The California Appellate Law Podcast

Social Media and Jury Waiver High Court Cases, and Other Appellate News

• Tim Kowal & Jeff Lewis • Season 1 • Episode 125

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The U.S. Supreme Court provides awaited guidance on public officials’ use of social media, and the California Supreme Court gives a cautionary tale about waiving the right to a jury trial. Jeff and I discuss:

  • đź“°Free Speech on Government Social Media: Lindke v. Freed (Mar. 15, 2024, No. 22-611), notable for being short and unanimous, holds that, when a public official talks about official business on a private social media page, it’s no longer a private social media page.
  • ⚖️Jury waivers: If you waive, and the trial judge declines to set aside the waiver, it’s game over: any right to appeal is symbolic only.
  • 🤷Also symbolic: the different between waiver and forfeiture. The difference, it is said, is that waiver is intentional. But the Court notes that waiver can also be unintentional. That pretty much obliterates any distinction between the terms, save for spelling.
  • đź‘ŽThe facts were based solely on filed documents, not testimony. So appellate review is de novo, right? Wrong. Appellate courts don’t defer to fact-finding because the trial court is better at it. They defer because it’s not the appellate court’s job description.
  • ⛪A Church of Scientology case involving Leah Remini is poised for an anti-SLAPP appeal.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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

Announcer  0:03 
welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases in news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis,

Jeff Lewis  0:17 
welcome everyone. I am Jeff Lewis

Tim Kowal  0:18 
and I'm Tim Kowal. Both Jeff and I are certified appellate specialists, and as uncertified podcast co host, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always. If you find this podcast useful, please recommend it to a colleague. Yeah,

Jeff Lewis  0:32 
just find it boring or not useful, or prefer it to your opposing counsel. Now, before we jump into this week's discussion of tidbits and cases, we want to thank casetext for sponsoring our podcast. Casetext is a legal technology company that's developed AI backed tools to help lawyers practice more efficiently. Since 2013 casetext is relied on by 10,000 firms nationwide, from solo practitioners to amlaw, 200 firms and in house legal departments. And in March 2023 casetex launched co counsel, the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy. Our listeners enjoy a special discount on caseText basic research at casetext.com/calp, that's casetext.com/calp

Tim Kowal  1:13  
okay, Jeff. We're going to be covering some more cases and tidbits today. We're going to kick it off with a from with a free speech case out of the US Supreme Court, followed by California Supreme Court case on jury waivers. We have a slap anti slap case in the mix there, and then a few other interesting ones. So Jeff, why don't you kick it off for us with the free speech case, the Lindy case out of the US Supreme Court. All right, you know, sometimes

Jeff Lewis  1:37  
I like to talk about free speech cases, and this case caught my eye because, A, it's the United States Supreme Court. B, it was unanimous. Nine justices agreed on something. C, it was super short, really short opinion compared to a lot of what's coming out of the Supreme Court these days. Yeah, maybe

Tim Kowal  1:53 
that's maybe that speaks to how little they they agreed on in the case. If it's unanimous, it has to be short. Maybe,

Jeff Lewis  1:59 
yeah, but I'd be curious if someone could do a study of the relationship between the length of an opinion, the main opinion or and whether or not it's unanimous.

Tim Kowal  2:07  
The longer you write, the more likely you are to lose somebody. The substance of

Jeff Lewis  2:12  
this decision is it addressed a long summary question about how courts should analyze disputes, First Amendment disputes, when public officials block followers on social media. Now it's clear that if a public official on their public official Facebook or Twitter page blocks a follower, there's First Amendment implications there, because it's clearly state action. Well, the court was faced with here, though, is a fuzzier case. What do you do when you have a public official that has a private page sometimes talks about public issues. Say, a county commissioner or a city manager has a private page, but they talk about city politics, county politics, covid, vaccines, those types of things, things that are within the purview of that official's job description. That person block a follower without implicating state action under the First Amendment.

