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Trial attorneys are familiar with the three common standards of appellate review: substantial evidence, abuse of discretion, and de novo. But what standard of review applies when an unsuccessful plaintiff appeals? When the plaintiff is arguing that the trial court should have found its evidence more persuasive, a fourth standard of review applies, something like...Read More >>

Appealability is a jurisdictional question. A jurisdictional question is one that the law answers either one way or the other, and there is nothing the court can do about it. So when a court answers a jurisdictional question with, "under the circumstances," that is a clue that something strange is going on. That is how...Read More >>

When a court orders a party to move out of a residence, that is a mandatory injunction, which is automatically stayed upon appeal. But if the court also orders the sale of the property, the order is stayed on appeal only if a bond is given. And if the parties later stipulate to a different...Read More >>

Filing an appeal is not hard. There is no particular form required. All that is needed is to identify the order you are appealing, and to file it before the deadline. But as a recent case illustrates, you might not even have to identify the right order. As long as it is filed on time,...Read More >>

I have written before that checking the wrong box on the Judicial Council form notice of appeal likely will not doom your appeal. But I have also written that, if you continue using the Judicial Council form, you are likely to continue giving your adversary — and the courts — cause to question the sufficiency of your...Read More >>

It is rare that the Court of Appeal will issue a writ instructing the trial court to grant summary judgment. But that is what happened in the published opinion in Forest Lawn Memorial-Park Association v. Superior Court (D4d2 Oct. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4618080 (no. E076549)(https://lnkd.in/gmx5GNmi). After the defendant filed a motion for summary...Read More >>

Devastating trial court orders should be appealable. That is a natural assumption. And that it why it can be disconcerting to learn about appeals dismissed on grounds of nonappealability. (That is why I write about them.) But actually, the opposite may be true: When more orders are made independently appealable, it means there is more...Read More >>

It is not enough to appeal your case. You have to keep your case alive until the Court of Appeal has a chance to get to it. That is the lesson of Badea-Mic v. Detres (D3 Nov. 23, 2020) **no. C085459 (nonpub. opn.). The appellant appealed an order authorizing the sale of the property, but the property...Read More >>

There are two reasons I am surprised the Court of Appeal published the opinion in Findleton v. Coyote Valley Band of Pomo Indians (D1d2 Sep. 29, 2021) 2021 WL 4452323 nos. A156459 etc., ---- Cal.Rptr.3d ----. The first is that it holds, more forthrightly than I have seen before, that a final collateral order is treated as...Read More >>

Pop quiz: How much time do you get to file a motion for attorneys' fees (or a notice of appeal) after an order denying a new trial motion? a. 30 days b. 60 days after notice of entry of judgment c. 180 days after entry of judgment d. It depends on how order denying the...Read More >>

CEB has republished my article Excessive Interrogatories Violate the Rules of Civility, Appellate Court Says at their website as, "The Risks of Serving Too Many Interrogatories". The article is about two important but subtle rules of civil discovery in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). The first is that you cannot submit...Read More >>

When opposing a motion for summary judgment, seeking a continuance to conduct additional discovery should always be considered. A single piece of evidence may be enough to successfully oppose summary judgment, both in the trial court and on appeal, so even if you don't have that piece of evidence yet, making a record that it...Read More >>

Judge David O. Carter of the Central District of California made national news when he ordered Los Angeles to put up $1 billion to address its homelessness crisis. But that order was based on claims the plaintiffs did not allege, relief the plaintiffs did not request, and evidence the plaintiffs did not adduce. While trial...Read More >>

There are two noteworthy things about the published opinion in Strobel v. Johnson & Johnson (D1d4 Sept. 21, 2021) 2021 WL 4272711 no. A159609. First, it suggests how litigants might avoided the dreaded Sanchez rule that prevents experts from offering "case-specific hearsay" in their opinions. Second, it suggests some evidentiary rulings may be reviewed under the appellant-friendly de novo...Read More >>

Rarely does it give such satisfaction to report the dismissal of an appeal. A group of businesses who had benefited from local protectionism — which had prevented newer businesses from competing with the incumbents — were dismayed when the trial court struck down the protectionist scheme as unconstitutional. Though the incumbents were not parties to...Read More >>

