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As the legal community tests the waters with in-person trials after the Covid lockdowns, pro tem judges may continue to be an attractive option. Like private arbitration, pro tem judges offer more flexibility and availability than Superior Court judges. And contrary to arbitration, parties electing to use a pro tem judge preserve their right to...Read More >>

In the ongoing probate litigation over the Disney estate in Lund v. Cowan, No. 20-55764 (9th Cir. 2021), the 9th Circuit recently called probate court "the Unhappiest Place on Earth" in response to Los Angeles Superior Court Judge David Cowan's actions against Walt Disney's grandson, Bradford Lund. Lund had already waited 15 years for his...Read More >>

When I wrote about Wong v. Lee (D2d1 Jul. 15, 201) no. B293892 (nonpub. opn.) last month, I noted its analysis and holding of the limits of the appellate stay doctrine. But after the opinion was modified (nonsubstantively) after petitions for rehearing, I noticed the case raises several other common appellate missteps that trial attorneys may find instructive....Read More >>

A "substantial evidence" appeal is among the toughest to reverse. That is when the challenge to the judgment is based on one of the trial court's factual findings. An appellate court will almost never disturb a trial court's finding on a factual question. To get a reversal, you have to show there is literally no...Read More >>

Did you know that, when you appeal a mandatory preliminary injunction, the injunction is automatically stayed? An appeal in that instance can be very powerful. But when is an injunction truly mandatory? Whether an appeal is mandatory or prohibitory can be very tricky to determine. Getting it wrong can be devastating, as the appellant learned...Read More >>

Filing a notice of appeal is deceptively simple. There is a Judicial Council form you can use. Everyone knows there is a 60-day deadline to file the notice of appeal (though when it starts running can be a little mysterious). There is no reason to consult an appellate attorney for something so simple as filing...Read More >>

A recent case shows how recovery of costs can involve large dollar amounts – over $1.5 million – and the application of subtle legal principles and appellate procedure. In City of Los Angeles v. Pricewaterhousecoopers, LLP (D2d5 Jul. 8, 2021) no. B305583 (nonpub. opn.), a contractor agreed to modernize the billing system for the water and power...Read More >>

Family court appeals are difficult because they delay an already bitter experience. The Court of Appeal is aware of this when it admonishes the family court that a recent appeal "might never have arisen had the trial court exercised its authority to make a capacity determination." Despite repeated objections by the wife that the husband's recent life-threatening...Read More >>

The first question any trial attorney must be able to answer is: What is the theory of my case at trial? Once you've answered that, the next question to consider is: What is the theory of my case on appeal? The attorneys in Mahanuntawong v. Kittithanyaphak (D1d1 Jul. 9, 2021) no. A158610 (nonpub. opn.) had a pretty...Read More >>

Awards for emotional distress can add tens or hundreds of thousands of dollars to a workplace-retaliation claim. But there are limits. And in this recent case, the court pointed to counsel's personal attack during closing argument as evidence the verdict was based on improper factors. In Briley v. City of West Covina (D2d4 Jul. 1, 2021) no....Read More >>

One reason I like to read unpublished opinions is they are a little bit less guarded in their analyses. Even if the outcomes would not be different had the opinion been published, the courts sometimes offer analyses that seem somewhat unusual, or incomplete, or even surprising, and these can give a glimpse into how the...Read More >>

Starting the 60-day clock for your opponent to file a notice of appeal requires strict compliance with the California Rules of Court, including the service requirements. That means a proof of service. Even actual notice in court is no substitute.Also, if an unlawful detainer doesn't suit you, have you considered an elder abuse restraining order?...Read More >>

"I have done a lot of appeals," a colleague told me recently discussing how important evidentiary objections were at trial, "and I have never seen a court reverse because of an evidentiary ruling." It is true that a trial judge's rulings on evidence are rarely fertile grounds for reversal on appeal. That is because those...Read More >>

One tactical benefit of filing an appeal is the potential to stay the underlying proceedings. The automatic stay rule observes that only one court at a time may have jurisdiction over an issue, and protects the appeal from becoming moot before the appellate court has an opportunity to reach the merits. But the automatic stay...Read More >>

The Court of Appeal awarded over $25,000 in appellate attorney fees as sanctions against the unsuccessful appellants in Trumble v. Kerns (D4d1 Jun. 28, 2021) no. D076490 (nonpub. opn.), and an additional $8,500 in court costs as further sanctions. The appellants are sisters, and one side of a "dysfunctional family" engaged in a ten-year dispute over their mother's...Read More >>

MS Word by default inserts "passim" in your Table of Authorities. The 9th Circuit discourages it -- the court wants to see every page where the authority is cited (unless the authority appears on nearly every page). See https://cdn.ca9.uscourts.gov/datastore/uploads/guides/Shell_Brief.pdf. Bryan Garner's LawProse.org has this entry on passim, suggesting it may be rather archaic by now: passim...Read More >>

As time passes in litigation, counsel should give a care to changes that may render their client's cases moot. This is particularly common when equitable relief is sought, such as injunctions. And it tends to be more common on appeal. That is what happened in Brown v. U.S. Bank, N.A. (D5 May 4, 2021) no. F079568 (nonpub....Read More >>

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 >>