Justice William Bedsworth’s recent column, “Oral Argument: Better Than Oral Surgery,” packs a lot of meanings into the title’s last four words. (See The Recorder, 12/19/2022.) I suppose it might depend on viewpoint, you know, surgeon or patient, the condition in question, the complexity of the problem, and how direct the approach. I’m not speaking of dentistry here.

Getting counsel to answer questions can be like pulling teeth. I was reminded of that yesterday while looking for an oral argument. I landed on the prior case somewhere in the middle of the video. It took three tries to get counsel to directly answer the question. A few years ago, while waiting for my case to be called at the California Supreme Court, an attorney responded with “I’ll come to that one later, Your Honor, I’ve got to tell you this first,” causing an array of facial expressions along the dais. And onward, he sailed.

When it comes to appealing in California’s state courts, the One Final Judgment Rule governs. Challenges to interim orders must await the final judgment. (Griset v. Fair Political Practices Comm’n (2001) 25 Cal.4th 688, 697 (appeal is taken from a final judgment disposing of all controverted matters); Knodel v. Knodel (1975) 14 Cal.3d 752, 760 (“The reason for the one judgment rule is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and … a review of intermediate rulings should await the final disposition of the case”) (internal quotations and citations omitted).) But if there’s one thing taught from the very beginning of law school, it’s that every rule has an exception.

Protecting the record for appeal is always a popular topic for legal education programs. After all, securing the hard-fought trial victory or turning around the case that went off the rails can depend on making sure a proper record is made for appellate review. But the most perfectly protected record is meaningless if the notice of appeal is untimely. Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 (absent timely filed notice of appeal, appellate courts lack jurisdiction). This is a tragedy that should never happen, but it does.

For state court appeals, the place to begin is California Rules of Court, rule 8.104. The “normal time” to appeal is 60 days. Two months to file the notice seems generous. But 60 days from when? And is it always 60 days? A careless examination of rule 8.104 can lead to problems. Fatal problems.

In Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, the California Supreme Court examined evidence burdens in the context of the anti-SLAPP statute. Despite resolving anti-SLAPP issues, the opinion has serious implications for summary judgment motions that may not be obvious.

In resolving anti-SLAPP issues, Sweetwater analogized to summary judgment motions. In the anti-SLAPP context, once protected activity has been demonstrated, courts are to accept the opposing party’s evidence as true, and see whether the moving party has nonetheless defeated the opposing party’s showing “as a matter of law.” It doesn’t just sound like summary judgment, the Sweetwater Court expressly described the minimal merit prong of an anti-SLAPP motion as a “summary-judgment-like procedure.”

Every now and then an appeal gets taken that, frankly speaking, shouldn’t be filed. When on the receiving end it’s possible—depending on the extreme lack of merit in the opening brief—to contemplate saving the client the time, effort, and $$$$ involved in preparing a responsive brief. The thinking would be something along the lines of “this stinker has absolutely zero chance of success” (and other more colorful thoughts).  But should the respondent forgo filing a brief and just wait for the Court of Appeal to proclaim the inevitable?

Such a drastic course of action should be avoided.