New Case Law: Order Granting New Trial Upheld Where Plaintiff’s Counsel Improperly Violates Pre-Trial Orders by Arguing “Reptile Theory," etc.

 

In an opinion written by Justice Codrington, the Fourth Appellate District, Division Two, affirmed the grant of a motion for new trial by San Bernardino County Superior Court Judge Michael A. Sachs. (Allen v. Patel (December 23, 2025) E082051.)  The appellate opinion explained the issue involved whether the trial court properly granted a motion for new trial based upon the alleged misconduct of plaintiff and appellant’s counsel Michael K. Blue:

While plaintiff and appellant Brenda Lee Allen and her family were moving out of Ontario Airport Inn Hotel after an extended stay, she and the hotel owner, defendant and respondent Anil Bhula Patel, and the hotel manager, Luis Mejia, engaged in an altercation. Allen alleges that during the incident, Patel attacked and injured her. Allen brought a personal injury lawsuit against Patel and his company, DH Hotel Investments, Inc. (DH) (collectively referred to as defendant).  A jury awarded Allen over one million dollars in compensatory damages, and the court declared a mistrial at the bifurcated trial on her punitive damages claim, and thereafter granted defendant’s motion for a new trial (MNT). Allen appeals. Allen contends the trial court abused its discretion by granting the MNT based on attorney misconduct. . . .  We affirm the trial court’s order granting a new trial of phase one of the trial as to liability and compensatory damages. . . .  The appellate court also found the trial court had properly granted a new trial based upon misconduct by Mr. Blue in making an argument to the jury which improperly speculated as to discussions between defendant and defense counsel, speculating that defense counsel told his client he would essentially get away with his bad conduct. (Id., p. 2.

The alleged misconduct involved claims of injury not previously disclosed:

During attorney Michael K. Blue’s opening statement on behalf of Allen, he told the jury that it would hear from Allen’s doctors and that there would be testimony that, after her altercation with Patel at the Hotel, she suffered from incontinence and PTSD, which she will suffer from for the rest of her life. Blue described in detail Allen’s incontinence. Blue requested the jury to award Allen $6,000,000 in compensatory damages. After Blue completed his opening statement, defendant moved for a mistrial on the grounds that Blue raised new and argumentative issues that were never disclosed before. Defendant argued that Blue improperly stated during his opening statement that Allen was immunocompromised and suffered from a bone disease. Defendant asserted that this was improper because Allen’s attorneys would not be providing any medical testimony by any designated medical physician, establishing these diagnoses or prognoses. The trial court responded that Allen’s treating physician could testify regarding his own diagnoses but could not testify regarding other diagnoses or causation unless designated as an expert witness. Will we tolerate that? That decision is going to be your decision in just a few moments. (Id., pp. 6-7.)

Patel moved for a new trial under Code of Civil Procedure section 657,2 based on 1) irregularity in proceedings which prevented a fair trial, 2) accident or surprise, 3) excessive damages, and/or 4) insufficiency of evidence or the verdict is against the law.  The Lee opinion summarized the trial court’s grant of a motion for new trial as follows:

After hearing oral argument on July 19, 2023, on Patel’s MNT, the trial court ordered a new trial. During the hearing, the trial court stated in detail its reasons. The court found that Allen’s evidence was tainted by Blue’s misconduct. The court explained that it had granted several motions in limine (MIL) orders, which Blue violated. The trial court expressed concerns about Allen introducing evidence of bowel and G.I. issues, which Allen claimed were caused by the Hotel incident. The trial court asked Blue if there would be evidence offered by an expert showing causation linking Allen’s GI claims with the Hotel incident, and Blue told the court, yes, which was false. (Id., p. 8.)

The trial court also found that plaintiff’s counsel had violated an in limine order made at the outset of trial which prohibited both “golden rule” and “reptile theory” arguments. The trial court also found, inter alia, that during the first phase of the bifurcated trial, plaintiff’s counsel had improperly asked the jury to award punitive damages.

The Court of Appeal affirmed, finding that plaintiff had not met her burden of showing any error by the trial court in granting a motion for new trial:

We conclude there was substantial evidence in the record supporting the trial court’s findings that Blue made knowingly false and misleading statements and elicited inadmissible, prejudicial, and highly inflammatory testimony in violation of the court’s orders and warnings not to introduce evidence of Allen’s incontinence unless Blue was able to introduce expert witness testimony establishing a medical diagnosis of her condition and that it was caused by the Hotel incident. (Id., p. 25.)

As to golden rule arguments, the Fourth District found Mr. Blue had violated the trial court’s in limine order “by suggesting that when considering the amount of fair value compensation Allen should receive for her losses, the jurors should imagine what it would be like to be forced to accept the loss of ’every single thing that matters' to them" in exchange for a monetary award. (Id., p. 29.)