Tim Kowal  3:04 
Yeah, do they do? They get to easily. Just, just point to their their personal hat. Hey, this is my personal hat. This is my personal page. Nothing is in a official capacity. So Nina, Nina, yeah, well, the facts

Jeff Lewis  3:15 
of this case don't lend it to that kind of analysis, because the gentleman in question had a Facebook page where he checked the box saying public figure, and this person fielded questions regularly from constituents about issues within his purview. So there's no clear cut analysis. Although it was a personal page, he was not limiting it to just sharing recipes for a squash casserole or, you know, pictures of his cat. So spend

Tim Kowal  3:40 
any time on the official page, if, if they had one, you

Jeff Lewis  3:44 
know, I bet that's a great question. If someone only has a personal page and there is no official page, I bet that would lend credence to the personal page being state action, as opposed to somebody who maintains at least the semblance of two separate accounts and trying to, trying to keep the two separate Yeah. Anyway, the court finally articulated a test that trial courts can use to determine when it's state action subject to First Amendment review and when this is just a private recipe page that has no First Amendment implications. The court said the social media activity constitutes state action only if the public official possessed actual authority to speak on the state's behalf, and purported exercise that authority when he or she spoke on social media. And relevant factors are, how is the social media account described? Is it, for example, described as a public figure? Is there, is there emblems of the office or of the government in the picture or described? And how is the account used? Is there a back and forth with constituents about topics that are within that officials purview? So the case is Lindy. Lindy the free March, 15, 2024, and we will post a link in the podcast notes,

Tim Kowal  4:55 
okay, yeah, interesting, interesting case. And as you mentioned, this is, this is something that. Has long vexed a lot of folks about whether, whether these public officials can can block people on their social media. So now at least, we have some guidance from the high court about if you want to be able to block your detractors or trolls on your page, make sure that you maintain the personal nature, the individual nature of your page. And don't do anything, don't do any official business or speak out of school in your in your personal page. Yeah, yeah. Okay, let's, let's move on to a recent case from the Supreme Court of California on the important topic of jury waivers. The case is tri Coast builders versus finegra. It's it was from February of 2024 the lesson is that once jury trial is waived, then don't expect the trial court to to set aside the waiver, because that's going to be subject to just abuse of discretion standard of review. So, so what happened in the tri Coast builders versus fenegra case is that the general contractor tricost sued a homeowner defendant over a building contract. The homeowner demanded a jury trial, but tricost never did. Just figured, well, okay, there's going to be a jury trial, so we're not going to separately demand the jury trial. We'll just proceed as though there's going to be a jury trial, but on the first day of trial, the homeowner showed up and said, You know, I decided jury trial's not all it's cracked up to be. I'm going to wave jury and Trico said, jumped up and down. Said, Wait, wait, wait, we've prepared for a jury trial. We're expecting a jury trial, and so it would be unfair to us. This is a huge surprise. We want a jury trial. And the court said, but you never posted jury fees, you never demanded a jury trial. And Trico said, well, there would be no prejudice to the other side, so the court must set aside our waiver, because there is a constitutional right. So that was the issue that went up to the Supreme Court, is whether in a case where there is no issue of waiver, there's no argument that either side would be there's no issue of harm. There was no argument that either side would be harmed by setting aside the waiver, then doesn't the usual rule that you have a constitutional right to a jury trial control, and the Second District Court of Appeal split on it, with the majority saying, No, it's just subject to abuse of discretion. And there was no abuse here in refusing to set aside the jury waiver, and with justice Ashman Gerst dissenting and saying that no, there's there's no harm to going forward with the jury trial, and that's important. And how would we ever review the error? Because how do you know? How are you supposed to say that a party is harmed other than the fact that they're deprived of their constitutional right of a jury trial, but the Supreme Court affirmed. So once a jury trial, a jury waiver is made, and it was made here, then getting it set aside is just subject to abuse of discretion. Standard of review here, the question was, was a bit of a close call, and the trial court didn't actually exercise any discretion. It just said, well, it was, it's untimely, so you waived your jury and didn't even consider, didn't even exercise discretion about about whether to set it aside. So the so the court didn't exercise discretion in the first instance. Just sent it back to the to the trial court. So here are some some takeaways here, the right to jury trial is a constitutional right, and denying constitutional rights is a big deal. But even constitutional rights may be validly waived, and if they're validly waived, the the setting aside the waiver is not the same thing as denying the right to the to the constitutional right. And this is not the case, not a case dealing with the denial of a constitutional right, because Tricos waived that right. And so the the other interesting issue here is that it if the if the trial court does abuses discretion and refusing to set aside the waiver the the Supreme Court also said that you have to show reverse, you have to show a prejudicial error, and which raises the question, how the heck do you show a waiver? How heck do you show a prejudicial error? You'd have to show that I would have gotten a different result with the jury than I got from this judge. And as a matter of law, I don't think you can make that argument, because the law says that there is an assumption that the case is glogal versus Hagan. It says that you can basically never establish, well, this is Attorney Michael Shipley's gloss on it, that you can basically never establish ex post, that a case would have had a different result, but for it, it had been tried to a jury instead of a judge, and that's because in the in the global versus Hagan case, the quote is it is presumed that they enjoyed, the litigants enjoyed the benefits of a fair and impartial trial, as contemplated by the Constitution and the statutes, whether it's a jury trial or a bench trial, so they have equal dignity. So you can't say that one is worse than the other. So that's, I thought that was a real chin scratcher part of the opinion about this the prejudicial error element.

