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Client asks an attorney to file a lawsuit over a business dispute. "Your lawsuit has merit," the attorney says, "but it will cost more than it is worth. Based on my normal fee it would not make sense." "I understand, but this is about vindicating a principle." While considering this a bit irrational, attorney says...Read More >>

Attorneys are aware how important it is to confirm the precedential value of a case. One factor that can greatly disturb the citability of an appellate decision is whether the California Supreme Court has decided to review it. Practitioners may be aware that, until a 2016 change to the rules, when the Supreme Court granted review...Read More >>

The recent case of Rubio v. CIA Wheel Group (D2d8 Apr. 15, 2021) no. B300021, reminds that awards of punitive damages are reviewed independently by the appellate courts. Rubio also provides a nice illustration how dicta – observations made by prior courts that are not part of their holdings – may be used effectively. In Rubio, an employee claimed she...Read More >>

Facing an adverse judgment, considering a motion for new trial is a must. But beware: win or lose, the order on a motion for new trial can result in thorny procedural issues, both in the trial court and on appeal. A case in point. Contrares-Velazquez v. Family Health Centers of San Diego, Inc. (D4d1 Apr. 7, 2021)...Read More >>

Here is an easy way to get tripped up. A new trial motion is a common postjudgment motion that must be raised to preserve certain issues for appeal (most commonly excessive damages). If the court denies your new trial motion, the denial is not an appealable order. But if the court only partially denies the new trial...Read More >>

The Second District Court of Appeal has the latest update in the fight over Charles Manson's estate. As previously reported in Forbes and elsewhere, there are three principal players in the dispute. First is Charles Manson's penpal and memorabilia collector Michael Channels. Channels purports to be the sole beneficiary of the Manson estate under a disputed 2002 will....Read More >>

... not when the clerk happens to get around to filing it. In recent months – even before Covid, but even more since – I have seen clerks failing to promptly process filings. You have probably noticed it, too. Depending on the filing, this may create problems. For a notice of appeal, which has jurisdictional consequences, the date...Read More >>

While the parties were clearing up their eviction matter, the tenant-plaintiffs in Mayorga v. Mountview Props. Ltd. (D2d5 Apr. 9, 2021) no. B298284, noticed that landlord-plaintiff had not answered their complaint. So they pounced: they took landlord's default, and got a default judgment of nearly $500,000. When landlord got notice of the default judgment nearly a year...Read More >>

In this appeal of a relatively rare denial of a petition to compel arbitration, Presiding Justice Gilbert and Justice Tangeman each authored an opinion. After you read Gilbert's opinion, you will surely agree with it. But then read Tangeman's opinion, and tell me you haven't changed your mind. In Wells Fargo Bank, N.A. v. Agak...Read More >>

About 3-4% of appeals are dismissed on technical grounds. But in addition to that, many more go through full briefing on the merits, but still ultimately fail on technical grounds. Here is an appellate effort that failed for purely technical reasons. Ghannoum v. Sevier (D2d2 Apr. 7, 2021) no. B304026 (unpublished). (The court also clearly was not excited...Read More >>

When a party lacks standing – a legal interest in a case – that is a jurisdictional defect. Jurisdictional defects are fatal, and cannot be waived, or stipulated to. But not in Silva v. Humboldt Cnty. (D1d1 Mar. 11, 2021) no. A160161. Humboldt County voters passed a tax measure on marijuana cultivators back in 2016. The measure...Read More >>

In a surprising split-decision, the Second District held trust beneficiaries who voluntarily decline to participate in mediation forfeited all rights to object to the mediated settlement. In Breslin v. Breslin (D2d6 Apr. 5, 2021) no. B301382, the settlor of a trust valued at upwards of $3 million provided for gifts to many charitable and nonprofit organizations. Those groups...Read More >>

The California Supreme Court in In re A.R. (Apr. 5, 2021) no. S260928 held that failing to file a timely notice of appeal is not necessarily fatal in a dependency case. This is a surprising holding because, as most practitioners know, reviewing courts treat appellate deadlines as jurisdictional in nature: a hard limit on the court's very authority to act,...Read More >>

In this wage-and-hour action in Zhang v. Shao (D4d3 Apr. 1, 2021) no. G058045, the defendant employer made a number of procedural missteps, resulting in plaintiffs' obtaining summary judgment. (Technically, summary adjudication, followed by plaintiffs' voluntary dismissal of their remaining claims.) Before appealing, employers tried to undo the damage in the trial court. But they bungled that,...Read More >>

Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals.  We discuss: Pitfalls in failing to make crucial posttrial motions (FRCP 50). The vastly different approaches to oral arguments in federal court. The impact of amicus...Read More >>

There are a few curious turns in Marriage of Sellers (D2d6 Mar. 25, 2021) 2021 WL 1134891, No. B306844 (unpublished). While unpublished, it provides a good roadmap – with citable authority – to making a limited appearance without waiving jurisdictional challenges. And if one is inclined toward a cynical view about appellate courts' selective treatment of appealability issues as...Read More >>