As to so-called “reptile theory,” the appellate court concluded that “violation of the [prohibiton against] reptile theory occurs when counsel asks jurors to base their decisions on concerns about their own safety and the safety of the community rather than the applicable standard of care,” citing to Regalado v. Callaghan (2016) 3 Cal. App. 5th 582, at 599.).  Mr. Blue patently violated the order precluding such by virtue of the following argument to the jury, as summarized by the Allen court:

Blue began his opening statement by stating, “I’m scared. I couldn’t sleep last night because I’m scared. It’s an enormous obligation to represent somebody who cannot represent themselves. . . . I’m shaking. My knees are shaking. . . . It’s a privilege of a lifetime. . . when you believe in somebody. My fear is that I have not done a good enough job to represent that person the way that person deserved to be represented that I have failed. And at some point I’m going to hand this case . . . to you for you to take this case for me. And that scares me to death.”
Blue then told the jury it had “an opportunity to make a difference. We go through life, try to set an example, try and do the right thing. Maybe somebody will see. Maybe our children will see. Maybe our students will see. But seldom do we have an opportunity to defend our community, to champion our community, to stand as the last bastion for what we will tolerate for our community. Will we tolerate men coming into a room with a vulnerable woman, the most vulnerable of us and put their hands on her? Will we tolerate that? That decision is going to be your decision in just a few moments. (Id., p. 30.)

The appellate court also found the trial court had properly granted a new trial based upon misconduct by Mr. Blue in making an argument to the jury which improperly speculated as to discussions between defendant and defense counsel, Mr. Blue telling the jury that defense counsel may have told defendant they would essentially get away with his bad conduct. (Id., p. 33.)

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Case law Update -- Service of Statement of Damages Upon Pro Se Litigant Properly Made at PO Box Listed in Substitution of Attorney Form

 

 

In an opinion written by Justice Lui, the Court of Appeal of the Second District, Division Two, of California, has upheld a default judgment against a party in propria person. (Backlund v. Stone (October 27, 2025).) (https://courts.ca.gov/opinion/published/2025-10-27/b340369 .). The court summarized the extensive factual and procedural background  of the case very succinctly:

 

In 2010, Alyssa Backlund (Backlund) sued Christopher Stone (Stone) for defamation, intentional infliction of emotional distress (IIED), and related claims. Her complaint did not specify any amounts of damages. Stone hired counsel and defended the lawsuit for some time before his counsel filed a substitution of attorney form, showing that Stone was now self-represented, and listing a P.O. box as Stone’s address. Stone then failed to appear or to defend the action, leading to his answer being stricken. Backlund mailed a statement of damages to the address Stone provided on the substitution of attorney form and then got a default judgment against him for more than $1 million. Backlund renewed the judgment almost a decade later. Stone moved to vacate the renewal on the grounds that the default judgment was void for lack of due process, in that (1) Backlund’s action was not one for personal injury, and thus the damages had to be specified in the complaint; (2) even if a statement of damages was appropriate, Backlund did not use the form the Judicial Council adopted for that purpose; and (3) Backlund failed to properly serve Stone with the statement of damages. We reject Stone’s contentions and affirm. (Id., p. 2.)

 

The court thus expressly rejected the contention the judgment was invalid because the statement of damages was served by plaintiff upon the defendant at the PO Box given in the substitution of attorney form.  As the appellate opinion teaches, in filing this form the defendant "appeared" in the action (even assuming arguendo he had not appeared before this date).  It was therefore proper under Code of Civil Procedure section 1013 to serve the statement of damages by mail at this address:

For both a statement of damages and a statement to preserve punitive damages: (1) “If a party has not appeared in the action, the statement shall be served in the same manner as a summons,” or, (2) “If the party has appeared in the action, the statement shall be served upon [their] attorney, or upon the party if [they have] appeared without an attorney, either in the same manner as a summons . . . or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14.” [Citation.]

 

In this case, Stone had appeared in the action, first represented by counsel, and then self-represented. He thereby triggered the second branch, under which service may be made “upon the party if [they] have appeared without an attorney”. . . .

 

Backlund properly served her statement of damages by mailing it to the P.O. box Stone listed on his substitution of attorney form, which was the only address for Stone on file when Backlund served the statement. Stone argues that his former counsel’s office was his “address of record” when Backlund mailed the statement of damages because no notice of change of address had been filed, “regardless of whatever was written on the Substitution of Attorney form.” He thus argues that, assuming service by mail was permissible, Backlund was required to serve the statement on his former counsel, despite the notice he gave that counsel no longer represented him. This argument defies common sense. Stone’s substitution of counsel form served as a notice of change of address in this case, because it notified the court and the parties that Stone was no longer represented by his former counsel and provided Stone’s current address.