Jeff Lewis  10:10 
Yeah, I don't know. Maybe I misread this decision or read it too quickly, Tim, but to me, it's all I'll do about nothing. This was a case I haven't read the appellate record, but this is a case where no prejudice was shown at the trial court level. Had the waiver been relieved. In my practice, I can't imagine any appellate record where no argument of prejudice could be made, or where a party opposing this kind of issue doesn't raise the issue of prejudice. So is this rule that's articulated here going to come up all that often, given that parties can pretty easily show prejudice below, not at the court of appeal, but below in terms of whether or not the jury waiver should be given force and effect. I don't know Well,

Tim Kowal  10:50 
I think that the harm that, that, that I would think to show is that I've been harmed by because I don't have my right to a jury trial. But that's, what the what the supreme court disagreed with here is that that once it's waived, then the harm has to be something else other than the right that you've already set aside.

Jeff Lewis  11:10  
I guess my point is, it's so easy to show that something else that really don't don't lose any sleep over this too. It's okay.

Tim Kowal  11:17  
What can you think of some examples of the types of harms you would show that that would occur in a bench trial, that would not occur in a in a jury trial,

Jeff Lewis  11:27 
sure witness scheduling. You know, a bench trial is super accelerated. A jury trial is long and drawn out. You schedule witnesses one way or another based on their availability. So that's one way you could show prejudice. Another is in terms of money spent to prepare blow ups and that kind of thing. You're not going to do a lot of razzle dazzle with a judge who's seen it all, but you might do lots of shiny, expensive blow ups for a jury, and either the money you've spent one way or the other on those presentations, or the failure to do it and inability to secure them in advance of trial. That's another basis of prejudice. But

Tim Kowal  12:02  
wouldn't that? Wouldn't that tip the other way you would. It's more expensive to try a case to a jury than to a judge. Yeah, but

Jeff Lewis  12:08 
if you're let's say you're a proponent of the party that wants to retain the right to a jury, and you've prepared all these special, beautiful presentations to razzle dazzle a jury that wouldn't persuade Moodle for a judge either way, but there's

Tim Kowal  12:23 
some cost at that point. Yeah, I suppose. Yeah, yeah. Well, it's a the takeaway is simple, don't waive your right to a jury trial. Just post the jury fees. Demand the demand the jury trial early in the case. It's the same the same rule is as subpoenaing witnesses, if you see the other side is subpoenaed, one of the third party witnesses that you want, you still have to issue your own subpoena because you can't count on them actually not excusing that witness and your key witness not appearing at trial because you didn't subpoena them. Yeah.

Jeff Lewis  12:51  
Well, yeah. And Hey, Tim, for the for the benefit of our superfan, Fran Campbell, would you mind going into the discussion about the waiver issue versus forfeiture issue and what happened here? Because I thought your discussion on that is super interesting.