Orders entered prior to a judgment typically are not appealable unless they are separately listed in Code of Civil Procedure section 904.1, the statute defining what orders are appealable. One exception is for collateral orders. A collateral order an order that has nothing to do with the merits of the lawsuit. So when a collateral...Read More >>

There are two important reminders about motions for summary judgment in Steger v. CSJ Providence St. Joseph Medical Center (D2d5 Aug. 16, 2021) 2021 WL 3615548 no. B304043 (nonpub. opn.). The first reminder is that the appellate court may affirm on any ground, even if the trial court never reached that ground. The second reminder is that,...Read More >>

You probably have heard of appeals being dismissed on procedural grounds, or as frivolous. But you could practice law rather a long time and never hear of an order being summarily reversed on appeal. But that is what happened in the improbably titled case IAHLDHFAPIMP_PAP, LLC v. Noll (D4d1 Aug. 11, 2021) no. D077727 (nonpub. opn.) But don't get...Read More >>

In appeals from mixed discretionary and factual findings, it can be tempting to fault the trial court for failing to consider all the great evidence in the appellant's favor. But be careful not to ignore the "heavy burden" required to get review of factual questions. Failing to comprehensively evaluate the evidence against the appellant resulted in a...Read More >>

You may think this is obvious, but I continue to see attorneys get tripped up by this question: When an appeal from a judgment is taken, which generally stays matters in the trial court (matters that are are "embraced therein or affected thereby" (CCP § 916)), does the appeal prevent the trial court from awarding...Read More >>

You might know that petitions for writs of mandate filed in the California Courts of Appeal are rarely granted. And that petitions for review in the Supreme Court are granted even more rarely. But a recent case gives an idea what it looks like when they are granted. Promptly after the assignment of a judge...Read More >>

After a disappointing ruling, a motion for reconsideration is often tempting. It is much cheaper and faster than an appeal, and, who knows, maybe the judge really did just overlook a key fact and will correct it after taking a second look. But in the case of a final judgment having been entered, the trial...Read More >>

Three years and one SLAPP appeal into litigation over a commercial real estate dispute, defendants filed a second anti-SLAPP motion in in Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (D4d3 Aug. 20, 2021) 2021 WL 3700752 [no. G058687] (nonpub. opn.). But the statute says anti-SLAPP motions must be filed within 60 days...Read More >>

When it comes to expert evidence, the trial court may properly exclude evidence that was not actually prepared by the expert. The normal rules of evidence authentication still apply, even where experts are concerned. But when an expert wants to offer opinions based on the same unauthenticated and unadmitted evidence, excluding that opinion is an...Read More >>

An order of contempt is not directly appealable. (Code Civ. Proc., § 1222.) It is reviewable only by writ. But what about an order of fees following a contempt order? The statute does not provide for appellate review or writ review, and the factors for writ review just do not apply to a cost order....Read More >>

Closing arguments at a jury trial are critical for trial counsel because it provides the opportunity to tie together all the disparate threads presented to them during the course of the trial. But often, opposing counsel will see things very differently. And they will draw very different inferences from the evidence — and lack of...Read More >>

There are two important but subtle rules of civil discovery that come to the surface in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). The first is that you cannot submit the same interrogatory twice: if you don't like the answer (or lack of an answer) you got the first time, you had better...Read More >>

They can't be serious about that. That is what you probably think when you read rule 8.204(a) of the California Rules of Court. It sets forth a lot of pretty commonplace requirements for appellate briefs. It requires tables of contents and authorities, headings and subheadings, that kind of thing. It also says parties must "support...Read More >>

The California Supreme Court in *Daly v. San Bernardino County Board of Supervisors* (Aug. 9, 2021) ___ Cal.5th ___ has decided one particular area of the law is unclear and needs "reexamination." When a trial court grants an injunction, and the injunction is appealed, does the injunction still apply during the appeal? When the Board of...Read More >>

Motions for new trial are seldom granted. So seldom, in fact, that many attorneys — and judges, too — don't even know what to do when it happens. For example, a plaintiff has a right to a jury trial, and that includes a right to have the jury determine the amount of damages. So what...Read More >>