(Id., pp. 11-12; emphasis added.) 

 

Lessons for Practitioners

 

Perhaps the most important part of the decision is the discussion that gives the Court's blessing to reliance by opposing counsel upon a "new" address given by a substitution of attorney form.  As happened here, it is common for attorneys to withdraw from representation and provide little information about the client''s whereabouts, often, as is the case here, only providing a PO Box.  In these situations opposing counsel really has no choice but to rely upon the new address given on this form.  This is especially true where the substitution is signed by the party which is now self-represented, but this self-represented party is otherwise out of communication with opposing counsel.

 

 

 

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Case Law Update: 1.1 Million Default Upheld Without Statement of Damages Being Served

 

 

In Atlas v. Davidyan (August 29, 2025) case no. BC335661, the Second District Court of Appeal, Division Eight, upheld a default judgment of over $1,100,000.00.  The court upheld this judgment, and related orders of the Hon. Holly J. Fujie of the Los Angeles County Superior Court, from a challenge by the defendant, who was self-represented in the Superior Court.  Though an answer was filed and the case ostensibly litigated by the defense, a terminating sanction was granted in favor of plaintiff, thus striking the answer to the complaint, after the defendant failed to fully respond to discovery following many orders that he do so.

 

The defense argued what was called a "doomsday" sanction was an "abuse of discretion."   This is because even though the responses were admittedly deficient, that there was in fact some sort of response to the discovery provided.  Writing for the Court, Justice Rubin dispatched this argument by noting the trial court took an "incremental and non-punitive" approach to discovery sanctions:

 

The trial court imposed terminating sanctions only after hearing eight previous motions for discovery non-compliance, and only after taking a patient and cautious approach to the discovery dispute. After plaintiff’s first motion to compel, the court gave defendant more time to respond. When defendant still did not provide complete or adequate written discovery responses, the court imposed moderate monetary sanctions and set new response deadlines in four more discovery hearings between December 2021 and January 2023. When these orders to compel and monetary sanctions proved insufficient to induce compliance, the court imposed issue sanctions. When even this severe penalty did not result in discovery compliance, the court imposed terminating sanctions. The court took exactly the incremental and non-punitive approach contemplated by the discovery statutes. (Id., p. 13.)

 

Of note is the argument by the defense there was no proper "notice" of the damages to be awarded because no Statement of Damages was filed and served per the procedure in Code of Civil Procedure section 425.11.  However, the appellate court found the complaint itself gave sufficient notice: of the amount of damages the defendant might have to pay:

 

But his argument fails for the simple
reason that plaintiff’s complaint states that she is seeking general damages [for] mental injuries and economic loss”; she sought “general and special damages in an amount to be proven at trial, but no less than $1,000,000,” as well as attorney fees pursuant to Welfare and Institutions Code section 15657.5, subdivision (a). Thus, there was no need for a section 425.11 statement and defendant was properly “apprised of [his] exposure” before the default was taken. (Id., p. 14.)

 

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Text of the California Anti-Parody Statute Ripe for Appellate Review on Constitutional Grounds

 

California's AB 730 prohibits use of digital tools to make fun of candidates for public office

 

In our prior post we discussed challenges to a new California law making it a crime to parody political figures using digital tools such as Artificial Intelligence under the rubric the public, and, in particular, voters must be "protected" from such. 

 

The text of this new law, in all its breadth, is set forth below with key portions italicized, including provisions making it illegal to use digital tools to create a "false representation" of a candidate or, God forbid, harm their reputation:

 

 

The people of the State of California do enact as follows:

SECTION 1.

 Section 35 of the Code of Civil Procedure is amended to read:

35.

 (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, and actions under Section 20010 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.

(b) This section shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2023, deletes or extends that date.

SEC. 2.

 Section 35 is added to the Code of Civil Procedure, to read:

35.

 (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, and election contests shall be placed on the calendar in the order of their date of filing and shall be given precedence.

(b) This section shall become operative January 1, 2023.

SEC. 3.

 Section 20010 of the Elections Code is amended to read:

20010.

 (a) Except as provided in subdivision (b), a person, firm, association, corporation, campaign committee, or organization shall not, with actual malice, produce, distribute, publish, or broadcast campaign material that contains (1) a picture or photograph of a person or persons into which the image of a candidate for public office is superimposed or (2) a picture or photograph of a candidate for public office into which the image of another person or persons is superimposed. “Campaign material” includes, but is not limited to, any printed matter, advertisement in a newspaper or other periodical, television commercial, or computer image. For purposes of this section, “actual malice” means the knowledge that the image of a person has been superimposed on a picture or photograph to create a false representation, or a reckless disregard of whether or not the image of a person has been superimposed on a picture or photograph to create a false representation.