Tim Kowal  13:04  
Oh, well, yeah, I think the the court, the court did have a have a side about this question about the difference between waiver and forfeiture. And as you point out, their legal writing, experts, who sometimes note like, like our friend Frank Campbell, will note that waiver is an intentional relinquishment of a right, and that's different from forfeiture, which is something that has been overlooked or forgot about a whoopsie. And in fact, Myron Moskovitz recently wrote in the daily journal that quote, I've never seen a trial lawyer intentionally fail to present to the trial court an argument that might help the client in every case I've handled, the argument was simply overlooked, not intentionally waived. So the preferred word for that is forfeiture. And I think that there's a lot of merit to Franz point and to myron's point, but the Supreme Court here kind of confirms my fear when it says that when it comes to seeking to set aside jury waivers both and here's a quote from the Supreme Court, both intentional and unintentional relinquishments of the jury trial right are deemed waivers. Accordingly, courts have sometimes used the term inadvertent waiver in this context to refer to a mistaken failure to comply with statutory requirements for demanding a jury resulting in an unintentional relinquishment of the right to jury trial. End. Quote, so here you have it, waiver and forfeiture are synonymous.

Jeff Lewis  14:30 
Well, or we've got three buckets. It used to be just waiver or forfeiture. Now there's forfeiture waiver and inadvertent waiver.

Tim Kowal  14:38 
Yeah, but I'm already doing waiver slash forfeiture. I'm not going to add a third to that, that Frankenstein third term, all right. So that was the Tricos builders versus finegra case. The next case is, is about even when fact finding is purely document based. The appellate court here still defer to the trial judge. We talk about this sometimes, Jeff that that. But when do you really need a court reporter? If you just have a law in motion hearing, it's just a judgment hearing, or it's just always, always petition to compel arbitration. There's no one being sworn in. There no there's no testimony. Do I really have to court? Have a court reporter and the court explains how to think about this in Jones versus solgan construction, this was certified for publication last month, February, 2024 The case involves a solar company's attempt to compel an octogenarian woman's dispute arbitration, and each side had facts in its favor. And again, I relied on on Attorney Michael Shipley's nice summary of the main points of the case, we'll link to that in the show notes. But the point here for our discussion, Jeff is that the facts were in sharp dispute, and the trial court came down on the side of the homeowner and found there was no valid agreement to arbitrate. And on appeal, the solar company argued that when the trial court's findings are based solely on written evidence, just on the paper record, no no testimony, nothing you need to there's no reason to defer to the trial judge, because the trial judge could see the beads of sweat forming on the witness's brow or hearing the inflections of people's voices. The judge was just sitting in chambers alone, reading papers. And the Court of Appeal, you can do that just as well as a trial judge. So review should be de novo, and there's actually some authority that the solar company came up for this a couple of cases in the court refers to it as the Pat Patterson malazo rule, two cases Patterson and malazo, but the court rejects those cases as inapt, standing instead for the more rudimentary rule that interpretation of a contract where there's no need to resort to extrinsic evidence is just a question of law. It doesn't stand for the novel interpretation of appellate review that the solar company advocated here, that we should that the Court of Appeal should apply de novo review to factual determinations when those, when those the factual record is just on the on on four corners of file documents. And the court rejected this, said that the had a discussion why the Patterson malazo rule does not support this interpretation of appellate procedure. And the court went on to say that given the Contra there's contrary Supreme Court authority and and so, because there's actual Supreme Court authority, contrary, I don't even think you can. You can make this argument under the auto equity rule that says that if there's, if there's a case that stands for a different position from another District Court of Appeal, you can, you can the trial court has is at liberty to rely on either I think there's the court points to the Supreme Court precedent that says otherwise. So, so solar companies argument was just not on the table. And so, so there you have it, Jeff, it comes down to substantial evidence. Even if there was no witness testimony, it's just ruling on, on, on dead tree declarations and exhibits filed in the Court reviewed in solitary, in solitude by the trial judge.

Jeff Lewis  18:07 
Yeah. You know, on one hand, I don't understand this policy or this this rule, because at the end of the day, having a reporter's transcript, at least on this record, wouldn't have changed anything. At least, there's no suggestion it would have changed anything. On the other hand, I could imagine as a case management proposition. The Court of Appeal doesn't want to be faced with battling on a case by case basis, whether or not the existence of a record would have changed the outcome Had there been something reported. But by the way, court we can't tell you what wasn't reported because it wasn't reported. Yeah, I so I guess I understand the practical, real world reasons why this will exist. But yeah,

