.

In this second half of our interview, Justice Earls talks about how she found herself under investigation for calling for judicial reform.

We previously asked Aliza Shatzman why the Legal Accountability Project is necessary: don’t judges police their own, we asked? The answer is: yes, but not in the way you’d hope.

Anita Earls’ wiki, LinkedIn profile, and Twitter/X feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

• https://www.fd.org/news/lone-black-nc-supreme-court-justice-drops-suit-over-diversity-comments-probe-dropped
• https://apnews.com/article/north-carolina-justice-ethics-drops-lawsuit-24763cfa64aca0fc58e559ca4ffe5cf9
• https://www.nytimes.com/2023/08/31/us/north-carolina-supreme-court-anita-earls-bias.html
• https://news.un.org/en/story/2024/02/1146202
• https://apnews.com/article/north-carolina-supreme-court-justice-ethics-panel-b9ce0a7b9e5ab2c7dcbed02d6c74faed
• Additionally, an interview she conducted with State Court Report and NYU Law Review: https://statecourtreport.org/our-work/analysis-opinion/conversation-justice-anita-earls-north-carolina-supreme-court
• Episode 39 with Aliza Shatzman on the Legal Accountability Project.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.