(b) A person, firm, association, corporation, campaign committee, or organization may produce, distribute, publish, or broadcast campaign material that contains a picture or photograph prohibited by subdivision (a) only if each picture or photograph in the campaign material includes the following statement in the same point size type as the largest point size type used elsewhere in the campaign material: “This picture is not an accurate representation of fact.” The statement shall be immediately adjacent to each picture or photograph prohibited by subdivision (a).

(c) (1) Any registered voter may seek a temporary restraining order and an injunction prohibiting the publication, distribution, or broadcasting of any campaign material in violation of this section. Upon filing a petition under this section, the plaintiff may obtain a temporary restraining order in accordance with Section 527 of the Code of Civil Procedure.

(2) A candidate for public office whose likeness appears in a picture or photograph prohibited by subdivision (a) may bring a civil action against any person, firm, association, corporation, campaign committee, or organization that produced, distributed, published, or broadcast the picture or photograph prohibited by subdivision (a). The court may award damages in an amount equal to the cost of producing, distributing, publishing, or broadcasting the campaign material that violated this section, in addition to reasonable attorney’s fees and costs.

(d) (1) This section does not apply to a holder of a license granted pursuant to the federal Communications Act of 1934 (47 U.S.C. Sec. 151 et seq.) in the performance of the functions for which the license is granted.

(2) This section does not apply to the publisher or an employee of a newspaper, magazine, or other periodical that is published on a regular basis for any material published in that newspaper, magazine, or other periodical. For purposes of this subdivision, a “newspaper, magazine, or other periodical that is published on a regular basis” does not include any newspaper, magazine, or other periodical that has as its primary purpose the publication of campaign advertising or communication, as defined by Section 304.

(e) This section shall become operative on January 1, 2023.

SEC. 4.

 Section 20010 is added to the Elections Code, to read:

20010.

 (a) Except as provided in subdivision (b), a person, committee, as defined in Section 82013 of the Government Code, or other entity shall not, within 60 days of an election at which a candidate for elective office will appear on the ballot, distribute, with actual malice, materially deceptive audio or visual media, as defined in subdivision (e), of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.

(b) (1) The prohibition in subdivision (a) does not apply if the audio or visual media includes a disclosure stating: “This _____ has been manipulated.”

(2) The blank in the disclosure required by paragraph (1) shall be filled with whichever of the following terms most accurately describes the media:

(A) Image.

(B) Video.

(C) Audio.

(3) (A) For visual media, the text of the disclosure shall appear in a size that is easily readable by the average viewer and no smaller than the largest font size of other text appearing in the visual media. If the visual media does not include any other text, the disclosure shall appear in a size that is easily readable by the average viewer. For visual media that is video, the disclosure shall appear for the duration of the video.

(B) If the media consists of audio only, the disclosure shall be read in a clearly spoken manner and in a pitch that can be easily heard by the average listener, at the beginning of the audio, at the end of the audio, and, if the audio is greater than two minutes in length, interspersed within the audio at intervals of not greater than two minutes each.

(c) (1) A candidate for elective office whose voice or likeness appears in a materially deceptive audio or visual media distributed in violation of this section may seek injunctive or other equitable relief prohibiting the distribution of audio or visual media in violation of this section. An action under this paragraph shall be entitled to precedence in accordance with Section 35 of the Code of Civil Procedure.

(2) A candidate for elective office whose voice or likeness appears in a materially deceptive audio or visual media distributed in violation of this section may bring an action for general or special damages against the person, committee, or other entity that distributed the materially deceptive audio or visual media. The court may also award a prevailing party reasonable attorney’s fees and costs. This subdivision shall not be construed to limit or preclude a plaintiff from securing or recovering any other available remedy.

(3) In any civil action alleging a violation of this section, the plaintiff shall bear the burden of establishing the violation through clear and convincing evidence.

(d) (1) This section shall not be construed to alter or negate any rights, obligations, or immunities of an interactive service provider under Section 230 of Title 47 of the United States Code.

(2) This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts materially deceptive audio or visual media prohibited by this section as part of a bona fide newscast, news interview, news documentary, or on-the-spot coverage of bona fide news events, if the broadcast clearly acknowledges through content or a disclosure, in a manner that can be easily heard or read by the average listener or viewer, that there are questions about the authenticity of the materially deceptive audio or visual media.

(3) This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, when it is paid to broadcast materially deceptive audio or visual media.