The Good News for Defendant: The Ninth Circuit reversed plaintiff's summary judgment on its breathtaking $1.8 billion Lanham Act claim. The Bad News: In light of all defendant's discovery abuses, the Ninth Circuit wonders aloud whether the district court, when reconsidering the matter, might simply enter a default judgment against it on remand. In AECOM Energy and Construction...Read More >>

I previously reported a case suggesting that a legitimate Covid excuse might afford some relief from the otherwise strict deadline to file a notice of appeal. Yesterday, however, another case rejected just such a argument. The recent case is Yuzon v. Contra Costa County Comm. Coll. Dist. (D1d2 Mar. 29, 2021) no. A161834 (unpublished). Plaintiff's complaint, alleging...Read More >>

Covering the differences between California state and federal appeals on the California Appellate Law Podcast (available Tuesday, Mar. 30), co-hosts Jeff Lewis and I discussed with guest Cory Webster the importance of Federal Rules of Civil Procedure 50, governing motions for judgment as a matter of law made before submission to the jury and after judgment. If...Read More >>

In another cautionary tale for respondents on appeal, the Second District in this appeal of an order denying arbitration holds the trial court erred in finding an arbitration agreement unenforceable. The opinion in Alvarez v. Altamed Health Servs. (D2d8 Feb. 4, 2021) No. B305155 (published) suggests a couple ways respondents might try to shore up potential defects in...Read More >>

Waiver or forfeiture of arguments is a big concern for appellants on an appeal. But rarely do courts find that a respondent had waived or forfeited an argument. In Travis v. Brand (D2d8 Mar. 19, 2021) 2021 WL 1049863 (published), various citizens, political action committees, and elected officials, and other political operatives litigated over whether to redevelop the Redondo Beach waterfront....Read More >>

After the 2020 reversal of an arbitrator's award in Brown v. TGS Mgm't Co., LLC, I noted that it may be hasty to conclude arbitration awards are not worth appealing. Reversal is possible where the arbitrator's error "violates a party's unwaivable statutory rights or that contravenes an explicit legislative expression of public policy." An employee's right...Read More >>

Here is a tip if you are defending a judgment: If appellants fail to raise an issue, do not raise it for them. That is what happened in Foster v. American Marine Svs Group Benefit Plan, 2021 WL 930257 (9th Cir. Mar. 11, 2021). As a result of respondent/appellee's helpful assist in raising the dispositive issue...Read More >>

Settlements of litigation sometimes involve a provision to enter a stipulated judgment in the event the defendant fails to perform. A judgment entered upon stipulation typically is not subject to challenge on appeal, as the stipulation means the appellant is not "aggrieved," and thus lacks standing. That was not the case in Park Lane Assocs., LP...Read More >>

All attorneys know appeals are an uphill climb. But that is not really true of appeals of summary judgments. Not only are summary judgments reviewed de novo, but the court strictly construes the moving papers, liberally construes the opposing papers, and reviews the evidence in a light most favorable to the appellant. Sensing reversal of...Read More >>

Here is an unsettling thought: You are successfully litigating a disputed legal point. You obtain a preliminary injunction in your favor. You then proceed to trial. But before the court issues its judgment in your favor, another county superior court, faced with the same legal question, issues a preliminary injunction deciding the question against you....Read More >>

In a hyper-formalistic holding in Mostafavi Law Group, APC v. Larry Rabineau, APC (D2d4 Mar. 3, 2021) No. B302344 (published), a judgment entered on an agreement under Code of Civil Procedure section 998 was vacated. The defendant's 998 offer did not include a signature line for the plaintiff to sign, though the plaintiff signed it anyway, and...Read More >>

We recently discussed strategic dismissals following devastating, but nonappealable, interlocutory orders in order to expedite an appeal in California state court. (The dismissal has to be with prejudice, however: don't get into a Kurwa v. Kislinger snafu.) But beware if you are in federal court: A recent Ninth Circuit decision in Langere v. Verizon Wireless Services, No. 19-55747 (9th Cir. Dec....Read More >>

Here is another recent opinion in which the Court of Appeal thumbs its nose at the California Rule of Court that prohibits the citing of unpublished opinions for any reason. (Ironically, the Court of Appeal does its nose-thumbing in an unpublished opinion.) In the hit-and-run personal injury case of Shui v. B.R. & Sons (D2d2 Feb. 25, 2021) No. B299251...Read More >>

Approaching the 60-day deadline to appeal the trial court's dismissal of her action, plaintiff filed a notice of appeal. But the Court of Appeal in Lee v. Medrano (D2d5 Feb. 24, 2021) No. B305536 (unpublished), dismissed her appeal. Why? Because the dismissal was not signed, as required under Code of Civil Procedure section 581d, and thus not appealable....Read More >>