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When you are trying to determine if an order is appealable, that question is normally pretty cut-and-dried. But not in the probate case of Manvelian v. Manvel (D2d7 Jun. 22, 2021) no. B297334 (nonpub. opn.). The Second District Court of Appeal spent several paragraphs, evaluated the factual record, and threaded its analytical needle through multiple cases, including 100-year-old...Read More >>

If the trial court ruled in your favor, do not make the mistake of assuming that by serving a "Notice of Ruling" you have invoked the 60-day deadline for your opponent to file a notice of appeal. A notice of ruling is a pointless document from the standpoint of appellate procedure. In Harter v. Rancho Rios Homowners...Read More >>

I do not know who needs to hear this, but the Court of Appeal does not want to take any chances: While there are many tools of persuasion in the advocate's toolkit, accusing the court of being on the take from the Irvine Company, and being as corrupt as Tom Girardi, are not among them....Read More >>

Counsel preparing for a trial involving expert witnesses need to keep two cases ready to hand: The first is Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, which prohibits experts from giving wild-eyed speculations on lost profits. And the second is People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which prohibits parties from offering otherwise...Read More >>

So you think you understand legal presumptions? Well, do you know the difference between a presumption that affects the burden of production, and one the affects the burden of proof? If not, do not feel too bad. The trial judge in Felix v. People of California (D5 Jun. 8, 2021) no. F080255 (non-pub.) didn't understand the difference,...Read More >>

You are ready for oral argument. You have checked the tentative and you are ready to explain why the judge got it wrong. But unfortunately, the Superior Court for this particular county does not hold oral argument unless, after the court posts the tentative ruling, you give notice to the court and opposing counsel that...Read More >>

So you have a judgment that is about to expire, but the judgment-debtor has filed for bankruptcy. Can you renew the judgment? Or does the bankruptcy stay apply until the stay expires? Yes, says the recent published opinion in Rubin v. Ross (D4d2 Jun. 4, 2021) no. E074210. Yes to both. Justice Menetrez concurs, asking: both? That...Read More >>

I confess I probably would have turned away the defendant in this case had he asked me to take up his appeal from a judgment finding him liable as the alter ego of his company on a loan obligation. Alter ego findings are very difficult to reverse, and the defendant in Creation Harmony Trading, Inc. v....Read More >>

Counsel: ...and plaintiff's ability to enforce recruh‘s closure and endangerment standards. Judge Easterbrook: The plaintiffs ability to enforce what? Counsel: Recruh's closure.... Judge Easterbrook: Could you use English words, please? Counsel: Yes, Your Honor. The Resource Conservation and Recovery Act. Judge Easterbrook: You will find that we are generalists rather than specialists, and using jargon...Read More >>

Class actions only very loosely resemble the practice of law as most attorneys know it. Yes, they involve plaintiffs suing defendants in court before a judge. But most of the class members don't even know they're in the case, and wouldn't know their attorney if he showed up and their doorstep delivering their settlement check...Read More >>

Two recent appeals were dismissed because the entity defendants were not in good legal standing. One was crosswise with the taxing authorities. Another never formally organized. As a result, both their appeals were dismissed. (But the nonexistent entity gets the judgment against it vacated as part of the dismissal. How's that for failing upward?) Appellants...Read More >>

Family court orders, such as domestic violence restraining orders, are often difficult to reverse because they are subject to a very deferential standard on appeal. A Court of Appeal will only reverse if it concludes the family court abused its discretion. But the abuse-of-discretion standard has limits. And when the family court misapplies the legal...Read More >>

And a Reversal Based on Curious Reasoning Unpublished opinions usually are unpublished because they are uneventful. But sometimes, unpublished opinions are unpublished maybe, just maybe, because they contain reasoning that might not hold up to scrutiny. In this case over misappropriation of trade secrets concerning computer chip used in truck engines, the jury found that,...Read More >>

The Satanic Temple, miffed it was not selected to give the invocation at the local city council meeting, sued the City of Scottsdale for discrimination. At the two-day trial, the plaintiffs presented an as-applied discrimination theory, arguing city councilmembers were biased against the Prince of Darkness. Unpersuaded, the district judge found the plaintiffs failed to...Read More >>

Appeals are rarely dismissed because of defects in the notice of appeal. But rare is not the same as never. In prior posts (most recently here), we have discussed the liberal treatment of notices of appeal. But you are hereby warned of an important limitation to that rule, at least in appeals from orders denying petitions...Read More >>