(4) This section does not apply to an internet website, or a regularly published newspaper, magazine, or other periodical of general circulation, including an internet or electronic publication, that routinely carries news and commentary of general interest, and that publishes materially deceptive audio or visual media prohibited by this section, if the publication clearly states that the materially deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.

(5) This section does not apply to materially deceptive audio or visual media that constitutes satire or parody.

(e) As used in this section, “materially deceptive audio or visual media” means an image or an audio or video recording of a candidate’s appearance, speech, or conduct that has been intentionally manipulated in a manner such that both of the following conditions are met:

(1) The image or audio or video recording would falsely appear to a reasonable person to be authentic.

(2) The image or audio or video recording would cause a reasonable person to have a fundamentally different understanding or impression of the expressive content of the image or audio or video recording than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video recording.

(f) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

(g) This section shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2023, deletes or extends that date.

 

(See https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB730.)

 

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Update: The War on Parody by Humorless Left-Wing Scolds Hits Roadblock

 

Federal Judge Finds that California law banning AI-generated fake videos unlawful but not unconstitutional, setting up issue for further judicial review.

Those who do not want their political views satirized — because these views are so silly they are ripe for humor — have attempted to ban such speech under the rubric that such is “misleading”, “dangerous,” etc.  Indeed, they have made quite the effort over the last few years to ban, prosecute, and silence parody.  The Christian satirical website Babylon Bee has taken the brunt of much of this effort, as those who attempt to censor in the name of “safety” have labeled the site “misinformation.” (See  https://www.newsweek.com/satire-misinformation-babylon-bee-says-mocking-woke-moral-purpose-1779062” where left-wing Newsweek — which no doubt covets it own First Amendment protection — took the stance that there is a real concern that such parody is “misinformation.”)  Indeed, the New York Times sold it soul to eschew freedom of speech and did its best to silence the Babylon Bee, as Newsweek pointed out:

In March, 2021, a New York Times reporter using information from Snopes [an online "fact checking" service which the New York Post termed "pants on fire partisans"] described the Babylon Bee as a "far-right misinformation site" that "trafficked in misinformation."

No wonder — BabylonBee videos include an appearance by Satan himself bemoaning the fact that Roe v. Wade was overturned and fewer babies may die. (See https://www.youtube.com/watch?v=0LI4UEHUvtM, and note that even today Google’s YouTube tries to counter this satire by a note attempting to characterize the end of a human life as “the loss of a pregnancy” as if the baby was simply "misplaced.") 

Of course, the Babylon Bee has fired back against left-wing cancel culture with headlines such as this “Trump Tweet Reading ‘Good Morning America’ Labeled as “Misinformation:’”

 

(See https://babylonbee.com/news/trump-tweet-reading-good-morning-america-labeled-as-misinformation.)

But this effort took an even darker turn with the prosecution and sentencing of Douglas MacKay by the Biden-era Department of Justice for jokingly asking Hillary Clinton’s voters to “vote by text,” implying they were so stupid they might do so.  I intend to repeat this tweet in the future, so if AOC wins the 2028 election and my posting stops, you will know that I, too have been arrested.  Of course, there is no humor associated with (hashtag) “I’m With Her” cabal so he was prosecuted for doing so.  The Department of Justice still lists this on its website as one of its accomplishments (https://www.justice.gov/usao-edny/pr/social-media-influencer-douglass-mackey-sentenced-after-conviction-election) and the website still lists someone as the “contact” for the prosecution, with no apparent embarrassment regarding the individuals listed:

Contact

John Marzulli


Danielle Blustein Hass


U.S. Attorney's Office

(718) 254-6323

(See https://www.justice.gov/usao-edny/pr/social-media-influencer-douglass-mackey-sentenced-after-conviction-election.)

This suit was, of course, brought in the Eastern District of New York, where fine American citizens found Mr. Mackay guilty of a crime for a very humorous tweet.

Which brings us to California’s recent law banning AI “fakes,” including — of course — political satire.  There are reports that this law  was specifically designed to ban videos such as one published on “X” where (an edited) Kamala Harris called herself the “ultimate diversity hire.”  This was offensive because, according to those who supported the law, she did not say this and she certainly was nothing like a diversity hire.

As reported by Politico (see https://www.politico.com/news/2025/08/05/elon-musk-x-court-win-california-deepfake-law-00494936), yesterday one Federal Judge, the Hon. John Mendez, ruled that the law did not pass muster because it is preempted by Federal Law protecting platforms from claims for user-generated content.  As Politico explained, the Federal Court did not need to, and therefore did not, rule on the obvious First Amendment issues.