Tim Kowal  18:43 
you know, and there, and there is something to be said for the rule, even if it's not actually supported by the authorities that the solar company cited. I was informed by, by by one of, one of the friends of the of the podcast, Igor lukashan on LinkedIn that then his State of Washington, they do have that rule that when the evidence is just taken from the papers filed and not from any testimony, then that can be reviewed de novo by the Court of Appeal. But the rule is different. Here's the and the money quote from the Supreme Court on that point, even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. That's so far, you know, so vanilla. But the court goes on, this is true whether the trial court's ruling is based on oral testimony or declarations. So it's not about the trial judge's better position being, you know, sitting right next to the witness while they are peppered with these difficult questions and picking up on different tones of voice and different speech patterns and things like that. It's just because the Court of Appeal is it's not in the court of appeals job to. Description to way facts. That's, it's just a job description point. It's not a point about the trial court being better at it. It's just not in the court of appeals job description. All right. Tim, I yield, okay, alright. So, so the so the homeowner, octogenarian, winds up keeping her claims out of arbitration in that case, that's, that's the upshot. So don't, don't try the argument that even if the if the facts are just on declarations, it's still substantial evidence review, unfortunately, your chances are still grim. Alright, so now let's go this, this, this interesting slap case out of the Church of Scientology. Jeff,

Jeff Lewis  20:39  
yeah, you know, every once in a while, like to discuss California's anti slap law, and I think we discussed this case once before. This is a lawsuit by Leah ramini, you know, famous actress, against the Church of Scientology regarding years of harassment against her, and the complaint is far reaching. If she were to win this case, although it's not styled as a class action, it sure would benefit a number of people who have left the Church of Scientology. So this case has big implications beyond just the church. In this particular plankton, last week, the LA Superior Court issued a trial level decision on an anti slap motion brought by the church, and I thought it was noteworthy for a few reasons, and I'm guessing either or both of these parties will appeal this, this decision. So let's, let's talk about it a little bit. By the way, it's

Tim Kowal  21:27  
a 30 It's a monster decision, Jeff, and you're right. I think the judge anticipates an appeal coming, because 37 pages, single spaced, yeah,

Jeff Lewis  21:36  
if we can link to it in the show notes, it'd be great. Because this decision, although it's not binding, it's not published. It's not citable. It's a great analysis for those who might be shaky on the application of brawl and the mixed cause of action, where you have protected activity and unprotected activity all put in a jumble and a complaint. How do you go about analyzing those complex kind of complaints in an anti slap motion. So that's one issue. One of the issues that caught my eye, and I hope somebody appeals and brings up this issue and it gets resolved by the California Supreme Court, is there's a terrible case out there by the California Supreme Court called Sweetwater. It's from 2019 and that Sweetwater case is often cited by my opponents in opposing anti slap motions, and the Sweetwater case basically says, if you read it at a top level, you can submit hearsay in opposition to an anti slap motion. You don't necessarily have to have admissible evidence not subject to the hearsay. And so it allows plaintiffs to kind of fudge when they submit evidence in opposition to an anti slap motion. Judge hammock in his trial court ruling discussed a contrary case by the Court of Appeal that came out three years later after Sweetwater called Sanchez, and that's 80 Calab 750 that said, Yeah, sweet water doesn't go that far. Sweet Water doesn't stand for the proposition that all hearsay can come in and opposing an anti slap motion. The facts of seaweed water were the the hearsay at issue was actually testimony that was given under oath in a former proceeding, and it should be limited to those grounds, meaning, if you've got under oath testimony that's being recited to in a declaration, maybe that comes in under sweet water, but nothing more. And I'm really hopeful that if this case gets appealed, that the California Supreme Court weighs in on this conflict between the broad approach of Sweetwater and the narrow approach of Sanchez regarding hearsay evidence. Now, what?

Tim Kowal  23:41 
Why is Sweetwater such a wrong rule, isn't it? Reminds me of the rule that that in preliminary injunction motions, hearsay is allowed because you're early on in the case or hasn't been the right to discovery yet, to take the evidence that you have and make it, you know, bulletproof, it so that it's a it's of the nature that can be admissible at trial. And isn't that the same thing for an anti slap? You haven't had the opportunity to to take the information you have and turn it into admissible evidence. But that doesn't mean that it shouldn't be used to show that you at least have minimal merit to support the claims.