The plaintiffs in Aghaian v. Minassian (D2d8 May 24, 2021) no. B296287 are children of Iranians who fled during the Iranian Revolution. Their parents had amassed a large amount of property, and had asked the defendant, a family friend, to recover it for them. Turns out the defendant used the opportunity to enrichment himself by some $34...Read More >>

And it would have been entitled to it, too, and the appellant not stipulated to the remedy. Here is an under-appreciated consideration in appellate procedure: If you are the party that prevailed at trial, and you collect on your judgment pending appeal, what's the worst that could happen? Would it surprise you to learn that...Read More >>

In case you think me a Cassandra with my frequent warnings about losing your appeals to technicalities, I have three Court of Appeal opinions from just this week to buck you up. All three opinions promise that, no, the Court of Appeal is not looking for picayune errors in your notice of appeal for an excuse to...Read More >>

It is a horrifying thing to find that your appeal has been dismissed. And it can happen very easily. An appeal can be dismissed because the notice of appeal was filed late – even a day late. Or because the notice of appeal had the wrong box checked on it specifying the wrong type of order (even though...Read More >>

One thing about appeals that can potentially can be deceptive is the record on appeal. When you appeal, all your evidence goes in the record. That means the Court of Appeal will consider all your evidence, right? Not necessarily, as the appellant learned in Epstein v. Prescott Neighborhood Partners, LLC (D1d1 May 13, 2021) no. A159185 (non-pub.). The trial...Read More >>

The judgment-enforcement case of R Consulting & Sales, Inc. v. Kim (D4d1 May 13, 2021) (non-pub.) provides several useful lessons. For attorneys representing judgment-creditors, the case provides an interesting application of a wage garnishment against a debtor's sham companies. For appellants, it provides a caution in careful drafting of the notice of appeal, and a warning that post-judgment...Read More >>

One of the most effective pieces in winning an appeal is issue selection. Most attorneys know, for example, that "de novo" issues are best on appeal: the Court of Appeal will not pay any deference to a trial court on issues of law. And most attorneys also know that "abuse of discretion" issues are lousy...Read More >>

There is an important point of trial practice about filing dispositive motions in limine in Tung v. Chicago Title (D1d3 Apr. 28, 2021) no. A151526 (published). That point is: Don't. The same point is made about relying on nonstatutory motions for judgment on the pleadings. Finally, there is also an excellent tip for expediting an appeal of an...Read More >>

As attorneys, it is important to have an internal dialogue asking: Is the judge in our case going to wonder, are we the baddies? "Hans.. I have just noticed something. ... Have you looked at our caps recently?" "Our caps?" "Yeah, the badges on our caps, have you looked at them?" "What? No, a bit..?"...Read More >>

Filing an appeal is not hard. There are only a few basic requirements. But in Ditech Financial LLC v. Talasera and Vicanto Homeowners' Association, 2021 WL 1718214 (9th Cir. Apr. 30, 2021), appellant failed all of them. To prepare a valid notice of appeal, the notice simply needs to “specify the party or parties taking the...Read More >>

If you were to read the eight-page factual summary of the abusive juvenile in People v. S.O. (D3d2 May 7, 2021) no. E075778, you would be disappointed by the payoff in terms of application of those troubling facts to law. That is because the legal application consists entirely of just two sentences: "We offered minor an opportunity...Read More >>

Appeals are dismissed on untimeliness grounds with regularity. This opinion, dismissing an untimely appeal, provides analysis that may help you avoid a similar fate. The problem, in short, is failing to appreciate that, while Rule 8.108 of the Rules of Court may extend the deadline to appeal, that rule never extends the deadline beyond 180 days from...Read More >>

Here is an appellate procedure trick I wish I'd thought of. Unlawful detainers are designed for speedy adjudication of landlord/tenant disputes. But there was one way a tenant could readily delay the process by several weeks or months (in this particular case, by over two years): by filing a motion to quash the complaint. A...Read More >>

In September 2020, we reported that the Fourth District held Amazon liable in strict liability for an exploding battery sold on its online store, because Amazon inserted itself into the chain of distribution when it charged for the purchase, and stored, packaged, and delivered the product. Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431 (Bolger). Seven months later, the Second District...Read More >>

What's the worst can happen by taking an appeal too early? I am asked this often (and I've discussed related topics here and here), and the California Supreme Court case of Kurwa v. Kislinger (2017) 4 Cal.5th 109 always comes to mind. The worst that can happen? Five years of litigation, four trips to the Court of Appeal, two trips to...Read More >>