This is important because the broad use of the term “deep fake” may be used to attempt to ban speech under the guise that we are “protecting” the public.  Given that even content generated by analog means, such as a photograph, will likely be edited by software which includes some sort of AI tools (even if these tools merely add a border to a photo), a ban on “AI-generated” content at election time, which is what Governor Newsom and his legislative cohorts attempted, potentially bans all political satire created by digital tools.

Given that this law is still enforceable in other contexts, the issue of using digital tools for political satire and attempts to ban such requires further judicial review.  At some point, then, the Supreme Court will need to reiterate that satire and humor and pointed and sharp speech about elections and political issues are at the heart of what the First Amendment protects.  

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Analysis: The Alien Enemies Act permits deportations due to foreign "incursions" and provides jurisdiction while these enemies are within the United States

 

Analysis after the Supreme Court overrules Judge Boasberg and sides with Attorney General Bondi

The United States Supreme Court has vacated an unconstitutional order from trial court judge James Boasberg barring the President of the United States and the Executive Branch from using the Alien Enemies Act (1798) to deport violent aliens, specifically, criminal gang members from Venezuela.  The latest example of gaslighting by our press, reports almost universally described this act as being a "war time" act which, as we shall see, does not comport with the actual language of the Act. The inference is that you are wrong if you support utilization of this Act because we are not currently at "war:" the gaslighting "tell" if that these supposed news stories do not quote any of the language of the Act and most likely no reporter or editor involved in the reporting has even skimmed the Act itself.

 

Briefly, the Supreme Court held it was not proper to Judge-shop and file a challenge to the use of the Alien Enemies Act in the District Court of the District of Columbia. As our prior posts discussed, a sole trial court judge in Federal Court issued a ruling attempting to direct how the executive branch conducted its core business, going so far as to order the direction of planes operated by the Executive Branch.  This was Judge Boasberg, who formerly served on the FISA Court which approved the FBI's secret spying upon this same President of the United States based upon affidavits filed under the supervision of now disgraced former FBI Director James Comey.  (Indeed, even Comey himself has admitted this entire process involved major errors.) These FISA warrants were, in turn, based on a Russia collusion hoax created by, inter alia, the law firm Perkins Coie.  Perkins Coie worked on behalf of Hillary Clinton's Presidential Campaign and paid the research firm Fusion GPS for the infamous "Steele Dossier" manufactured to show that the President was actually an agent of the Russian government.  This hoax and the subsequent Special Counsel investigation of the President were a key part of the "lawfare" campaign designed to stop the American public from electing and re-electing the President.  There is little doubt the case was filed in the DC court so it would be heard by judges of the same predispositions as Judge Boasberg.

 

The Supreme Court, as noted, put an end to this attempt at judge-shopping by ruling the case should instead have been filed in the District where the inmates were held such as, for example, in Texas. The headlines stress the Act as a "wartime" act and ignore the fact the Act applies to both declared wars and where these has been a foreign "incursion."  The text below is from the code found House.gov and key portions are highlighted for emphasis:

 

CHAPTER 3—ALIEN ENEMIES

§21. Restraint, regulation, and removal

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

As to jurisdiction, the Act provides that aliens residing in the United States are entitled to a hearing before deportation and the judiciary may order (or not order) their removal "from the United States," thus limiting this jurisdiction to those aliens within the United States:

§23. Jurisdiction of United States courts and judges

After any such proclamation has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.

 

The Act also provides such aliens may in fact have time to settle their affairs before deportation, but only if they have not been involved in an actual "hostility" or "crime:"

 

§22. Time allowed to settle affairs and depart

When an alien who becomes liable as an enemy, in the manner prescribed in section 21 of this title, is not chargeable with actual hostility, or other crime against the public safety, he shall be allowed, for the recovery, disposal, and removal of his goods and effects, and for his departure, the full time which is or shall be stipulated by any treaty then in force between the United States and the hostile nation or government of which he is a native citizen, denizen, or subject; and where no such treaty exists, or is in force, the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality.

The Act further provides a United States Marshall may apprehend the aliens:

§24. Duties of marshals

When an alien enemy is required by the President, or by order of any court, judge, or justice, to depart and to be removed, it shall be the duty of the marshal of the district in which he shall be apprehended to provide therefor and to execute such order in person, or by his deputy or other discreet person to be employed by him, by causing a removal of such alien out of the territory of the United States; and for such removal the marshal shall have the warrant of the President, or of the court, judge, or justice ordering the same, as the case may be.

So now that we have quoted each and every word of the Act, you know far more than any of the journalists of commentators in corporate media and may judge for yourself whether their characterization of the Act is biased or not.