Jeff Lewis  24:17 
Well, you know, our legislatures carved out a certain subset of cases that if it, if you satisfy prong one, if you can show that the activities alleged in the complaint arise from protected activity within the ambit of the First Amendment. As to those cases, plaintiffs have to show their cards very early and without discovery, unless they can show to good cause. And so this policy judgment by the legislature that this subset of cases that are protected by the First Amendment should make it harder for plaintiffs to proceed and easier for defendants to get a dismissal that public policy concern isn't present on a motion for preliminary injunction. Yeah, that's. True. Thank you for coming my TED talk

Tim Kowal  25:04  
the but of course, evidentiary rulings are are always subject to abuse of discretion anyway. So in a sense, even if there was a rule, how much different? What difference would it really make if the judge would say, well, just in my discretion, this hearsay evidence seems weighty enough, reliable enough, so it's going

Jeff Lewis  25:25  
to come in. Well, no, I see what you're saying. I think if Sanchez carried the day, courts would more frequently or feel more comfortable excluding evidence without having sweet water thrown in their face, saying, Yeah, we could put everything in the kitchen sink in and we don't have to have the declarant in front of the judge.

Tim Kowal  25:43 
Yeah, okay. I was, I was curious if there was no prevailing party determination in this case. Doesn't even, even though the the anti slack win was only partial, aren't, aren't partial wins still subject to to to the right of attorney's fees.

Jeff Lewis  25:58 
Yeah. You know, in reading between the lines the judge at the very end basically said, Yeah, I've run out of steam. I'm not going to determine probability of prevailing at this point. It is possible one side or the other might have prevailed here, or it's possible one side of the other did not. I'm not going to make that determination as to whether or not the Scientology motion was deemed sufficiently a sufficient victory to warrant and position of these.

Tim Kowal  26:22 
Okay, okay. Last case that I have, Jeff is the the candy bimbo doll case. This was a, we had a special request from from Fran Campbell to cover this case. This is just one of those name change cases. But the trial judge here denied the name change petition. This is a person who requested a name change to candy bimbo doll. The trial judge denied it, saying that we don't have to grant every name change request if the name change is something offensive, and the judge found that it was offensive, Court of Appeal rejected that in reverse, finding that, as a matter of law, bimbo is not an offensive term. The opinion didn't mention this, but Professor Sean Martin links a source, indicating that the appellant here is a transsexual adult film performer who, and possibly as a symptom of self acknowledged body dysmorphia, seeks to bring bus size to roughly an order of magnitude of brain size. That's no joke. That's That's this person's objective in making various body augmentations. And so, so the So, the term, or the name bimbo is, is, sadly, in earnest, the court's opinion, though, puts a different spin on appellant's objective here, and it says, making the the bimbo name change is a strike for a fringe Tiktok movement known as bimbo feminism, to reclaim the derogatory term bimbo for something positive, and the Court of Appeal admonishes the trial court for disregarding all of that. This, this bimbo feminism movement, so called movement or fringe movement, I guess in the trial court's defense, it had compared the appellant's effort to a man who once sought to change his name to mystery N, word, I'm not going to repeat the word in furtherance of social justice, and it was no dice for that extremely offensive term. And so the trial court ruled that it was also no dice for the rather less offensive term, bimbo. But again, the trial court, the court of appeal, disagreed, because bimbo is just not on the order of the N word. It's not vulgar. It's not even necessarily offensive. So the public policy in favor of granting a name change controls, and I just thought it was the one comment I had on this is that I couldn't, I didn't agree with the the court of appeals decision to lend credibility to this, this Tiktok trend, supposed trend, to reclaim the term bimbo for some positive purpose, and then to attribute that rather ironic motive to this troubled appellant's sadly earnest name change request. And I thought Professor Martin had it right when he said that there was no reason for the law to take a definitive side in that debate, and especially not in a published opinion. Yeah.