 

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Blauser v. Diubin: Whether order is signed or unsigned, appeal must be from final judgment and not "minute order" granting nonsuit

 

Appellate court explains the crucial difference between a minute order and a judgment 

The old maxim holds true:  appealability is jurisdictional, meaning that an appellate court lacks jurisdiction to consider an appeal from a non-appealable order.  In California and most other jurisdictions, an appeal must be taken from a final judgment or an order made appealable by statute.  This is illustrated by the opinion of the Fourth District, Division Three, in Blauser v. Dubin (November 19, 2024) G063715 (https://law.justia.com/cases/california/court-of-appeal/2024/g063715.html).

In one of the typically concise and well-written opinions from the Fourth District, Division Three, the court explained the appellant's opening brief referenced a "judgment of dismissal" despite the fact the trial court adopted the increasingly common practice of not issuing any sort of final judgment.  Rather, the court granted a motion for nonsuit, a motion arguing the claim of one party against another cannot go forward, by way of an unsigned "minute order."   Such are prepared by the Clerk and entered in the record, often without the Judge's signature.

This caught the appellate court's attention, which asked the parties to brief the issue of whether the appeal was proper.  The appellant then obtained a signed copy of the minute order, filing a "notice of entry of judgment" attaching the signed order, and then filing the notice of entry of judgment in the trial and appellate courts.

The appellate court explained this signed minute order did not constitute a final judgment or order appealable by statute:

Though now signed, the minute order is (still) not labeled as a

“judgment” and it (still) does not purport to enter “judgment.” (§ 577.) Nor does it order the “dismissal” of appellant’s first amended complaint (though the cross-complaint was dismissed at the request of respondent). (§ 581d [a written, signed dismissal order “shall constitute” a judgment].)

Orders granting nonsuit motions are not among the appealable orders listed in section 904.1. “Although an order granting a nonsuit is nonappealable, an appeal can be taken from the subsequent judgment of nonsuit.” (4 Cal.Jur.3d (2024) Appellate Review, § 58; see Smith v. Roach (1975) 53 Cal.App.3d 893, 895, fn. 1.) “[I]nsofar as the appeal purports to be from the minute order granting the motion for nonsuit, it is premature and must be dismissed.” (Bauer v. Jackson (1971) 15 Cal.App.3d 358, 363, fn. 1.) (Id., p. 3.)

The Fourth District rejected the argument the a minute order and judgment are "functionally equivalent," noting such an approach would lead to confusion as to what is and is not appealable.  Moreover, the court noted California's Code of Civil Procedure section 581c(c) regarding dismissals contemplates a motion for nonsuit shall be followed by an actual signed judgment. 

The appeal was therefore dismissed without prejudice to be refiled once a final judgment or appealable order had been obtained.

Lessons for practitioners

Even though section 581c(c) provides a motion for nonsuit shall be an "adjudication on the merits," unless there is a judgment as a to particular party, that party may not appeal the granting of the nonsuit.  Alternatively, a signed "order of dismissal" is equivalent to a judgment per Code of Civil Procedure section 581d.  However, an order of dismissal must actually state a party is dismissed and should be entitled an "Order of Dismissal of [name of party]" and make specific reference to section 581d in order to make this crystal clear.

More broadly, for the sake of clarity any "minute order" or other order of the court that a party wishes to appeal should be reduced to a judgment.  Further, this judgment should be signed by the Court and attached to a "notice of entry of judgment" filed with the trial court and served upon all parties, this being crucial because doing so starts the 60-day period in which an opposing party may appeal.  If this notice is not given the other party may have up to 180 days to appeal resulting in a surprise "notice of appeal" once the case has been long-closed.  Of course, in any timely appeal, this "notice of entry of judgment" should be made part of the appellate record.

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Hot topic -- Posting a Bond to Stay Enforcement of Judgment Upon Appeal

Why a Civil Defendant May Need to Post a Bond to Appeal

A certain high-profile defendant has been in the news lately in regards to posting a bond to stay enforcement of a large judgment, so large it is likely (though far from certain) that it will be reduced on appeal.  I will not name the defendant but suffice it to say that the coverage of this issue has evidenced more political bias than understanding of the legal concepts involved.  A review of California law involving appeals and enforcement of judgments may therefore be helpful.

A judgment creditor may generally start enforcing the judgment upon notice of entry of the judgment

The plaintiff or other party with a monetary judgment in their favor becomes the judgment creditor while the party with a monetary judgment against them is a judgment debtor.  Once the Clerk of the Court has "entered" a judgment in the record, said judgment may generally be enforced up to ten years from its date.  Such enforcement may begin immediately unless, for example, the trial court grants a stay or the judgment debtor chooses one of the options below. 