Jeff Lewis  29:28 
Interesting. Okay, thanks. Brian Campbell, I have two tidbits I wanted to share today. One is in a prior podcast we discussed the case of Jackson V Lara, which involved the application or the extension of the interim adverse judgment rule in a malicious prosecution case from a civil case to a criminal case. It was previously unpublished. Yours Truly wrote a letter to the Court of Appeal suggesting it be published, and it was granted so that case has become published. The Jackson V Lara case that was one. Tidbit, and the second tidbit is one of my favorite appellate justices. Justice beds worth down in the fourth Appellate District, Division Three, has announced, yet again, he's going to retire this year. So I guess the talk the clock is ticking for him to come on the podcast. If anybody knows justice, bedsworth, or if you listen to this podcast, bedsworth, come to our podcast, please.

Tim Kowal  30:21 
Yeah, maybe, maybe we can get him after, after he retires, maybe he'll be in less demand. Yeah, all right, I had a few, Jeff, just a few odds and ends here in the in race. Sumanu case, Justice Streeter wrote a unanimous published opinion, and then justice Goldman wrote a separate concurrence, and everyone joined everyone's opinions. And question is, why? Why don't they just make the the unanimous concurring opinion part of the unanimous main opinion? And the only reason I can think of is the the opinion was published, the main opinion is published, and maybe they agreed that the concurrence didn't belong in a presidential published opinion. But it's just an oddity. Federal stats are out, and Ben Shatz provides some takeaways from the US court's annual report. For 2023 filings in the courts of appeals dropped 4% to just under 40,000 in 2023 filings by pro se litigants, which account for 46% of new cases, decreased by 4% and civil appeals fell 2% to just Over 21,000 or just under 22,000 and Criminal Appeals declined 3% and there is a interesting assembly bill pending. Assembly member, Garcia, has proposed a bill to allow for the disqualification of appellate justices. The bill is AB 2125 as we know, Jeff, existing law provides that that the provisions under under 170 I think this is to I assume this is under one 70.1 that the provisions do not apply to to a judge designated or assigned to serve on an appellate division of a superior court or in the capacity as a judge in That division, this bill would repeal that exclusion and would extend these provisions to authorize a party or attorney to disqualify a justice or justices of an appellate court for prejudice against a party or attorney or in the interest of a party or attorney, okay, thought that was interesting. Okay, and just couple more, some attorneys want the fourth seventh and federal circuits to join other fellow federal appeals courts in giving more than same day notice of their panel assignments. The fourth seventh and federal circuits reveal names of panel members only on the day of the argument and the policy, the policy stem from fears of tailored arguments. I guess the idea that if you let the let the attorneys and parties know ahead of time, then they'll try to tail tailor their arguments to particular judicial philosophies of the of the judges on the panel, and some lawyers say it creates undue stress and hurts the quality of the presentations. Okay? And then last, a tip from the from the Chief Justice of the California Supreme Court on oral argument. She says, My biggest rule is, please do not split time. Oh, this is the former Chief Justice, cantil sakui. She explained that the justices don't ask questions in a lineal fashion, and you can't be certain when particular questions will come. The court's not going to categorize its questions according to how you would like to present the argument, and it's a very confusing and a waste of time when one attorney is in court to talk only about one particular issue, but all the other justices want to hear about a different issue. And I've never seen it be successful. She concluded about the tactic of dividing time. So if you have multiple attorneys on your team and you want to split up the oral argument and each present a different part of the case or different issue, don't

Jeff Lewis  34:09  
or, I guess, the same rule would apply if you have multiple parties or an amicus that's allowed a seat at the table for oral argument, there has to be some serious strategizing amongst those council about whether even to split up time there, yeah.

Tim Kowal  34:22 
And in fact, the Chief Justice did go on to, I think late, maybe later. It was a, it was an email follow up to this discussion, and you mentioned Jeff about Amicus, she did make an exception for Amicus. Those are those present different, different issues sometimes. So that would be the exception to her otherwise pretty categorical rule that they don't like splitting up of issues during oral argument. Okay, Jeff, that's going to wrap us up once again. We want to thank case text for sponsoring the podcast. So each week when we talk about these cases, we include links to them, and we use that use the case text daily updated database of case law statutes. Regulations, codes and more when we drop those links in the show notes, listeners of the podcast enjoy a special discount on casetext basic research@casetext.com slash Calp. That's casetext.com/calp. yeah. If

Jeff Lewis  35:13 
you have suggestions for future episodes, or you want to tell me why Sweetwater is correct, please email us at info, at Cal podcast.com and our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. See you next time

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