 

As a practical matter, there is usually some delay in enforcement as a judgment creditor should obtain one or more "abstracts of judgment" from the Clerk of the Court in the county where the judgment has been entered.  The creditor must then "record" these in any counties where the debtor wishes to enforce the judgment by, for example, filing a lien.

General Rule: judgments are stayed pending filing a notice of appeal

A defendant in a civil suit generally has 60 days after being given proper notice of entry of judgment to file a notice of appeal. (California Rules of Court, rule 2.)  As an aside, there is a complex series of extensions related to filing post-trial motions such as a motion for a new trial.

Judgments are generally "stayed" upon filing an appeal, meaning they cannot be enforced, but, as discussed below, there are exceptions, the most important involving the enforcement of judgments for sums of money. (Code of Civil Procedure section 916; Code of Civil Procedure section 917.1.)

Exception:  monetary judgments

Crucially, monetary judgments are not automatically stayed pending an appeal. (Code of Civil Procedure section 917.1)  This is for the obvious reason that a judgment debtor would then have an incentive to appeal even if there is no merit to the appeal; such a delay, of course, may make it less likely the judgment creditor will later be able to find the judgment debtor's assets.

There is an exception to this exception, though.  Judgment amounts that are for "costs of suit" only are stayed despite the rule noted above.  If a party makes a successful offer under Code of Civil Procedure section 998, i.e., a reasonable offer to compromise is made and then rejected, the enforcement of costs awarded to a successful offeror under section 998 is stayed upon filing a notice of appeal. (Id.)

How to appeal without paying the judgment creditor 

A judgment debtor is subject to attempts to seize their assets, garnish their wages, or place a lien upon their accounts if the judgment is not stayed pending appeal.  Because it may be difficult to recover funds once paid to the judgment debtor, the judgment creditor should explore the options below to avoid payment of the judgment while the appeal is pending.

1. Posting a bond or undertaking by an "admitted" or "personal" surety

This is most often done by posting a bond by "an admitted surety insurer," meaning a "surety" - someone who will post the bond and then be responsible for payment of the judgment if the appeal is not successful - that is licensed in California. (Id.)  The bond amount would be 150% of the judgment. (Id.)  The additional amount beyond the judgment itself may be necessary to cover the "simple interest" upon the judgment at the annual rate of ten percent.

It goes without saying that an admitted surely will require payment in some percentage of the bond or undertaking to provide this service.

The posting of a bond or undertaking may also be done by a friend or relative, i.e., a "personal surety." (Id.)  The amount posted by the personal surety must be 200% of the judgment. (Id.)  

The requirements for being a personal surety are found in Code of Civil Procedure section 995.510 and include 1) being a resident of California, and 2) having net assets in California that exceed 200% of the judgment.  Neither an attorney nor the "principal," the judgment debtor, may act as a personal surety. (Id.) 

2. Depositing money with the Court

If one cannot obtain a bond or undertaking and nevertheless wishes to appeal, does one have to pay the judgment directly to the creditor to avoid seizure of assets?  The answer is no:  the judgment debtor may deposit money or negotiable securities directly with the Court. (Code of Civil Procedure section 917.1)

The complete text of section 917.1 is quoted below:

917.1. (a) Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following:
(1) Money or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action.
(2) Costs awarded pursuant to Section 998 which otherwise would not have been awarded as costs pursuant to Section 1033.5.
(3) Costs awarded pursuant to Section 1141.21 which otherwise would not have been awarded as costs pursuant to Section 1033.5.
(b) The undertaking shall be on condition that if the judgment or order or any part of it is affirmed or the appeal is withdrawn or dismissed, the party ordered to pay shall pay the amount of the judgment or order, or the part of it as to which the judgment or order is affirmed, as entered after the receipt of the remittitur, together with any interest which may have accrued pending the appeal and entry of the remittitur, and costs which may be awarded against the appellant on appeal. This section shall not apply in cases where the money to be paid is in the actual or constructive custody of the court; and such cases shall be governed, instead, by the provisions of Section 917.2. The undertaking shall be for double the amount of the judgment or order unless given by an admitted surety insurer in which event it shall be for one and one-half times the amount of the judgment or order. The liability on the undertaking may be enforced if the party ordered to pay does not make the payment within 30 days after the filing of the remittitur from the reviewing court.
(c) If a surety on the undertaking pays the judgment, either with or without action, after the judgment is affirmed, the surety is substituted to the rights of the creditor and is entitled to control, enforce, and satisfy the judgment, in all respects as if the surety had recovered the judgment.
(d) Costs awarded by the trial court under Chapter 6 (commencing with Section 1021) of Title 14 shall be included in the amount of the judgment or order for the purpose of applying paragraph (1) of subdivision (a) and subdivision (b). However, no undertaking shall be required pursuant to this section solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14.

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